New York State Court of Claims

New York State Court of Claims

FORSHEY v. THE STATE OF NEW YORK, #2008-013-517, Claim No. 107718


Claimant has failed to prove that the State was negligent and responsible for his alleged slip and fall in the shower area of Wende Correctional Facility.

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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was filed on May 7, 2003, after permission to file a late was granted by the Hon. Ren
e F. Minarik, who allowed only a cause of action sounding in negligence regarding a slip and fall in a shower in the A Block at Wende Correctional Facility (Wende) on April 1, 2002, specifically rejecting all other proposed causes of action (Forshey v State of New York, UID #2003-031-006, M-65868, Feb. 18, 2003).[1] The claim alleges the Defendant’s failure to properly maintain the shower area, no proper drainage, no proper slip-free floor mats and asserts the Defendant’s prior actual knowledge of such dangerous conditions which allegedly existed for approximately three years. He contends that he hurt his arm and back in this slip and fall and seeks compensatory damages of $250,000.00 for pain and suffering, $150,000.00 for mental anguish, and for copying fees, for a total of $400,000.00.

Lest there be any question, as has been reiterated in various motion decisions and orders herein, to the extent that the claim makes allegations of inadequate medical care and attention and civil rights violations, such relief was not permitted in the late claim decision; in a decision in Motion Nos. M-66913, M-66926; M-67395 and CM-67077, filed on December 5, 2003; or in a decision in Motion No. M-68153, filed on May 12, 2004, where Claimant sought renewal and reconsideration and I adhered to my original decision, including dismissal of all other causes of action, but deemed the claim, to the extent it alleged negligence for the slip and fall, to have been properly served. There was full compliance with my decision and order in Motion No. M-75196, dated August 3, 2008, regarding the production of documents and witnesses for the trial.

At trial, Claimant testified as to the events on the day when he fell. He had been housed at A Block at Wende for some two years prior to the incident in question. He returned to his cell (No. 7) from the mess hall at about 1:30 p.m. to 1:45 p.m. as he normally did. The shower stall area contained three separate showers, and, to the best of Claimant’s recollection, he utilized the shower on the left. No one else was using the other showers, and thus Claimant was essentially alone in this area. He turned all three showers on to let them run, because he said that it took five minutes or so for the proper temperature to be achieved. He left them running and went to his cell to collect his shower paraphernalia. He returned to the shower area and “didn’t pay no attention to it,”[2] took his shower, and, as he got out of the shower, the shower area was “flooded.” Claimant noted that a mop and bucket were readily available in the shower area and he proceeded to utilize the mop to clean up the water inside the shower area. As the floor was now drying, he went to step out of the shower area and he slipped when his feet came out from under him and he fell. He tried to catch himself on a gate, but it was too late.

Claimant described three separate showers, with a wall separating the individual shower stalls, each with a drain and a lip about three or four inches tall at the outer edge of the stalls, and a shower curtain for each shower. Claimant also described an area in front of the shower, and at trial was unable to recall whether there was any standing water there when he first arrived at the shower area on April 1, 2002. His recollection was refreshed when he reviewed his 2005 EBT testimony where he recalled testifying on two occasions that there was no water on the floor when he first arrived. Claimant acknowledged having turned all three showers on for 10 to 15 minutes and having left the area. When he returned, he took a 30-minute shower and, to his knowledge, all three showers remained running for the entire 40- to 45-minute period. He acknowledged that there was a mop and bucket in this area for inmates to use to mop the area. He said that he fell in the area beyond the lip and shower curtain, to wit, outside the shower, after having stepped out of his shower stall. On cross-examination, Claimant admitted that he had taken at least some 1,000 showers there during his incarceration.

Correction Sergeant Joseph Schultz, who was supervising the shower area, allegedly then asked Claimant if he was all right. Sgt. Schultz is alleged to have been sitting in a chair in the front of the company, some 15 to 20 feet from the shower area. Claimant acknowledged that he initially told Sgt. Schultz that he was okay and uninjured, and he returned to his cell. After a shift change for correction personnel, Correction Officer (CO) Philip Hall was then assigned to the company, and during his rounds, Claimant’s elbow had allegedly started to bleed and become swollen, and Claimant allegedly so informed CO Hall. Claimant was then escorted to the facility infirmary, where the nurse allegedly provided ice for the swelling and bandages for the cut area near the elbow, and ordered x-rays for Claimant’s back which he had complained about to the nurse. He returned to his cell after this initial medical examination. He also testified that he sustained no injury to his elbow, just some swelling, and he could not use it for a day or so, but nothing that lasted beyond a couple of days.

