Claimant seeks damages for injuries she sustained on May 29, 2003 during her
incarceration at Bedford Hills Correctional Facility (Bedford). The trial of
this claim was bifurcated and this Decision pertains solely to the issue of
Commencing in January 2003, claimant was housed in the Long Term Care Unit of
the Regional Medical Unit at Bedford (LTC Unit) due to her lower back pain. On
the morning of May 29, 2003, claimant had problems ambulating and used a
four-prong cane to walk from her room, down a corridor, and to the nurses’
station to received her medication. Claimant wore flat rubber flip-flops that
she had purchased at the State commissary. She also owned sneakers and boots.
According to claimant, she never received any instructions regarding appropriate
footwear and no one ever directed her not to wear flip-flops. It was
claimant’s understanding that flip-flops could not be worn throughout
Bedford, but that they were acceptable in the medical unit.
Claimant testified that after taking her medication, she was asked by the
nurse to dispose of a translucent plastic bag of garbage. Claimant did not
notice any liquid leaking from the bag. Holding the bag of garbage in her left
hand and her cane in her right hand, claimant proceeded down the corridor with
the intention of placing the garbage bag in the dumpster located in the pantry.
At approximately 9:20 a.m., when claimant was three-quarters of the way to her
destination, she felt her feet go out from under her and she landed on the
floor, facing in the opposite direction. Once on the floor, claimant noticed a
clear wet liquid around her. She had not observed the liquid before her fall.
Prior to May 29, 2003, claimant had never seen any liquids on the corridor
floor, nor had she ever slipped while wearing flip-flops.
Mary Gilliam, another inmate incarcerated in the LTC Unit, testified that on
May 29, 2003, she saw the nurse hand claimant a bag of garbage which claimant
carried down the hallway toward the pantry. Gilliam saw claimant fall and went
to her assistance. When Gilliam reached the location, she noticed a residue on
the floor surrounding claimant.
Lydia Hernandez, an inmate who shared a room with claimant in the LTC Unit,
testified that she observed claimant take the bag of garbage from their room and
enter the hallway. After claimant fell, Hernandez saw water on the floor next
to claimant. Hernandez surmised that the water might have dripped from the
The deposition testimony of Selma Price, another inmate on the LTC Unit, was
received into evidence (Ex. 36). Price, who used a wheelchair, testified that
on May 29, 2003, she observed water on the floor of the corridor approximately
30 minutes before claimant had fallen (Ex. 36, p. 9). Price described the
puddle as 2½ room lengths long and less than 3 to 4 feet wide, which Price
could straddle with her wheelchair. Like Hernandez, Price testified that she
had observed claimant exit her room immediately before her fall. Both Hernandez
and Price contradicted claimant’s testimony that she fell after leaving
the nurses’ station.
Dr. Stephen I. Rosen, who has a Ph. D in anthropology and human anatomy from
the University of Kansas, a JD from the University of Baltimore and a BA from
the University of California, offered expert testimony on behalf of claimant on
the issue of slip and falls.
that claimant’s fall was caused by an unsafe floor, claimant’s
inappropriate footwear, and liquid on the floor. On May 9, 2007, Rosen visited
the accident scene and performed a dry-slip test on the floor. Based upon this
test and Rosen’s review of what he considered to be the applicable
standards, he concluded that the floor was not slip-resistant. He described
claimant’s fall as a heel- strike slip and fall because both her feet went
flying. Rosen also opined that claimant’s flip-flops were inappropriate
for a medical institution because flip-flops generally have slippery bottoms.
In his view, it was reasonablely foreseeable that patients wearing such footwear
would increase their risk of falling.
Rosen opined that, had the flooring been slip-resistant and properly
maintained, claimant would not have fallen in the absence of a liquid spill. He
further stated that, despite these conditions, if claimant had been wearing
slip-resistant footwear, the fall could have been prevented. Rosen testified
that the liquid on the floor and the flip-flops were independent causes of
On cross-examination, Rosen admitted that he never examined claimant’s
flip-flops and that, prior to claimant’s trial testimony, Rosen had no
knowledge of the composition of claimant’s flip-flops or their condition.
Rosen also conceded that he had no knowledge of the condition of the floor on
the date of claimant’s accident. Thus, the Court found that the dry-slip
test performed by Rosen four years post-accident was not indicative of the
condition of the floor on the day of claimant’s fall, four years earlier,
and the Court accorded no weight to the test results offered by Rosen.
Scott MacPherson, a licensed architect who has been employed by the New York
State Office of General Services for 22 years, testified on behalf of defendant.
