PORTER v. THE STATE OF NEW YORK, #2008-015-501, Claim No. 112727
Following a bifurcated trial on liability, Court held that inmate established
the defendant's negligence in causing a wet and slippery condition on an indoor
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Greenberg and GreenbergBy: Mark Greenberg, Esquire
Honorable Andrew M. Cuomo, Attorney General
Kevan Acton, EsquireAssistant Attorney General
March 24, 2008
See also (multicaptioned
Claimant seeks to recover damages for injuries sustained in a slip and fall
accident on an indoor basketball court at Hudson Correctional Facility (Hudson
CF). Trial of this matter was bifurcated and the liability phase was held on
December 5, 2007.
The claimant testified that he was first transferred to Hudson CF in February,
2005. On November 7, 2005 the team of which he was a member was scheduled to
play basketball at the Hudson CF gymnasium. Claimant arrived at the gym at
approximately 6:30 p.m. and changed from his prison clothing into sneakers and
shorts. The claimant stretched for less than five minutes when he and his
teammates were provided a basketball and instructed by facility staff member
Mark Konsul to begin their pre-game warmups. The team divided itself into a
shooting line and a rebounding/passing line and began lay-up drills. Claimant
was the second person in the line of players who executed the lay-ups. The
first individual in claimant's line completed his lay-up without incident.
Claimant testified that as he received the ball and began his lay-up he slipped
on "something wet", fell to the ground and was injured. He testified that he
did not jump or leave the floor but slipped on a wet substance and fell
backward. He described the experience as "similar to slipping on ice." As he
lay on his back following the fall, claimant looked to his left and saw a "skid
mark where like my foot had, you could see where I slid it through
On cross-examination the claimant testified that he has played basketball since
he was a teenager and that he weighed approximately 250 to 260 pounds at the
time of the alleged incident. He had played basketball at the Hudson CF gym
only twice prior to November 7, 2005.
He also testified on cross-examination, as he did on direct, that he arrived at
the gym at approximately 6:30 p.m. and immediately changed into his basketball
clothes and sneakers. He did not see James Blount or any other Recreation Aide
working at the gymnasium. He testified that he knew Mr. Blount and had seen him
working at the gymnasium prior to November 7, 2005. His team split into two
groups to perform a lay-up drill prior to the start of the game. Claimant was
the second person in line. The first individual received a pass and completed a
lay-up without slipping. The ball was rebounded and passed to the claimant who
jogged toward the basket to attempt a lay-up. He slipped and fell backward
experiencing pain in his left knee. Claimant did not observe any wet spots on
the gymnasium floor prior to his participation in the lay-up drill.
The claimant was still lying on the gymnasium floor when Mark Konsul arrived at
the scene in possession of an Inmate Injury Report which he requested the
claimant sign (Exhibit 1). While still lying on the gym floor, claimant reviewed
the proposed report and indicated concern that the portion completed by Mr.
Konsul did not accurately portray the happening of the accident. Claimant then
added "[i]nmate attempt to go for lay-up and slipped on the floor and knee
popped" in that portion of the report titled "Inmate's statement."
Claimant agreed that he did not identify the cause of his slip and fall and did
not specifically mention a wet area or skid mark in the statement he added to
the injury report.
Claimant was ultimately taken to the hospital where he was treated surgically.
Sometime following his return to Hudson CF the claimant typed a statement given
to him by James Blount concerning the incident (Defendant's Exhibit C). The
statement was then signed by Mr. Blount and several other inmates.
On redirect-examination the claimant testified that no other individuals were
playing basketball in the gym prior to the incident which, he testified,
occurred at 6:40 p.m.
