New York State Court of Claims

New York State Court of Claims

PORTER v. THE STATE OF NEW YORK, #2008-015-501, Claim No. 112727


Synopsis


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 basketball court.

Case Information

UID:
2008-015-501
Claimant(s):
BARRY PORTER
Claimant short name:
PORTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112727
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Greenberg and GreenbergBy: Mark Greenberg, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kevan Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 something."

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, Jr."[1] 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, 2005.

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 further injury.

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, the game.

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 now?

A. Yes, I do because the time is different.

Q. When did Mr. Blount finish mopping the floor on November 7th, 2005 on your shift?

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 [1992]; Rosado v State of New York, 139 AD2d 851 [1988]; see also Basso v Miller 40 NY2d 233, 241 [1976]). 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 [1997]; see also Heliodore v State of New York, 305 AD2d 708 [2003]; Melendez v State of New York, 283 AD2d 729 [2001]; appeal dismissed 97 NY2d 649 [2001]; Condon v State of New York, 193 AD2d 874 [1993]; 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 [1996]; Seaman v State of New York, 45 AD3d 1126 [2007]; Kappes v Cohoes Bowling Arena, 2 AD3d 1034 [2003]). 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 7, 2005?

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 floor?

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 persuasive.

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. 35).

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 claimant's injuries.

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 [1997]; see also Turcotte v Fell, 68 NY2d 432 [1986]; Maddox v City of New York, 66 NY2d 270, 277 [1985]). 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 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Joseph v New York Racing Assn., 28 AD3d 105 [2006]; Ciocchi v Mercy Coll., 289 AD2d 362 [2001]; Colucci v Nansen Park, 226 AD2d 336 [1996]). 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 [1999]; Allwood v CW Post Coll., 190 AD2d 704 [1993]). 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
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1].Individual's name as set forth in the EBT transcript.