Claimant seeks damages for injuries she allegedly sustained on Saturday, July
17, 2004 at Downstate Correctional Facility (Downstate), where claimant was
visiting her son, who was incarcerated. The trial of this claim was bifurcated
and this Decision pertains solely to the issue of liability.
All visitors undergo a screening procedure in the front lobby of Building 5
before they are admitted to visitation. On the weekends, the front lobby is
usually crowded and the admission procedure can be lengthy. Upon presentation
of identification, a visitor’s pass is issued and those visitors bringing
packages are required to have their packages inspected. The packages are then
sent to the package room for distribution to the inmates. The visitors then
proceed through a metal detector before they are permitted entry into the
visiting rooms. Restrooms are located approximately three to four feet from the
Claimant testified that on Saturday, July 17, 2004, she arrived at Downstate
at approximately 11:00 a.m. It was a hot, sunny day and she was wearing flip
flops. Claimant underwent the initial screening procedure and then proceeded on
line through the metal detector. While waiting on line, claimant heard a woman
remark, “somebody should get the water off the floor or somebody will
fall.” Claimant walked through the metal detector and an alarm sounded.
Claimant was then scanned with a handheld metal detector, which also activated.
At the direction of the correction officers, claimant went to the restroom to
remove her bra and place it in a paper bag.
According to claimant, she proceeded to the restroom approximately seven minutes
after hearing the statement about the water. Claimant noticed water in the
hallway in front of the ladies’ room. There were no wet-floor signs
posted. She was unaware of any other place to remove her bra, so despite the
water, she entered the restroom.
Once inside the ladies’ room, claimant observed a great amount of water
at the entry and lesser amounts of water farther inside the area. Claimant
testified that she was in the restroom for approximately one to two minutes;
nonetheless she maintained that when she exited, she noticed more water in the
hall than had previously been present. She also observed two flattened brown
paper grocery bags on the floor that had not been there earlier. The bags
appeared to have been placed over the water. Claimant walked through the water
and then stepped onto the bag, figuring it was safer. The bag slipped and
claimant fell backwards landing on her left side. According to claimant, she
could not have avoided walking on the bag. Claimant estimated that she fell at
approximately 11:10 a.m.
The deposition testimony of Juanita Strother, another visitor to Downstate on
July 17, 2004, was received into evidence (Ex. 25). Strother was registered at
10:15 a.m., approximately one-half hour before claimant, but did not enter the
visiting room until 11:15 a.m. While in the front lobby, Strother observed
water coming from the ladies’ room, so she decided to use the men’s
room rather than the ladies’ room. Strother testified that she believes
she said something to the officers about the water because, “[k]nowing me
the way I know me, I’m quite sure I did” (Ex. 25, p. 32, l. 7).
“I’m pretty vocal about things like that” (id. at l.
Correction Officer Francis Fuentes testified that on July17, 2004, he was in
the front lobby processing visitors. Fuentes registered claimant for check-in
at 10:50 a.m. One-half hour earlier, at 10:15 a.m., he issued a visitor’s
pass to Juanita Strother. Fuentes testified that Officer Miller had advised
Fuentes that there was water on the floor, and at 11:05 a.m., Fuentes radioed
maintenance to report the problem. Fuentes did not check the condition himself.
He explained that correction officers are responsible for security and do not
mop floors. Inmate porters are responsible for cleaning the front lobby and are
called when needed.
Correction Officer Brenda Miller testified that she was assigned to monitor
the metal detector on July 17, 2004 during the 8:00 a.m. to 4:00 p.m. shift.
Miller testified that shortly before 11:00 a.m. she had been advised by a
visitor that the ladies’ room floor was wet, so when Miller finished
processing the visitor she was with, Miller went to the ladies’ room. She
observed water in the hallway and on the floor in front of the sink closest to
Miller described the wetness in the hallway as basically footprints. She
retrieved a wet-floor sign that was stored in the men’s room and asked a
coworker to notify maintenance. Miller believes that claimant fell before the
wet-floor sign was in place. Miller did not see any paper bags on the floor.
She estimated that only a few minutes elapsed between the time that the visitor
reported the water to Miller and the time of claimant’s fall.
Sergeant Thomas Crowe testified that he was working July 17, 2004 on the 8:00
a.m. to 4:00 p.m. shift in Building 5. His duties included making rounds
through the visiting area and the restrooms to check for fire and safety
hazards. He acknowledged that he would have made a round prior to the start of
the visitation process. According to Crowe, wet-floor signs were stored under
the stairs and available to any correction officer; however mops and buckets
were stored in the men’s room and were not used by correction officers.
After claimant’s fall, Crowe responded to the area. He observed water
in the hallway and on the ladies’ room floor. The water on the
ladies’ room floor seemed to be coming from a pipe underneath a sink. The
water in the hallway appeared to be from people tracking water from the
restroom. The water was not flowing over the saddle between the restroom and
the hall. He did not recall seeing any bags placed on the floor.
Sergeant Joseph Bryant
testified that he
responded to the area after claimant’s fall. He observed a posted
wet-floor sign and the wetness on the ladies’ room floor. He did not see
any water or paper bags in the hallway. At the beginning of the shift, Bryant
had checked the entire area, including both restrooms, and did not see any water
Bryant testified that the procedure for summoning inmate porters involved
placing a call to the housing unit to request the porter assigned for the day.
The housing unit is in another building approximately five minutes away.
Akhileshk Srivastaua testified that he is assigned to heating, power, and
cooling issues at Downstate, and on July 17, 2004, he substituted for
maintenance personnel. After claimant’s fall, he responded to the scene.
He observed wet footprints in the hallway and a wet floor in the ladies’
room near the right sink. Srivastaua saw water dripping from the sink and shut
off the water. He was in the ladies’ room approximately five minutes. He
did not see any paper bags on the floor or wet-floor signs posted.
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 or their
visitors 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). 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 New York, 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.
Significantly, there is no basis for finding that the floor had been wet for an
appreciable length of time prior to claimant’s fall so as to permit
defendant to rectify the condition prior to claimant’s fall (see
Bernhard v Bank of Montreal, 41 AD3d 180 [defendants did not have
sufficient opportunity to remedy wet floor from heavy rain, where routine
mopping had been completed seven minutes before plaintiff’s fall]).
Indeed, the evidence established that defendant acted promptly in its efforts to
rectify the condition and, unfortunately, claimant fell prior to the completion
of the cleanup (see Diaz v State of New York, 256 AD2d 1010
[correction officer was in process of mopping water which was on floor 10 to 15
minutes when claimant slipped and fell. State did not act unreasonably in
commencing cleanup, but not completing cleanup]).
Thus, claimant failed to establish by a preponderance of the credible evidence
that defendant was negligent in its maintenance of the area. Rather, the Court
finds that claimant was bound to see that which was there to be seen (see
Persing v City of New York, 300 AD2d 641, 642; Johnston v State of New
York, 127 AD2d 980, 981) and she must take responsibility for her own
negligence in failing to use ordinary care (see Stasiak v Sears,
Roebuck and Co., 281 AD2d 533 [complaint dismissed in slip and fall case
where plaintiff could have easily observed puddle of spilled paint]; Carter v
State of New York, 194 AD2d 967). Therefore, the Court finds that
claimant’s own negligence was the sole proximate cause of her fall.
Accordingly, defendant’s motion to dismiss, upon which decision was
reserved, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 110489.