New York State Court of Claims

New York State Court of Claims

GARY v. THE STATE OF NEW YORK, #2007-044-018, Claim No. 106140


Inmate's claim for injuries incurred when he allegedly slipped in an icy recreational unit dismissed where he did not establish the existence of an unusually dangerous condition by a preponderance of the credible evidence. Moreover, claimant's contention that the State is liable for his injuries due to a breach of its ministerial duties to provide him with galoshes must fail where no proof was adduced that the injuries were causally related to such violation.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, filed this claim against defendant State of New York (defendant), alleging that on February 9, 2001, he suffered personal injuries when he slipped and fell in an icy recreation unit at Southport Correctional Facility (Southport).[1]
Trial of the matter was bifurcated and held in the Binghamton District on May 22, 2007, and the parties thereafter submitted post-trial memorandums of law. This decision addresses only the issue of liability.

Claimant arrived at Southport in December 2000, having been transferred there from another correctional facility. At trial, he testified that he requested the opportunity to go outside for recreation at Southport every day, except when it was raining. Claimant said he became concerned about the condition of the recreation units[2] soon after he arrived at Southport, and conveyed his concerns to Correction Officer Kwasnik, who was assigned at that time to make daily rounds on the second floor of cellblock A, where claimant resided.

Claimant stated that when the conditions in the units did not improve, he filed an inmate grievance on January 13, 2001. The grievance stated in pertinent part: “the recreation cages in A-block are not being properly cleaned & maintained when there is snow-ice in the cages & walkway. It is very slippery & dangerous conditions [sic] in the A-block rec-yard.” Claimant said he put the grievance in an envelope addressed to the Inmate Grievance Resolution Committee, and put the envelope in the box for mail which was brought past all the cells on a daily basis. Although the copy of the grievance submitted into evidence at trial (Claimant's Exhibit 4) did not bear an assigned grievance number,[3] claimant testified that the copy was made of his original grievance, prior to its submission to the facility and the assignment of a grievance number, and that he never received any response to this grievance. Claimant said that at the time the grievance was filed, he had been outside for recreation at Southport approximately 15 to 20 times, and that the units had not been properly cleaned 4 or 5 of those times. He further stated that the units were not properly cleaned once or twice between his alleged filing of the grievance on January 13, 2001 and the accident date of February 9, 2001.

Claimant further testified that he requested to wear galoshes and gloves for recreation several times while he was at Southport. He said he received gloves on occasion, but never received any galoshes. He claimed that he was advised by a correction officer that galoshes were not available at Southport. He said he requested the galoshes both for warmth and to assist with his stability on the slippery conditions in the recreation units.

Department of Correctional Services (DOCS) Directive # 4933 was submitted into evidence (as Claimant's Exhibit 2). This directive, which provides standards and requirements for the operation of Special Housing Unit (SHU) facilities[4] throughout the State, contains two sections pertaining to the provision of galoshes to inmates. The first, section 302.2 (h), provides in pertinent part:
(h) Inclement weather items. Certain State-issue items will be maintained on the unit and will be provided to inmates during exercise periods in the event of cold or inclement weather as follows:

... (2) galoshes or rubbers.

Additionally, section 304.3 (b) provides: “[d]uring periods of inclement or cold weather, inmates will be provided (upon request) with a coat, and galoshes or rubbers.”

Claimant testified that on the day of his fall, he requested the opportunity to participate in recreation, as usual. He was taken outside sometime between 7:30 and 8:00 a.m. in handcuffs and a waist chain in accordance with SHU procedures. He said that the temperature was cold that day - cold enough to “blow steam”[5] - and that the sun was trying to break through the clouds. He also said that there was no precipitation while he was outside, whether in the form of rain or of snow. Claimant stated that the walkway to the recreation units was clear, and there was no snow on the ground. Claimant testified that when he arrived at the recreation unit to which the officers were directing him, he stopped, and advised the officers that he did not want to enter the unit because it was full of ice. However, he received a direct order to enter, so he did. He said that nearly all of the floor of the unit was covered with ice, approximately six inches deep. On cross-examination, claimant “clarified” his testimony, stating that the ice varied in thickness throughout the unit, and further stating that there was water underneath the ice.

Claimant said that when he entered the unit, he had to cling to the sides in order to stay upright. He said he went to the back of the unit to get some sun and when he returned to the front of the unit, having been inside it for approximately 10 to 15 minutes, he slipped on the ice and fell. Claimant said he lost consciousness, and estimated the time he was unconscious as approximately 10 minutes. He claimed that when he regained consciousness, he was lying on ice and in two inches of water, and correction officers were asking him if he was okay. He said the nurse arrived a few minutes after that, and asked him if he was able to move. He responded that he could not, and was subsequently put on a stretcher and thereafter transported via ambulance to a local hospital. He estimated the entire time he was lying on the ground in the water as being approximately 25 minutes.

