Claimant, an inmate, seeks damages from defendant State of New York (defendant)
for injuries sustained when he fell in the shower area in the F-2 dormitory
bathroom at Woodbourne Correctional Facility (Woodbourne). Trial of this claim
was bifurcated, and this decision pertains solely to the issue of liability.
The shower area of the bathroom for the F-2 cellblock consisted of five shower
heads in a shower area across from a wall where a number of sinks were located.
Claimant testified that atapproximately 10:30 p.m. on May 31, 2000, after
turning off the shower and taking three or four steps toward the sinks, his
feet slipped, causing him to fall and sustain injuries. Claimant testified that
there were no mats on the floor to prevent slipping, and that the floor was made
of marble. Claimant resided in that cellblock for approximately two weeks
before the incident, and showered daily during that time. He said the floor was
wet and slippery at the time he fell, and that it had been wet and slippery
every time he showered prior to his accident. Claimant stated he was wearing
rubber “shower shoes” when he fell, and that there were
of water all over the
floor. Although his testimony regarding the depth of the water in the puddle
(four to five inches) contradicted his deposition testimony (one to two inches),
claimant did testify at trial that the water was deep enough to come up over the
sole of his shower shoes and into contact with his foot, which was consistent
with his deposition testimony of one to two inches of water.
He stated that the amount of accumulated water at the time of his accident was
typical of the conditions in the shower area generally. He had used a squeegee
to remove excess water from the floor on prior occasions, but said he did not
have the chance to use it after his shower on that occasion, although it was
available. He said he did not know where the mats were kept, and further stated
that it was not his job to put down the mats. He did see water on the floor
prior to entering the shower, and admitted that he neither cleaned it up before
entering the shower, nor had he ever reported the condition to a correction
Inmate Rivera testified on claimant's behalf. He was using a urinal on the
wall adjacent to the shower area when claimant fell, and witnessed the fall. He
said there were no mats on the floors, and that the mats were put down only when
inspections were held. According to Inmate Rivera, the mats could not be put
down while showers were being taken, as their presence would prevent any
accumulated water from being pushed with the squeegee into the drains.
Claimant introduced into evidence a memorandum from the Acting Deputy
Superintendent for Security at Woodbourne, dated January 11,
Recently we have experienced several inmates slipping, falling, etc., while
Please ensure that the shower mats are in place and the assigned porters are
mopping excess water in order to prevent any further incidents. They may be
rolled up for cleaning, then put back in place.
Your cooperation is appreciated.
Also presented at trial was the Inmate Injury Report regarding claimant's
and a brief handwritten memorandum from
the Sergeant who investigated the
Defendant presented Deputy Superintendent Peter Chiavaro to testify regarding
the conditions and layout of the shower area. Claimant objected, and requested
the opportunity to conduct a voir dire, which was granted. Claimant's inquiries
clearly established that Chiavaro was not employed at Woodbourne at the time of
the accident, nor had he been employed at that facility since 1991, well prior
to the accident. Claimant's objection to the relevance of Chiavaro's testimony
was sustained. A similar objection was made to the presentation of deposition
testimony of Steven Lowry, who was at one time Deputy Superintendent of Security
at Woodbourne. Like Chiavaro, he was not employed at the facility when
claimant's accident occurred. As a result, Lowry’s proposed testimony
concerning the procedure for putting down the mats and the layout of the shower
was clearly not relevant to the accident, and claimant's objection to the
admission of his deposition into evidence was also sustained.
At the conclusion of the trial, during summation, claimant made a request that
a “missing witness inference” be drawn against defendant for its
failure to call Correction Officer Green to testify at trial. The Court hereby
denies claimant's request. Initially, pre-trial discussions between both
counsel and the Court regarding witnesses and scheduling made it clear that
defendant did not intend to call CO Green to testify at trial. Consequently,
claimant's failure to object at that time, and subsequent objection after the
close of testimony, was untimely (see Thomas v Triborough Bridge & Tunnel
Auth., 270 AD2d 336 ). Moreover, claimant was not precluded from
either deposing this witness or securing his presence at trial by means of
subpoena (see Schittino v State of New York, 262 AD2d 824 , lv
denied 94 NY2d 752 ). In any event, even if the Court were to draw
an adverse inference, the finding herein would be the same.
It is well established that the State has a duty to maintain its facilities in
a reasonably safe condition (Preston v State of New York, 59 NY2d 997
); however, the State 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 ; Condon v State of New
York, 193 AD2d 874 ).
To prevail on his claim, claimant must prove that a dangerous condition
existed; that the State either created said dangerous condition or had actual or
constructive notice thereof and failed to alleviate said condition within a
reasonable time; that said dangerous condition was a proximate cause of the
accident; and that claimant sustained damages (see Gordon v American Museum
of Natural History, 67 NY2d 836 ; Mercer v City of New York,
223 AD2d 688 , affd 88 NY2d 955 ). In order to constitute
constructive notice, a defect must be visible and apparent, and must exist for a
sufficient length of time prior to the accident to permit the defendant to
discover and remedy it (Gordon v American Museum of Natural History,
supra at 837).
In determining this case, it is important to note that whether a condition is
dangerous such that a defendant must take remedial measures depends upon the
context or environment within which the condition is found. The defendant
“will not be held liable for injuries arising from a condition on [its]
property that is inherent or incidental to the nature of the property, and that
could be reasonably anticipated by those using it” (Stanton v Town of
Oyster Bay, 2 AD3d 835, 836 , lv denied 3 NY3d 604 ).
Water in a shower or bath area is a condition necessarily incidental to that
particular use, and is not in itself a dangerous condition establishing
negligence on the part of the landowner (see e.g. O'Neil v Holiday Health
& Fitness Ctrs. of N.Y., 5 AD3d 1009 ; Conroy v Saratoga
Springs Auth., 259 App Div 365 , affd 284 NY 723 ;
Perez v State of New York, Ct Cl, June 28, 2005, Ruderman, J., Claim No.
107215 [UID # 2005-010-038]). In order to establish liability under those
circumstances, the claimant must show that the condition which was allegedly the
proximate cause of the injury was “unusual” or “inherently
dangerous”, rather than “typical” of the conditions found in
such an area (Moore v State of New York, Ct Cl, Sept. 16, 2004,
Fitzpatrick, J., Claim No. 103850 [UID # 2004-018-330]).
Upon evaluation of the evidence, the Court finds that this claimant has not
proven by a fair preponderance of the credible evidence that an unusually
dangerous or defective condition existed in the F-2 shower area at Woodbourne
where he fell. The evidence submitted to the Court simply did not establish the
existence of an unusually wet situation such that the condition allegedly
causing claimant's injuries was inherently dangerous above and beyond the
ordinary risks associated with the natural combination of showers and wet
floors. Rather, claimant's own testimony was that prior to the accident, the
floor was consistently slippery and wet, as any reasonable person would expect.
Further, he testified that he clearly observed the wet condition of the floor
prior to the accident.
The memo submitted by claimant as Exhibit 1 established only a general
knowledge of a recurring condition in the shower area which should readily be
anticipated by any reasonable person taking a shower. No evidence whatsoever
was submitted to show that the presence of mats on the floor would have
prevented claimant's accident.
Defendant's motion to dismiss the claim, made at the close of the case, is
granted. The Court finds that the floor where claimant fell was neither
unusually wet nor inherently dangerous, but was instead simply typical of
conditions commonly found in a shower area. The claim is hereby
Let judgment be entered accordingly.