The claimant presented the examination before trial testimony (EBT) of James
Blount (Exhibit 6). In his EBT Mr. Blount testified that he was working as a
Recreation Aide at the Hudson CF gymnasium on November 7, 2005. As part of his
duties Mr. Blount and another inmate were responsible for mopping the gymnasium
floor. He testified that on the date the claimant was injured he and a second
Recreation Aide, who he was unable to identify, were instructed by "Jay Benton,
to mop the gym floor using a wet mop and
clean water. After he completed mopping the floor as he had been instructed
the witness went to mop the floor of the phone booth and office area within the
building. After completing his tasks, Mr. Blount exited the office and observed
Mr. Porter as he was attempting a lay-up. According to Mr. Blount "[h]e fell
straight down like on his back when he went down" (Exhibit 6, p. 13). He
testified that at some point between the time he began mopping the gymnasium and
his observation of Mr. Porter's incident, a shift change occurred and Mark
Konsul replaced Jay Benton, Jr. as the Recreation Supervisor on duty. Mr.
Blount stated that the gymnasium was equipped with a Wet Floor sign that "we
usually put up but at [sic
] that day there wasn't nothing put up"
(Exhibit 6, p. 14).
Finally, the witness testified that he observed that the gymnasium floor was "a
little damp" (Exhibit 6, p. 20) as he and other inmates went to provide Mr.
Porter assistance. When asked why he believed the floor was still damp Mr.
Blount replied "[i]t wasn't dried completely. It was still damp."
On cross-examination the witness testified that he was first transferred to
Hudson CF in 2001. He described his contact with the claimant prior to
November, 2005 as "[j]ust probably seen each other going to the messhall and
that was that" (Exhibit 6, p. 23). Mr. Blount confirmed his testimony on
direct examination that he and another Recreation Aide were instructed to mop
the gymnasium floor by Jay Benton, Jr. He and the other inmate mopped the floor
as instructed with clean water, a process which he estimated was performed three
times per week. The witness testified that it took approximately one-half hour
to wet-mop the entire gymnasium floor. He also testified that the gymnasium
floor would periodically be mopped using a dust mop and floor treatment.
Mr. Blount stated that he observed that the floor was wet after the wet mopping
had been completed. He did not, however, inform the Recreation Supervisor of
that fact. He estimated that the teams which were waiting to play began their
warmup drills approximately five minutes following completion of the floor
mopping. No "Wet Floor" or other warning signs were posted.
Mr. Blount testified that he had worked as a Recreation Aide at the Hudson CF
gymnasium for approximately three to four years prior to November 7, 2005.
According to the witness, wet-mopping of the gymnasium floor was first begun "a
couple of weeks" (Exhibit 6, p. 45) prior to the date of claimant's accident.
The witness testified that the document admitted as defendant's Exhibit C, a
statement signed by Mr. Blount and other inmates concerning the incident, was
prepared and typed by the claimant. The document was presented to the witness
who reviewed it and applied his signature. Finally, the witness testified that
he did not observe any water on the floor near the claimant when he went onto
the court to render him assistance.
The claimant rested his case upon the Court's receipt in evidence of Exhibit 7,
a transcript of the examination before trial of Mark Konsul.
The defendant called Geoffrey Benton as its first witness. Mr. Benton
testified that he is currently employed by the Department of Correctional
Services as a Recreation Program Leader I (RPL I) at Hudson CF. He testified
that he was first employed at Hudson CF on a temporary basis during the summer
of 2005. Although his temporary summer employment at Hudson CF ended on Labor
Day 2005, he was rehired on a permanent basis as a RPL I beginning on November
28, 2005. Mr. Benton testified that he was not employed as a RPL I at Hudson CF
on November 7, 2005. Nor did he either speak to James Blount or instruct Mr.
Blount to wet-mop the floor of the gymnasium on that date.
Mr. Benton testified that a protective mat was placed over the gymnasium floor
during both the morning and afternoon recreation blocks in accord with standard
procedures at the Hudson CF gymnasium. The mat is swept at least once each
block and wet-mopped if required. The mat is then removed from the gym floor
for evening programs, including basketball games. According to the witness, the
Hudson CF gym floor was never mopped with water "that I know of."
On cross-examination Mr. Benton testified that his father James Benton was
employed at Hudson CF in November, 2005.
