New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2008-010-032, Claim No. 110489


Inmate visitor slip and fall on wet floor. No liability. Floor not wet for a long enough time to allow defendant to rectify the condition.

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:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 16, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 metal detector.

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.[1] 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. 18)

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 the door.

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[2] 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 problems.

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.


September 16, 2008
White Plains, New York

Judge of the Court of Claims

[1]. If a female visitor does not clear the metal detector, then the visitor has the option of being searched or proceeding through the metal detector again after removing her bra in the restroom.
[2]. Bryant was promoted from Correction Officer since July 17, 2004.