In his position as an Associate Architect, MacPherson is responsible for
architectural designs, reviewing building codes, managing other architects, and
field work. In the early 1990's, he was involved in the design of medical
MacPherson testified that the LTC Unit was built in the mid-1990's and was
required to meet the standards mandated by the New York State Fire Prevention
Code. He described the procedures followed for such projects. Referring to the
construction plans of the Regional Medical Unit, which included the LTC Unit,
MacPherson noted that both architects and engineers had certified that the
design complied with all applicable building codes (Ex. C). During
construction, an engineer-in-charge monitored the progress in the field to
insure that the project was built as designed. Upon completion of the project,
the permit personnel approved the site before the client agency occupied the
building. Based on the general procedures and the specific plans, MacPherson
concluded that the Regional Medical Unit complied with the applicable building
MacPherson testified that the flooring chosen for the LTC Unit was Armstrong
Standard Excellon, a vinyl composition tile. Several factors were considered
before selecting this tile, including its past history of use in hospitals,
cost, durability, slip-resistance and aesthetic appeal. According to
MacPherson, it is accepted architectural practice to rely on
manufacturer’s data regarding slip resistance, rather than slip
MacPherson testified that he visited the LTU Unit on April 8, 2008 and
observed that the floor was well maintained with no cracks or lose tiles.
MacPherson, like Rosen, had no knowledge of the floor conditions on the date of
Correction Officer Cheryl Jackson testified that she has been employed at
Bedford for 16 years and has been a Fire and Safety Officer for the past 14
years. Her duties as a Fire and Safety Officer included making rounds to ensure
that the LTC Unit was clear of all hazards. Jackson was not aware of any
accidents, other than claimant’s, involving inmates slipping and falling
on the unit.
On May 29, 2003, Jackson was assigned to the 7:00 a.m. to 3:00 p.m. shift on
the LTC Unit. The logbook for that day indicates that she did five rounds on
the unit before claimant’s fall. The last of the rounds was at 9:14 a.m.,
approximately six minutes before claimant’s fall (Ex. B). Jackson was at
the officer’s desk when she heard yelling. She could not see
claimant’s room from the desk. Jackson went to the area. She did not
observe any liquid substance on the floor.
Jackson testified that, in terms of footwear, inmates had sneakers, boots, and
flip-flops. According to Jackson, flip-flops were only to be worn for showers
and she instructed inmates that flip-flops were inappropriate at other
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).
The State, however, 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). Indeed:
“[w]here the facts proven show that there are several possible causes of
an injury, for one or more of which the defendant was not responsible, and it is
just as reasonable and probable that the injury was the result of one cause as
the other, plaintiff cannot have a recovery, since he has failed to prove that
the negligence of the defendant caused the injury.”
(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also
Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New
York, 179 AD2d 947). Additionally, claimant was bound to see that which was
there to be seen (see Johnston v State of New York, 127 AD2d 980,
981) and when an inmate fails to use ordinary care and pursues a dangerous
course of conduct, she must take responsibility for her own negligence
(see Carter v State of New York, 194 AD2d 967).
In order to prevail on her claim, claimant must show: the existence of a
foreseeably dangerous condition; that the State created the condition or had
either actual or constructive notice of the condition; that the State failed to
remedy the condition within a reasonable time; that such condition was the
proximate cause of claimant’s accident; and that claimant sustained
damages (see Gordon v American Museum of Natural History, 67 NY2d
836; Birthwright v Mid-City Sec., 268 AD2d 401; Mercer v City of
NewYork, 223 AD2d 688, affd 88 NY2d 955).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that there
is a lack of credible evidence to establish claimant’s burden of proof
(see Seneglia v FPL Foods, 273 AD2d 221 [no evidence that
defendant created or had either actual or constructive notice of a wet floor
upon which plaintiff fell]). Other than the testimony of inmate Price, claimant
“presented no proof with respect to how long the puddle in question was on
the floor before she fell” (Deveau v CF Galleria at White Plains,
LP, 18 AD3d 695, 695-96). Significantly, Price’s testimony was
contrary to claimant’s account of her whereabouts prior to her fall.
Additionally, inmate Hernandez also contradicted claimant’s version of the
events preceding her accident. Also, claimant herself testified that she did
not see any water on the floor prior to her fall and that, prior to the date of
her accident, she never saw any liquids on the floor.
The Court found the testimony of Correction Officer Cheryl Jackson, who served
as Bedford’s Fire and Safety Officer for 14 years, to be more believable
than the testimony of inmate Price regarding the existence of water on the floor
prior to claimant’s accident. On the date of claimant’s accident,
Jackson had completed five rounds prior to claimant’s fall, to ensure that
the LTC Unit was clear of all hazards. Jackson’s last round was completed
at 9:14 a.m., approximately six minutes before claimant’s accident, and
Jackson had not noted any hazards or water on the unit. Jackson further
testified that in her 14 years as a Fire and Safety Officer, there had been no
other incidents of inmates slipping and falling on the unit.
Accordingly, the Court finds that claimant failed to establish by a
preponderance of the credible evidence that defendant was negligent in its
maintenance of the area (see Kotsakos v Tsirigotis, 28 AD3d 426;
Pennie v McGillivary, 15 AD3d 639). Specifically, there was no credible
proof that the floor was wet for a sufficient length of time prior to
claimant’s fall so as to permit defendant to discover and remedy it
(see Deveau v CF Galleria at White Plains, LP, 18 AD3d 695,
supra). Thus, defendant’s motion to dismiss, upon which decision
was reserved, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 108076.