The defendant called Mark Konsul. Mr. Konsul testified that he is currently
employed as a Recreation Program Leader I at Hudson CF and was acting as a
Recreation Coordinator for the evening programs at Hudson CF on November 7,
Mr. Konsul testified that the gym floor is often covered by a protective mat,
which he acknowledged is sometimes wet-mopped. The cover was removed from the
the gymnasium floor prior to the start of the evening programs at Hudson CF on
November 7, 2005. The witness recalled that James Blount was present at the
gymnasium on that date but denied that he had instructed Mr. Blount to wet-mop
the gymnasium floor. Instead, Mr. Konsul testified that the gymnasium floor was
dust-mopped using a solution designed to prevent slipping. The floor would
first be dust-mopped using a dry mop. A second mop would then be sprayed with a
cleaning solution and the floor would be mopped a second time. The witness
testified that he observed Blount follow the above procedure in mopping the
floor on November 7, 2005. Mr. Konsul testified that once the mopping was
completed he inspected the floor for slippery areas. He estimated that the
cleaning solution applied during the second mopping of the gymnasium floor dries
approximately 5 to 10 minutes following application.
Mr. Konsul testified that he did not witness the claimant's fall. Rather, he
heard a loud crash and exited his office at which time he observed the claimant
lying on the gymnasium floor. He acknowledged that he prepared an Inmate Injury
Report regarding the incident (Exhibit 1), which includes a statement that was
added to the report by the claimant. According to Mr. Konsul the claimant never
stated that he slipped on a wet substance and the witness did not observe any
such substance on the gymnasium floor. He acknowledged, however, that his
first priority was to assist the claimant and that he did not examine the floor
immediately. The gym floor was not cleaned following claimant's removal from
the gymnasium and the scheduled basketball games were played without incident or
On cross-examination the witness acknowledged that his testimony at an
examination before trial, in which he stated that the inmate Recreation Aides,
including Mr. Blount, began dry-mopping the gymnasium floor at 7:40 p.m. and
completed their task at 7:55 p.m. in preparation for an 8:00 p.m. inmate
basketball game, was incorrect. Upon being shown the time of injury stated on
the Inmate Injury Report prepared following the incident he changed his
testimony at the examination before trial, stating the following at pages 23 -
24 (Exhibit 7):
"Q. Do you want to change your statement as to when Mr. Blount finished
mopping the floor on November 7th, 2005?
A. Well, now I'm going to have to, yeah because I thought it was at 8 o'clock,
Q. Okay. Well, do you have a [belief] now as to when Mr. Blount finished
mopping the floor?
A. Yes. Well, he came down at 6:25 because that's when he reported to me for
6:30. My inmates report at 6:30.
Q. Yeah. My question to you is do you have a different statement to make
A. Yes, I do because the time is different.
Q. When did Mr. Blount finish mopping the floor on November 7th, 2005 on your
A. Well, he came down 6:25 so he had to be done by 6:35."
Finally, Mr. Konsul testified that the treatment used in dust-mopping the
gymnasium floor is slippery until it evaporates and acknowledged that he
testified at his examination before trial that the treatment solution takes
"[a]nywhere from 10 to 15 minutes" to dry (Exhibit 7, p. 18). According to
the witness he never permitted a wet mop to be used on the gymnasium floor
although James Benton would sometimes allow the floor to be wet-mopped during
the morning recreation period. At his deposition, however, Mr. Konsul testified
that the floor was wet-mopped twice daily, in the morning and afternoon, a
practice with which he disagreed.
On redirect-examination Mr. Konsul testified that he had no knowledge as to
whether the gym floor had been wet-mopped during either the morning or afternoon
recreation periods on November 7, 2005.
