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
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,
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)
throughout the State, contains two
sections pertaining to the provision of galoshes to inmates. The first, section
302.2 (h), provides in pertinent part:
... (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
- 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:
SUBJECT: YOUR LETTER RECEIVED FEBRUARY 13, 2001
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
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
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
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
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
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
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
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
). 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 ). 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
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
). 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 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 ; 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).
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 ; Schwabl v St. Augustine's Church, 288 NY 554 ;
Van Slyke v New York Cent. R. R. Co., 21 AD2d 147 ; 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 , lv denied 3 NY3d 604
). 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 ), 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 ).
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
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
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.