It is at this point of the proceedings that Claimant’s testimony drifted from the pleadings and found little support in the documentary evidence . The claim focuses quite specifically on the events of “on or about April 1, 2002," and the permission to file a claim limited allegations to the Defendant’s purported negligence on April 1, 2002. During the presentation of his proof at trial, Claimant referenced an earlier slip and fall on March 14, 2002, where the inmate injury report discusses a small laceration on the right arm near the elbow and back pain and stiffness (Exhibit 7). Then Claimant expressed confusion as to which incident he was injured in. He testified that both the Inmate Injury Report reflecting a slip and fall on March 14, 2002, with Claimant’s signature affixed thereon (Exhibit 7), and his Inmate Grievance Complaint dated March 14, 2002 with his signature affixed thereto in two separate locations (Exhibit 8), contain the wrong dates and relate to the incident of April 1, 2002.

He also testified that entries in his ambulatory health record for March 19, March 21 and March 25, 2002, all relating to and addressing the incident of March 14, 2002, are all wrong (Exhibit A - p. 0034). His testimony in this regard is simply not credible, and is further diminished by the chronological ambulatory health record which reflects a complaint of an elbow and lower back injury from a fall in the shower room in A Block on March 14, 2002 (Exhibit A - p. 0036). Frankly, Claimant’s veracity is highly questionable, given numerous documents in evidence that contradict his testimony about March 14, 2002, and thoroughly undercut the credibility of all of his testimony. Claimant did not dispute or challenge the authenticity of his signatures on written and dated records in evidence (Exhibits 7 and 8).

Of course, given the application and granting of permission to file the instant claim, with allegations of negligence strictly limited to the events on or about [3] April 1, 2002, the diminished credibility of Claimant’s testimony significantly impairs any correlation of proximate cause for injuries to his elbow and back purportedly sustained on April 1, as Claimant was treated for identical complaints two weeks earlier.

Moreover, in testifying on cross-examination regarding his own medical records and medical history (Exhibit A), including his ambulatory health record, Claimant acknowledged that:
1. On April 9, 2001 (Exhibit A - p. 0047), he complained of pain and swelling in his back;

2. On April 12, 2001 (p. 0046), he complained of pain in his lower back and a notation that there was a history of lower back problems;

3. On April 16, 2001, an x-ray report revealed, inter alia, curvature of the spine ... with spina bifida of the sacrum noted (p. 0075);

4. On April 20, 2001, there were complaints of lower back pain and on May 14, 2001, he complained of back pain and left foot problems (p. 0045);

5. On June 25, 2001, Claimant requested sick call for back pain (p. 0043);

6. On July 3, 2001, he complained of back pain that was not relieved by medications including flexeril (p. 0042) and testified that he had had physical therapy after an MRI of his back prior to July of 2001;

7. A consultant’s report dated July 2001 recited that Claimant had reported lower back pain for one half of his life (p. 0158);

8. On August 1, 2001, complaints of back pain (p. 0041);

9. On August 13, 2001, a consultant physical therapist’s report noted reports of continuing pain in his spine and back spasms (p. 0157);

10. On November 13, 2001, he complained of left foot pain and back pain (p. 0037);

  1. On November 20, 2001, he complained of lower back pain (p. 0037); and

12. On January 10, 2002, he complained of chronic lower back pain (p. 0036).

This more than amply demonstrates a long, extensive medical history, all preceding the alleged slip and fall of April 1, 2002, of the very type of lower back pain which Claimant would have the Court believe was proximately caused by the purported negligence on April 1, 2002. Moreover, Claimant’s complaints of back pain related to the alleged slip and fall in question is compromised by his continuation of regular and lengthy typing of documents for himself and other inmates in his cell, and his refusal to modify such exacerbating behavior despite direct and specific advice from his physical therapist at least on October 17, 2003 (Exhibit A - p. 0488); on November 3, 2003 (Exhibit A - p. 0485); on November 10, 2003 (Exhibit A - p. 0483); on November 14, 2003 (Exhibit A - p. 0482), and on November 21, 2003 (Exhibit A - p. 0481). In other words, Claimant’s typing activities either created, exacerbated or worsened his back problems and he acknowledges a refusal to “alter his activity level.”

Dr. Jacqueline Levitt, a physician employed at Wende Correctional Facility who has treated Claimant, testified after reviewing all of Claimant’s medical records (Exhibit A). She noted complaints of back pain on March 19, 21, and 25, 2002, as well as a reference to the slip and fall on March 14, 2002. The ambulatory health record had a gap between March 25, 2002, and the next entry of April 16, 2002, placing any allegations of injuries incurred on the date specified in the claim of April 1, 2002, as being unreliable. Dr. Levitt also testified as to her direct recommendation against typing for extended periods of time, which Claimant apparently had done for up to 18 hours a day, as it was bad for his back. She also noted, quite tellingly, that the medical records show no record of a slip and fall or any injury sustained on April 1, 2002 by Claimant.

