Claimant, an inmate proceeding pro se, filed this claim against defendant State
of New York (defendant) alleging that he suffered personal injuries on April 12,
2004, when he fell while exiting the shower at Southport Correctional Facility
(Southport). Trial of the matter was held on January 25, 2007 at Elmira
At trial, claimant testified that he was handcuffed behind his back and was
required to walk backwards according to prison procedure when he exited the
shower. He indicated that inmates are not allowed to look over their shoulders
while proceeding backwards, and that he tripped over the three-inch lip at the
door frame and fell on his back on the handcuffs, injuring his back, right arm
and right side. He contended that the fall has caused lumbar spasms in his back
for nearly three years. Claimant testified that he takes prescription
medication and has a TENS unit, but the medical treatment has not been effective
in relieving his pain.
Claimant contends that defendant was in violation of its own regulations when
he was taken from the shower that day. 7 NYCRR § 305.3 (b) provides in
pertinent part: “[i]f the inmate is to remain under escort, the inmate
shall be handcuffed in back without a waist chain.” Claimant argues that
he was not under escort, as required by that regulation. Claimant testified
that he interpreted “under escort” to mean that a guard would be
required to stand next to him, close enough to catch him if he fell.
In support of his claim, claimant introduced an inmate grievance complaint
dated September 10, 2003 (Claimant’s Exhibit 2). This grievance was not
filed by claimant, but rather by another inmate, “M. Smith.” In the
grievance, Smith requests permission to look over his shoulder while backing out
of the shower, because his herniated disk and nerve damage render him physically
unable to exit the shower safely in the method mandated at the facility.
Claimant contended that this grievance constituted prior notice to defendant of
a dangerous condition, i.e., an inmate with his hands handcuffed behind his back
being required to back out of the shower, over a sill, without being able to
look over his shoulder to see where he would be stepping.
Claimant also testified that he had previously filed a grievance regarding the
same issue, indicating his concern that not being able to look back over his
shoulder when exiting the shower would lead to a fall. Apparently this
grievance was dismissed, and claimant was advised to address his concerns to the
officers escorting him. Claimant testified that he never discussed his concern
about falling with the escorting officers.
Correction Sergeant Thomas Hannah testified on behalf of defendant. Hannah was
the on-site shower supervisor in the cellblock the day claimant was injured.
Hannah confirmed that inmates are required to back out of the shower (as well as
out of their cells) at Southport, with their hands cuffed behind their back. He
indicated that Southport is a maximum security facility, and that prisoners are
sent to Southport because of disciplinary infractions at other facilities. For
this reason, security measures at Southport are very strict, and the guards are
trained to follow mandated security procedures exactly.
Hannah testified that inmates are not allowed to move around outside their
cells without restraints, and that Southport's orientation manual specifically
requires that inmates' hands be cuffed behind their back when being taken to and
from the showers. Hannah further stated that security concerns also form the
basis for refusing to allow inmates to look over their shoulder when exiting the
shower. He said that when a person turns his head to look over his shoulder,
the entire upper torso turns with it. This movement can be interpreted by the
guards as an act of aggression by the inmate, as it would be identical in
appearance to the commencement of a lunge at the guard. He testified that this
rule is imposed both for the safety of the guards and of the inmates.
Hannah also testified regarding Southport's procedure for taking the inmates to
and from the showers. He said that one officer would be outside an inmate's
cell, cuffing him before letting him out of his cell. The other officer would
stand outside the showers, and remove the cuffs after the prisoner entered the
shower, and replace them before the prisoner came out of the shower. On
cross-examination, claimant attempted to make the point that the inmate would
not be under escort from the cell to the shower when this procedure is utilized.
Claimant's contention on this issue is irrelevant to his claim, however, because
he testified that his injury occurred when he was exiting the shower, rather
than on the walk to or from his cell.
Moreover, Hannah testified that inmates were not prohibited from looking down
at their feet while exiting the shower. He suggested that looking down would
actually be more effective to prevent a fall than looking over the shoulder, as
it is physically impossible to see where a person is placing their feet when
they are looking over their shoulder. Claimant testified that some guards might
not allow an inmate to look down while stepping out of the shower. However,
claimant's testimony both lacked credibility and relevance on that issue, as he
did not testify that he was not allowed to look down on this particular
It is by now well-established that the State has a duty to maintain its
facilities in a reasonably safe condition (see 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 ). Further, when
an inmate fails to use ordinary care, he must take responsibility for his own
negligence (see Carter v State of New York, 194 AD2d 967 ).
To prevail on his claim, claimant must prove by a preponderance of the credible
evidence that a dangerous condition existed, that the State either created said
dangerous condition or had actual or constructive notice thereof and failed to
alleviate the condition within a reasonable time, that the 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
A finder of fact must consider numerous factors in assessing whether any
particular situation constitutes a dangerous condition, including the injured
party's familiarity with the area, whether any prior accidents have occurred and
the nature of the area surrounding the defect (see Trincere v County of
Suffolk, 90 NY2d 976 ). In other words, whether the condition is
dangerous “ 'depends on the peculiar facts and circumstances of each case'
and is generally a question of fact” (id. at 977, quoting
Guerrieri v Summa, 193 AD2d 647 ).
In this case, the Court finds that under the existing factual circumstances,
claimant has not established the existence of a dangerous condition. The
existence of a sill at the shower door to prevent water from running out onto
the cellblock floor is both reasonable and readily apparent to anyone traversing
it. Claimant admitted that he had been moved in and out of the shower numerous
times, and that he was aware of the existence of this sill. Moreover, claimant
himself admitted that he had not raised his concern with the officers escorting
him, despite having been told to do so. Sergeant Hannah's testimony that
inmates could look down to see where they were placing their feet, combined with
the lack of any credible testimony from claimant that he was not allowed to do
so, as well as claimant's familiarity with the situation, is more than adequate
to convince the Court that this situation did not constitute a dangerous
Additionally, the grievance previously filed by either another inmate or the
claimant himself does not establish prior notice of a dangerous condition.
Neither grievance indicates that any injury had been incurred; rather, the other
inmate was simply concerned, due to his own unique medical condition, that he
might sustain an injury under the circumstances. Claimant was also
concerned that he might fall. These concerns are not indicative of the
existence of a dangerous condition.
Defendant's motion to dismiss the claim for failure to establish the existence
of a dangerous condition, made at the close of claimant's case, is granted.
Claim No. 109549 is hereby dismissed.
Let judgment be entered accordingly.