Like any other landowner the State has a duty to maintain its premises in a
reasonably safe condition under the circumstances (Colangione v State of New
York, 187 AD2d 844 ; Rosado v State of New York, 139 AD2d 851
; see also Basso v Miller 40 NY2d 233, 241 ). This
duty obligates the State to “take every reasonable precaution to protect
those who are in its institutions,” including prison inmates (Bowers v
State of New York, 241 AD2d 760, 760 ; see also Heliodore v
State of New York, 305 AD2d 708 ; Melendez v State of New York,
283 AD2d 729 ; appeal dismissed 97 NY2d 649 ; Condon v
State of New York, 193 AD2d 874 ; Rosado v State of New York,
supra). The State is not an insurer against any injury which might
occur on its premises, however, and negligence will not be inferred from the
mere happening of an accident (Melendez v State of New York, 283 AD2d at
729; Bowers v State of New York, 241 AD2d at 760). In order to
establish liability in a slip and fall case the claimant must “
‘show that the defendant . . . had either created a dangerous condition
or . . . had actual or constructive notice of the condition’ ”
(Heliodore v State of New York, 305 AD2d at 709 [citation
omitted]; see also Mercer v City of New York, 88 NY2d 955
; Seaman v State of New York, 45 AD3d 1126 ; Kappes v
Cohoes Bowling Arena, 2 AD3d 1034 ). Here, claimant established by a
preponderance of the credible evidence that the defendant created a wet and
slippery condition which caused his fall.
It is undisputed that the floor was mopped shortly before the accident
occurred. However, the defendant argues based upon the testimony of Mr. Konsul
that the floor was only dry-mopped. Defendant attempts to discredit the
contrary testimony of Mr. Blount by reference to his status as a felon and the
fact that the individual who he testified instructed him to wet-mop the floor,
Mr. Benton, was not employed by the defendant on the date the accident occurred.
Although Geoffrey Benton testified that he was not employed at Hudson CF between
Labor Day 2005 and November 28, 2005, he did acknowledge on cross-examination
that his father, James Benton, was employed as a Recreation Program Leader II on
November 7, 2005 (Exhibit 7, pp. 7, 10). Mr. Konsul also testified at an
examination before trial that James Benton directed that the gymnasium floor be
wet-mopped twice daily, in the morning and the afternoon, a practice with which
he disagreed and did not follow in the evenings (Exhibit 7, pp. 10, 48, 52).
In this regard, however, Mr. Blount clearly testified that it was James
Benton's son, "Jay Benton, Jr.," who instructed him to wet-mop the gymnasium
floor on the evening of November 7, 2005:
(Exhibit 6, p. 9)
"Q. Who was the civilian that told you to mop the gymnasium floor on November
A. I think his name was Jay Benton if I'm not mistaken."
(Exhibit 6, p. 11)
"Q. Now, who was it that told you to use water to mop the gymnasium
A. Jay Benton, Jr. It was his son. Because the three of them, his father
works there, the son and Mark Konsul works there. There's three civilians that
work the gym."
The son, however, is Geoffrey Benton, who testified that he was not employed at
Hudson CF on the date this incident occurred. This inconsistency in the
testimony of Mr. Blount and Geoffrey Benton, together with the other
inconsistencies in Mr. Blount's testimony, render his testimony less than
The claimant testified that he had played basketball on the Hudson CF gymnasium
floor on two occasions prior to November 7, 2005. He arrived at the gym at
approximately 6:30 p.m. that evening and changed into his shorts and sneakers.
He did not observe any Recreation Aides performing maintenance tasks and took to
the floor with his teammates when instructed to do so by Mark Konsul. He
attempted to complete a lay-up and allegedly slipped on a wet substance causing
him to fall to the floor sustaining injury. Claimant testified that as he lay
on the floor he observed a skid mark on the floor "where like my foot had, you
could see where I slid it through something". Mr. Konsul testified that inmate
Blount arrived at the gym at approximately 6:25 p.m. on November 7, 2005. He
testified that he observed Mr. Blount first mop the floor with a dry mop and
then again with a mop treated with a floor cleaning solution. Konsul stated
that the floor mopping process was completed at approximately 6:35 p.m. The
time of injury stated on the Inmate Injury Report completed by Mr. Konsul is
6:40 p.m. Importantly, Mr. Konsul testified that the floor cleaning solution
applied to the gym floor at Hudson CF is slippery when first applied. While he
testified on direct examination that the cleaning solution takes between 5 and
10 minutes to fully dry, he testified at his examination before trial and on
cross-examination that the actual drying time was between 10 - 15 minutes.
