New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2007-044-004, Claim No. 107075


Inmate's claim for personal injury damages incurred as a result of a fall in the shower area is dismissed. Claimant did not establish the existence of an unusually dangerous condition.

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:
BY: SCHNEIDER, KAUFMAN & SHERMAN, P.C. Howard B. Sherman, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 7, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 “puddles”[1] 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 officer.

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, 1999,[2] which stated:

Recently we have experienced several inmates slipping, falling, etc., while taking showers.

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 injury[3] and a brief handwritten memorandum from the Sergeant who investigated the shower.[4]

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 [2000]). 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 [1999], lv denied 94 NY2d 752 [1999]). 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 [1983]); 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 [1985]; Condon v State of New York, 193 AD2d 874 [1993]).

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 [1986]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]). 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 [2003], lv denied 3 NY3d 604 [2004]). 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 [2004]; Conroy v Saratoga Springs Auth., 259 App Div 365 [1940], affd 284 NY 723 [1940]; 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 dismissed.

Let judgment be entered accordingly.

February 7, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. All quotations taken from the Court's recording of the proceeding, unless otherwise indicated.
[2]. Claimant's Exhibit 1.
[3]. Claimant's Exhibit 2.
[4]. Claimant's Exhibit 3.