Claimant further testified that he requested in writing that the facility preserve the videotape recording which was routinely made of the walkway to the recreation area. A copy of a letter to Southport's Superintendent McGinnis was submitted (as Claimant's Exhibit 3), which purported to make this request. The only date on the letter is at the bottom of the page, below the “cc,” and that portion of the letter provides: “not limited too,” and then on the next line: “2-12-01." Attached to that letter as part of the exhibit is a letter to claimant from Superintendent McGinnis, which simply states in pertinent part:


Your request is denied.

Nothing on the letter from the superintendent indicates the nature of the request to which he was responding.

On February 19, 2001, claimant wrote a letter to the Freedom of Information Law Officer Carlsen at Southport (Claimant’s Exhibit 5), requesting copies of all paperwork pertaining to his fall on February 9, 2001. Claimant acknowledged receiving a response in the form of his medical records and other documentation pertaining to the incident.

Claimant was transferred from Southport to Elmira Correctional Facility in April 2001. He testified that he then sent a letter to the grievance supervisor at Southport, requesting the grievance number assigned to his grievance of January 13, 2001 regarding the inadequate cleaning of the recreation units. Claimant said he did not have a copy of that letter, nor did he recall receiving a response.

Edgardo Rosado, another inmate, also testified on behalf of claimant. Rosado said that he first met claimant when they were both housed on the same floor in cellblock A at Southport, sometime in early 2001. Rosado said that prior to the date of the accident, he had spoken to claimant four or five times.

Rosado also requested recreation on the day of the accident. He testified that he was escorted to a recreation unit before claimant, sometime between 7:30 and 8:00 a.m. Rosado said that the weather that day was cold, and that it had been raining when he woke up between 5:30 and 6:00 a.m., although it was not raining when he went outside. He said that the unit into which he was placed was filled with large pieces of ice and some water, but he acknowledged that he did not complain about its condition. Rosado subsequently observed claimant being escorted to the unit immediately adjacent to his. He said that claimant appeared to be objecting to being put into the unit. Rosado stated that approximately 90% of the floor of claimant's unit was covered with ice, with water on top of the ice, and a clear area in the center which was covered only by water. He said that the ice appeared to be four to five inches thick in some places. Upon request during cross-examination, Rosado drew on a picture of a recreation unit to show the area covered by ice.[6] The drawing indicates that approximately 75 to 80% of the unit's floor was ice-covered.

Rosado said that claimant paced around the unit “a few times,” and then fell as he was going toward the front of the unit. He said that the fall occurred approximately 15 minutes after claimant entered the unit. He stated that claimant was lying on the ice and in the water on his back, and appeared to be unconscious for approximately ten minutes, and that he and the inmate in the unit on the other side of claimant's unit were attempting to awaken him by yelling at him. They then started shaking the gates of the units to alert the guards. Rosado said the guards arrived approximately 15 minutes after claimant's fall, and that claimant began to recover consciousness as the guards were arriving. He stated that the nurse arrived approximately five minutes after the guards and examined claimant. Rosado testified that claimant was on the ground for approximately 30 to 35 minutes, and that about 15 minutes remained in the recreation period when claimant was taken away by stretcher.

Rosado stated that he never saw any inmates wearing galoshes during his incarceration at Southport.

Lieutenant Hetrick, a DOCS employee, also testified. At the time of the incident, he was an exercise sergeant at Southport, with responsibility for supervising the exercise program and insuring housing cleanliness. He was employed at Southport for approximately 6 of his 21 years with DOCS. He stated that it was his responsibility in the morning when he came on duty to inspect the recreation units and check their condition. If there was snow or ice, he would have inmates brought out to shovel enough units to contain the number of inmates who had signed up for recreation that day. He said that if salt needed to be put down, the correction officers would do that.

Hetrick testified that the logbook records pertaining to that exercise period indicate that only 6 inmates from the first floor of that housing block wanted recreation that day, and 13 inmates from the second floor also requested it. The log notes indicate that recreation started that day at 7:33 a.m., which he said meant that there was little or no cleanup necessary in the units. He said that recreation started later on days when cleanup was necessary, and that the logbook would also have reflected the necessity for cleanup, which it did not. He said that the first and second floors took recreation together that day, as only a small number of inmates wanted to go outside.

