New York State Court of Claims

New York State Court of Claims

McKENZIE v. THE STATE OF NEW YORK, #2007-040-007, Claim No. 107781


Pro se
inmate slip and fall on wet floor. Court finds Claimant failed to establish State was negligent in maintenance of floor.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Elvis McKenzie, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 13, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


In this timely filed Claim, pro se Claimant, Elvis McKenzie, has failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with injuries he sustained when he slipped on a wet floor and fell at the small engine shop at Bare Hill Correctional Facility in Malone (Bare Hill). The trial of this Claim was held by video conference on January 17, 2007, with the parties at Clinton Correctional Facility in Dannemora and the Judge at the Court of Claims in Albany.
Mr. Sam Bradford was called as a witness by the Defendant. He has been a vocational instructor (small engines) for seventeen years, the past eleven at Bare Hill. In his uncontroverted testimony, he described the small engine shop as one large area that includes classroom space near the door and another area towards the back of the shop where lawn and grounds equipment is serviced and repaired. A door in the back of the shop leads to another room where work projects are kept.
The basic facts concerning the accident are not in dispute. On November 18, 2002, Claimant slipped and fell while moving a fan from the back room to the main area of the small engine shop. He hit the left side of his head on the concrete floor and lacerated his left forearm (see Ex. B). Claimant was examined by Bare Hill’s facility health services and received additional treatment at Alice Hyde Medical Center in Malone (see Ex. 1). Mr. McKenzie was transferred to the infirmary at Franklin Correctional Facility in Malone later that evening and was cleared for discharge and returned to Bare Hill the next day. In response to a question from the Court asking him how he felt on the trial date, Mr. McKenzie did not voice any complaints and stated he was “a little good today”
The parties dispute, however, the events immediately preceding the accident. Claimant testified that, upon arriving at the small engine shop on the date of the accident, he asked Mr. Bradford if the fan was available and was told that it was in the back room. Mr. McKenzie implies in his testimony (and declares in his Claim) that Mr. Bradford authorized him to retrieve the fan. Mr. McKenzie further testified that, after he went to look for the fan in the back room, the main shop floor was mopped. When he returned to the main shop area with the fan, Claimant slipped on the wet floor and hit his head on the concrete “very hard” and was “out of it.” It is Mr. McKenzie’s testimony that there was no caution sign marking the wet floor.
Mr. Bradford’s recollection of the incident differs from Claimant’s in several crucial respects. He testified that he would permit the fan to be used in the classroom from time to time. He noted, however, that the fan was on a metal base and estimated that it stood some five feet tall and weighed between seventy and eighty pounds. Thus, it was Mr. Bradford’s practice at all times to require that two people carry the fan whenever it was moved.
Mr. Bradford also testified that it was “snowy” on November 18, 2002. Snowblowers had been brought to the back portion of the small engine shop’s main room to be repaired. He noted that snowblowers typically were not cleaned off before being brought into the small engine shop. Thus, the floor would become wet from the snow melt. He testified that the floor was wet on the day of the accident. To address such conditions, Mr. Bradford testified that, before classes began, he would always place a wet-floor sign in the area where the snowblowers were kept. He testified that he personally placed the wet-floor sign in the affected area before class began on the day of the accident. On cross-examination he was “positive” that the wet-floor sign was in place before the accident occurred. “When you [Claimant] came in the program there was a wet-floor sign down. The floor was wet.” Mr. Bradford also testified that he instructed the first inmate who arrived at class to begin mopping the wet area.
When Claimant asked for the fan, Mr. Bradford testified that he warned Mr. McKenzie that the floor was wet and that he did not want him to slip and fall. Thus, Mr. Bradford said that he instructed the Claimant “not to try to move the fan by himself.” The witness noted that a person would have to pass by the area marked by the wet-floor sign in order to get to the back room where the fan was kept. Mr. Bradford said he told Claimant that he would designate someone to help Mr. McKenzie move the fan later, after class had begun and after the floor had dried. Mr. Bradford said he first learned that Claimant had disregarded the order when another inmate told him that Mr. McKenzie had fallen. That same day, Mr. Bradford filed an Inmate Misbehavior Report citing Claimant for having disobeyed a direct order not to move the fan without assistance. In the report, Mr. Bradford notes that he had “counseled inmate McKenzie several times before about carrying the fan by himself” (see Ex. A). Claimant was found guilty of the charge at a disciplinary hearing on November 20, 2002 and that decision was affirmed on November 22, 2002 (see Ex. C).
To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) an injury suffered by Claimant which was proximately caused by such breach. In addition, Claimant must show that defendant’s negligence caused his injuries (see Kampff v Ulster Sanitation, 280 AD2d 797; Patrick v State of New York, 11 Misc 3d 296, 320; Rice v State of New York, Claim No. 107632, dated June 19, 2006, Hard, J., [UID No. 2006-032-505]).
The State has a duty to maintain its facilities in a reasonably safe condition in view of all the circumstances (Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241; Bowers v State of New York, 241 AD2d 760). The State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850; Muhammad v State of New York, 15 AD3d 807; Condon v State of New York, 193 AD2d 874). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings and to see what is there to be seen (Weigand v United Traction Co., 221 NY 39, 42; Lolik v Big V Supermarkets, 210 AD2d 703, 704, rev’d on other grounds, 86 NY2d 744; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43).
In order to establish liability in a slip and fall case, Claimant must prove by a preponderance of the credible evidence that: (1) a dangerous condition existed; (2) the Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a proximate cause of the accident (see Gordon v American Museum of Natural History, 67 NY2d 836, 837; Ligon v Waldbaum, Inc., 234 AD2d 347; Bernard v Waldbaum, Inc., 232 AD2d 596).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence that Defendant was negligent by failing to maintain its facilities in a reasonably safe condition in view of all the circumstances. The Court credits Mr. Bradford’s account of the events and finds his version of the events preceding Claimant’s accident to be more believable than the account offered by Claimant. Mr. Bradford provided persuasive testimony as to the several prompt, reasonable, adequate and proactive actions he took on November 18, 2002 that were specifically designed to avoid the very accident that befell Mr. McKenzie. The Court finds that the preponderance of the credible evidence establishes that the floor was wet when Claimant arrived at the small engine shop on November 18, 2002; that Mr. Bradford provided warning that the floor was wet by placing a wet-floor sign on the affected area before the class began; that he took steps to correct the condition by having the wet floor mopped promptly at the beginning of class; that Mr. Bradford gave Claimant a direct order not to touch the fan since it was too heavy for one person to move safely and because the floor was wet; and, that Mr. McKenzie disregarded that instruction. Thus, the record does not support Claimant’s contention that Defendant breached its duty of reasonable care under the circumstances. Rather, Mr. McKenzie’s accident resulted solely from his own culpable conduct in disregarding Mr. Bradford’s express instruction and by failing to see what was there to be seen in ignoring the wet floor and the caution sign. While the evidence establishes that the small engine shop floor does get wet from time to time, the record also establishes that prompt remedial action was taken in this instance.
Accordingly, Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed.
The Chief Clerk is directed to enter judgment accordingly.

February 13, 2007
Albany, New York

Judge of the Court of Claims

[1].All quotations are taken from the audiotape recording of the trial.