The timeline testified to by Mr. Konsul, beginning with the arrival of James
Blount at 6:25 p.m. and ending with the completion of mopping at 6:35 p.m.
together with the 6:40 p.m. time of injury contained in the Inmate Injury Report
and his testimony that the cleaning solution took 10 - 15 minutes to dry, and
claimant's testimony that he observed a skid mark on the floor where he fell,
leads the Court to conclude that the claimant established by a preponderance of
the credible evidence that the floor cleaning solution applied to the Hudson CF
gymnasium floor, beginning fifteen minutes and ending a mere five minutes prior
to the stated time of the injury, had not fully dried when the claimant and his
team were instructed to begin warmups and given a basketball for that purpose by
Mark Konsul. Thus, even if the Court were to disregard the testimony of Mr.
Blount in favor of the testimony of Mr. Konsul the floor was nonetheless wet and
slippery when the accident occurred. Although Mr. Konsul testified that he
inspected the floor before the warmups began, he admittedly only inspected the
middle of the floor, which was not where the accident occurred (Exhibit 7, p.
Even if the solution took only 5 - 10 minutes to dry as Mr. Konsul testified on
direct examination, the circumstances, in full, establish that application of
the cleaning solution created a dangerous condition which had not abated at the
time the players took to the floor. That claimant did not specifically note
that he slipped on a wet substance in his statement entered on the Inmate Injury
Report, accomplished while lying on the gym floor following the incident, is not
determinative. The statement indicates that claimant "slipped on the floor" and
his testimony at trial confirmed that he slipped on a wet substance.
The preponderance of the credible evidence indicates to the Court that the
defendant created a dangerous condition which was the proximate cause of
This determination renders the defendant’s argument that the doctrine of
primary assumption of risk is a bar to recovery meritless. By voluntarily
participating in a sport, “a participant consents to those commonly
appreciated risks which are inherent in and arise out of the nature of the sport
generally and flow from such participation” (Morgan v State of New
York, 90 NY2d 471, 484 ; see also Turcotte v Fell, 68
NY2d 432 ; Maddox v City of New York, 66 NY2d 270, 277 ). A
defendant’s duty with regard to sporting activities is to exercise that
degree of care to “make the conditions as safe as they appear to be”
(Morgan, 90 NY2d at 484; Turcotte, 68 NY2d at 439). Thus, the
risks assumed by the participant include those which commonly inhere in the
sport, including any open and obvious condition involved in the playing surface
(see e.g., Trevett v City of Little Falls, 6 NY3d 884 ;
Sykes v County of Erie, 94 NY2d 912 ; Joseph v New York Racing
Assn., 28 AD3d 105 ; Ciocchi v Mercy Coll., 289 AD2d 362
; Colucci v Nansen Park, 226 AD2d 336 ). The awareness of
risk is not to be determined in a vacuum, but rather, “is to be assessed
against the background of the skill and experience of the particular
plaintiff”(Morgan, 90 NY2d at 484).
A wet floor on an indoor basketball court is not a risk inherent in the sport
nor was there any evidence presented at trial that the condition was obvious
(cf., Dong v Cazenovia Coll., 263 AD2d 606 ; Allwood v CW
Post Coll., 190 AD2d 704 ). As no degree of skill and experience
would have alerted the claimant to the presence of a wet substance on the indoor
court, the doctrine of primary assumption of risk is inapplicable. Unlike the
circumstances in Sykes v County of Erie, supra, where the risk of
stepping into a recessed drain near the free throw line of an outdoor basketball
court was open and obvious, here the foreign substance upon which the claimant
slipped and fell on the indoor court was latent and not readily discernable.
Based on the foregoing, the Court finds that the claimant established by a
preponderance of the credible evidence that the defendant is 100% responsible
for the claimant’s fall and ensuing damages.
All motions not previously decided are hereby denied.
Let interlocutory judgment be entered accordingly.
March 24, 2008
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.Individual's name as set forth in the EBT