Hetrick said that he always limited the number of inmates taken outside for recreation to the number of clean units that were available. He said that the fact that the first and second floors of the cellblock took recreation together clearly indicated there were enough clean recreation units, as he otherwise would not have run a double shift (both floors).

Hetrick was summoned to the unit when claimant fell. He said that there was some ice in the unit, extending into the unit only about six to eight inches from the edges, and that the floor was wet. He found claimant lying in approximately one-half inch of water, and immediately summoned the nurse. He said he did not fill out an Unusual Incident Report, as he viewed this as simply an accidental slip-and-fall situation.

Hetrick acknowledged the directive providing galoshes for inmates upon request, and said that galoshes were available and kept in a box under the stairs leading to the recreation area. However, he stated that he had never discussed the availability of the galoshes with any of his officers, nor did he recollect any discussion of galoshes at all. He said that no inmate at Southport had ever asked him for galoshes, nor had he ever seen an inmate wearing them while he was employed there.

Former Correction Officer Kwasnik testified on defendant's behalf. Kwasnik was employed at Southport for 18 years. At the time of claimant's accident, Kwasnik was the A-block second floor officer. His responsibilities included making rounds and dealing with problems. The first thing he did in the morning when he came on duty was to take down the names of all the inmates who wanted to participate in recreation that day.

Kwasnik had also worked outside at the recreation area at Southport for somewhere between 5 and 10 years, prior to 2000. He said that while he was working there, the recreation supervisor would check to determine whether any of the units needed maintenance or cleanup, and would make certain that enough units were available to contain all the inmates who wanted to participate in recreation on any given day.

Kwasnik did not recall any inmate asking him in 2001 to have the units more effectively cleared of snow and ice. He stated that he did not think an inmate would have addressed this issue to him, as he was a floor officer and did not have responsibility for cleaning the units. He said that if an inmate had raised this with him, however, he would have advised the recreation sergeant of the request. He did not remember ever having done so. He also did not recall ever having any conversations with claimant, nor did he have any independent recollection of claimant's accident.

Kwasnik said that he had been asked by inmates for the use of galoshes during recreation, and that galoshes were available. He said that there were more requests when the galoshes initially became available, although he did not recall when that happened. He said that the requests trailed off as time went by, but that the galoshes were available for use, and stored in a box under the stairs leading to the recreation yard, throughout the entire time he worked in the recreation area. He did not know whether their availability had ever been discontinued, nor could he state definitively whether they were available in 2001.

The deposition testimony of Nurse Dyal, the nurse who treated claimant in the recreation unit, was also introduced at trial (as Court Exhibit 3), as was the Ambulatory Health Record she created at the time of the incident (as Claimant’s Exhibit 9). That record states in pertinent part:
Received call stating inmate had fallen on ice and would/could not get up. Inmate found laying on back in ½" water. Rec Pen had 6" ice around edges of it. Inmate fully conscious. Moving all extremities well. Inmate transferred to back board & put on stretcher. Brought to Infirmary, c/o back & head pain. . . . transferred to St. Joseph ER via ambulance.

Claimant's medical record from St. Joseph's Emergency Department was also submitted into evidence (as Claimant’s Exhibit 10). Among the written comments thereon is the notation “No LOC,” presumably meaning that claimant had not lost consciousness.

In his post-trial submission, claimant's counsel argued that the Court should draw an adverse inference from defendant's failure to call Superintendent McGinnis to testify regarding “his summary denial of claimant's request that the recreation yard video be preserved for litigation.”[7] Counsel suggests that McGinnis' testimony would have served two purposes: first, to explain why the tape (if one existed, which claimant did not demonstrate) was not preserved; and second, to establish whether his February 13, 2001 letter[8] was actually in response to claimant's purported request that the video be preserved. Claimant's untimely request must be denied. A party seeking a missing witness inference must raise the issue to the Court as soon as practicable (see People v Gonzalez, 68 NY2d 424, 427 [1986]). Pre-trial discussions between both counsel and the Court regarding witnesses and scheduling made it clear that defendant did not intend to call Superintendent McGinnis to testify at trial. That would have been the appropriate point to raise any concern about defendant's failure to show why the alleged tape was not preserved. Claimant's counsel had a further opportunity to raise the issue of McGinnis' failure to testify when defendant's counsel implied during the trial that the letter from McGinnis to claimant might not have pertained to claimant's purported request to retain the video. However, the matter of McGinnis' failure to testify was not raised at either point. Claimant's failure to object at that time, as well as his subsequent objection raised only in his post-trial memorandum, was clearly untimely (see Thomas v Triborough Bridge & Tunnel Auth., 270 AD2d 336 [2000]). Moreover, a claimant seeking a missing witness charge must prove, among other things, that the uncalled witness would have testified favorably to claimant (see People v Gonzalez, supra at 428). Claimant made no such showing, further justifying a denial of his request.

