New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-041-503, Claim No. 107660


Claimant’s slip and fall claim dismissed for failure to prove actual cause of claimant’s fall.

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:
Defendant’s attorney:
New York State Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Julio Smith (claimant), while descending an exterior set of concrete stairs at the Clinton Correctional Facility (CCF) on March 23, 2002, slipped, fell and slid down the flight of stairs. Other than Sergeant James Douglass, an employee at CCF, who was called for two questions to corroborate that claimant had complained of falling (after its occurrence), claimant was the only witness at trial. No exhibits were introduced and the defendant called no witnesses.

At the conclusion of claimant’s case, the defendant moved to dismiss the claim for failure of claimant to prove a prima facie case. The Court reserved decision. The Court now grants defendant’s motion to dismiss the claim.

The only testimony offered by the claimant regarding his fall was his explanation that upon taking his very first step upon the set of stairs, he “slipped” and slid down the stairs. This represented the entirety of claimant’s testimony on his fall. He gave no indication and presented no evidence as to what caused his slip, upon what he slipped, the condition of the stair or set of stairs at the time of his fall, or the condition of the stair or set of stairs at any time prior to his fall.

Claimant’s testimony was almost entirely devoted to explaining the injuries he allegedly sustained by reason of the fall, the reasons for his delay in reporting the fall, and his complaints of being denied timely medical care for the treatment of his injuries.

“Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). “It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]).

However, “[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur” (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

The State’s liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

The record is absolutely barren of the reason claimant slipped, upon what or why he slipped and of the condition of the stairs upon which he slipped. Accordingly, claimant failed to prove a dangerous condition existed, failed to prove the defendant had actual or constructive notice of a dangerous condition and failed to prove any action or inaction of the defendant, negligent or otherwise, caused his fall and his resulting injuries.

“[F]ailure to prove what actually caused a [claimant] to fall in a situation where there could be other causes is fatal to a [claimant’s] cause of action” (Dapp v Larson, 240 AD2d 918, 919 [3d Dept 1997]). The inability of claimant to identify the alleged dangerous condition would require the Court to rely upon “nothing more than surmise, conjecture and speculation” as to the cause of claimant’s fall and is fatal to his claim (Martin v Wilson Mem. Hosp., 2 AD3d 938, 939 [3d Dept 2003]; Curran v Esposito, 308 AD2d 428, 429 [2d Dept 2003]).

To the extent claimant’s testimony at trial describing the injuries he allegedly sustained, the denial of proper medical treatment of those injuries and the development of a “degenerative disc disease” he thereby suffered by reason of being denied timely medical care, can be viewed as given in support of a claim founded in medical malpractice, it too must fail.

It “is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity” (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).

Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that “neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment” (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

“Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).

The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept1997], lv denied 91 NY2d 810 [1998]).

Claimant was the only witness at trial. He introduced no exhibits. In order to prove his case, claimant is obligated to produce competent expert medical proof setting forth the standard of care obligated to be provided to him by defendant and to further produce expert medical testimony or proof establishing the failure of defendant to provide such care, and that the failure to provide such care was the proximate cause of the injuries he sustained. The claimant failed to present any such testimony or documentary evidence.
Defendant’s motion to dismiss the claim for failure of claimant to present a prima facie case is granted. The claim is dismissed.

All motions not previously decided are hereby denied. Let judgment be entered accordingly.

April 24, 2007
Albany, New York

Judge of the Court of Claims