New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2008-010-024, Claim No. 108076


Inmate slip and fall on wet floor.

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):

Terry Jane Ruderman
Claimant’s attorney:
By: Stephen Chakwin, Esq.Daniel Crupain, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: John M. Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 liability.

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 bag.

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.[1] Rosen opined 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 claimant’s fall.

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 facilities.

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 codes.

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 meters.

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 claimant’s accident.

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 times.
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.


September 5, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Rosen testified as a “qualified expert in thirty-five states [and] investigated over 4,000 slip-and-fall accidents, and testified at least 550 times in cases involving slip-and-fall accidents” (Ray v Walmart Stores, 120 F3d 882, 885 [1997]). In the last decade, he has investigated an additional 2,000 cases and has published his own handbooks relating to slip and falls. Despite defendant’s objection, the Court permitted Rosen to testify as an expert on slip and falls. However, the weight accorded Rosen’s testimony was slight due, inter alia, to his lack of credibility and his exaggerated resume.