Given this history, Claimant is not competent or qualified to provide evidence to establish an exacerbation of pre-existing back injuries and pain relating to the alleged slip and fall of April 1, 2002, without the testimony of a medical expert. He offered no such evidence. Frankly, given his long history of back pain complaints, it is hard to discern any compensible injuries proximately caused by the alleged events of April 1, 2002.

Sgt. Schultz, who was assigned to A block for a period of some ten years, testified that there was a time limitation for inmate showers of approximately 10 minutes, in contrast to the 30 minute shower described by Claimant. With respect to the length of the shower curtains, Sgt. Schultz testified that they were cut high enough so that correction officers could see an inmate’s feet. Indeed the guidelines for individual shower stalls address translucent shower curtains of sufficient length to cover the bodies of inmates, and the bottoms of which shall be “no less than 12 inches from the floor” (Exhibit C). He could not recollect whether there was a drain on the floor of the area outside the shower stalls but did testify that, despite the gap between the shower curtains and the lip of the stall, he did not recall any accumulation of water in the area outside the shower. This answer seems more than implausible given the setup of the shower area and testimony that this is the area where inmates exited the shower and dried off, inevitably leaving some water on the floor. A mop and bucket were placed in that area, so that an inmate could use it to mop up any accumulation of water.

Correction Officer Philip Hall, who worked in A Block for some 9 years, testified that there was no drain in the area outside the shower stalls, and reiterated that the length of the shower curtains allowed inmates’ feet to be seen. He testified that there would be water on the floor of the shower itself during shower time, but proper use of the curtains would contain it, and that inmates would mop up the excess water. He also testified that given the three solid walls of each shower stall, and one wall with a curtain, that if the curtain was properly used, there would be no “flooding” (a term used by Claimant, but specified by Officer Hall to be an accumulation of water, but not a torrent) of what was described as perhaps a five-foot area outside the shower past the lip to a cell door which could be closed in the event of a security problem. Inmates had shower slippers or flip-flops. He also testified that to his knowledge and experience of some nine years there is no history of any inmate other than Claimant slipping and falling in the shower area in A Block at Wende.

Correction Lt. Kenneth Zydel testified similarly. He had been assigned to A Block as an area sergeant for some six to seven years, and was not aware of any inmate injured in a slip and fall due to the accumulation of water in the A Block showers prior to April 1, 2002.

The Fire and Safety Officer at Wende, Correction Officer James Brauer, examined the records at Wende for any recorded slips and falls in A Block in calendar year 2002, and Claimant’s incident(s) of March 14 and/or April 1, 2002 was the only one.[4]

In essence, Claimant has not been able to show, and there is no evidence to support, any actual or constructive notice of a dangerous condition in the A Block shower area, and indeed not one witness testified and no document was presented in evidence of any slip and fall in that shower area prior to April 1, 2002, with the sole exception of a March 14, 2002 incident which Claimant has denied took place.

In sum, Claimant has failed to establish that there was a slip and fall on April 1, 2002, as there are no injury reports or medical records to support such allegation, despite the permission to file a late claim and a filed claim which specified that date. Even if the earlier incident of March 14, 2002, which medical and other records in evidence confirm, yet which Claimant equivocally denies, forms the basis of his allegations of having sustained an injury, there is no evidence of negligence by the Defendant. Claimant referenced several grievances he filed, contending that there should be shower mats and a new drain in the shower area (Exhibit 4), and argued that the paint was not the nonslip quality he would have preferred, but failed to show any duty or the breach thereof in not providing the mats, or any proof that the paint itself was defective and/or not nonslip, or that a dangerous condition was created.

Allegations relating to slips and falls in the shower areas of correctional facilities are not uncommon. The wearing of shower shoes, the inherent existence of water in shower areas, the availability of a mop and bucket to squeegee excess water, the absence of proof that there was an excessive amount of water in the shower area on either of the contested dates herein, the absence of proof that the existing drains were not properly working, Claimant’s experience of over 1,000 showers in this precise shower area, etc., all militate against any finding that there was “an unreasonably dangerous condition above and beyond that typically encountered in such area” (Jackson v State of New York, 51 AD3d 1251, 1253).

Accordingly, the claim must be and hereby is dismissed. All motions not heretofore ruled upon are denied.


December 17, 2008
Rochester, New York

Judge of the Court of Claims

  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at
  2. [2] Quotations of testimony come from the Court’s trial notes and/or a review of the digital audio recording of the trial, unless otherwise noted.
  3. [3]I have previously addressed “on or about” as meaning a period of at least one day (DeGregorio v State of New York, 13 Misc 3d 1090). It does not extend as far as two weeks.
  1. [4]He did note one other reported slip and fall on February 4, 2002, albeit in F Block.