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 that defendant was negligent in its maintenance of the condition of the recreation unit, 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).

It is important to note that whether a condition is sufficiently dangerous that a defendant must take remedial measures depends upon the context or environment within which the condition is found. “Among other things, a party who slips and falls on ice or snow must establish that the injury causing condition was dangerous and different in character from conditions ordinarily and generally brought about by winter weather in the given locality” (Tobias v State of New York, Ct Cl, Dec. 19, 2000, Patti, J., Claim No. 96244 [UID # 2000-013-520]; see Williams v City of New York, 214 NY 259, 263-264 [1915]; Schwabl v St. Augustine's Church, 288 NY 554 [1942]; Van Slyke v New York Cent. R. R. Co., 21 AD2d 147 [1964]; Tirado v State of New York, Ct Cl, Aug. 12, 1998, Bell, J., Claim No. 96320). 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]). For example, mere failure to remove all snow and ice from a walkway does not constitute negligence (Rector v City of New York, 259 AD2d 319, 320 [1999]), unless it is shown that the hazard was increased by what was done to remove the snow (Reidy v EZE Equip. Co., 234 AD2d 593, 594 [1996]).

Upon evaluation of the evidence and assessment of the demeanor and credibility of the witnesses, the Court finds that claimant has not established by a preponderance of the credible evidence that an unusually dangerous or defective condition existed in the recreation unit where claimant fell. Winter in upstate New York is inevitably accompanied by accumulations of snow and ice. While there may well have been some accumulation of ice and water within the unit, the Court did not credit claimant's testimony that the floor of the recreation unit was completely covered by six inches of ice, with water underneath, particularly given the Court's observation of claimant's demeanor and attitude during his testimony. Claimant's credibility was further undermined by his claim that he filed a grievance and later inquired about the status of that grievance, when no such record of either the grievance or the inquiry was contained in defendant's files.

Inmate Rosado's testimony was also not credible. The contradiction between his testimony (that there was an area of the floor in the center of the unit which was free from ice) and that of claimant (that the entire floor was completely covered by six inches of ice) was striking. On the other hand, Lieutenant Hetrick's testimony that there was some ice around the edge of the unit, extending perhaps six inches into the pen, was both credible and corresponded with Nurse Dyal's written report which indicated the same thing.

Accordingly, the Court finds that the condition of the recreation unit was not unusually icy. Further, such conditions should have been anticipated by an inmate who took recreation outside nearly every day in the winter in an area where inclement conditions and snow and ice accumulation are routine in the winter months. Moreover, there was no proof adduced which indicated that defendant exacerbated a hazardous condition in the process of clearing snow or ice from the units (Richer v State of New York, 31 AD3d 943 [2006]).

Additionally, claimant's contention that defendant is liable for his injury due to its “breach of ministerial duty” in failing to provide him with galoshes must also fail. In order to recover for a violation of defendant’s regulations, claimant must prove that such violation was the cause - or at least a cause - of the injury (see Rivera v State of New York, Ct Cl, Feb. 8, 2006, Sise, P.J., Claim No. 102781 [UID # 2006-028-008]). While defendant is clearly required to provide such footwear under appropriate conditions, claimant submitted no proof that would demonstrate that he would not have fallen if he had been wearing galoshes. Claimant has thus not met his burden of proving that the failure to provide the galoshes was a proximate cause of his accident.

Claimant’s failure to prove either the existence of a dangerous condition or that defendant’s violation of its regulations contributed to his accident requires that the claim be dismissed.

Let judgment be entered accordingly.

September 24, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. The Claim also alleged a cause of action for negligent medical treatment which was withdrawn by claimant prior to trial.
[2]. The recreation units at Southport consist of rows of caged-in areas outside, like a pen, each approximately 10 feet wide by 12 feet long, according to Edgardo Rosado, an inmate who testified on claimant's behalf.
[3]. When inmate grievances are received and processed at correctional facilities, they are assigned a grievance number for tracking purposes.
[4]. Southport is a maximum-security facility consisting almost entirely of SHU's.
[5]. All quotes herein were taken from the Court's recording of the proceeding.
[6]. Claimant's Exhibit 1b.
[7]. Claimant's Post-Trial Memorandum, p 26.
[8]. See pp 4 & 5, supra, for a discussion of the relevant evidence.