GERMAINE v. THE STATE OF NEW YORK, #2008-015-505, Claim No. 112193
Following a bifurcated trial on the issue of liability, Court found claimant
established that defendant caused the wet condition which caused his slip-
and-fall accident in the messhall and defendant failed to provide warning of the
danger. State was found 100% at fault.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Mallilo & Grossman
By: John S. Manessis, Esquire and Beth Girsch, Esquire
Honorable Andrew M. Cuomo, Attorney General
Michael T. Krenrich,
EsquireAssistant Attorney General
June 30, 2008
See also (multicaptioned
Claimant, an inmate, seeks to recover damages for injuries sustained in a
slip and fall accident on the floor of the mess hall at Clinton Correctional
Facility (CCF). Trial of this matter was bifurcated and the liability phase was
held on April 25, 2008.
Thomas Germaine testified that he began working in the CCF mess hall as a food
server in January, 2002. He stated that the mess hall was divided into six
sections and that food service personnel were required to clean the section to
which they were assigned after each meal. Cleaning duties included washing
counter and table surfaces as well as sweeping and mopping floors with equipment
stored next to the mess hall in an area referred to as a slop sink room. Wet
floor signs would be posted once the floors were mopped and would remain in
place until the floors were fully dried. After one year working in the food
service line the claimant worked in the food preparation room for two years. In
approximately February, 2005 Mr. Germaine was assigned to work as a "toast man"
making toast for the approximately 1200 inmates who use the mess hall during
each meal. He was not required to participate in cleanup of the mess hall
following meals and generally worked a twelve-hour shift from 6:00 a.m. to 6:00
p.m. He would occasionally be released early to return to his cell.
The claimant testified that breakfast was served between 7:00 a.m. and 8:30
a.m. Following breakfast on the morning of August 30, 2005, he went to
Correction Officer (CO) Ludwig's office adjacent to the mess hall and inquired
as to whether he would be needed for the rest of the day. CO Ludwig informed
the claimant he would not be needed and that he could return to his cell.
Claimant left the office and entered the west mess hall. He walked across the
floor passing through the first two sections of the mess hall without incident
when, as recounted by the claimant, "my left leg just went out from under me".
The claimant slipped and fell, trapping his left leg underneath his body.
Inmate Thomas Hoyer, who had accompanied the claimant to CO Ludwig's office, was
behind the food counter at the time of claimant's fall. Inmate Hoyer went to
the claimant's location where claimant informed him that he may have broken his
ankle. As Hoyer went to secure assistance, the claimant, who was lying on the
floor, observed what he described as "squiggly" wet marks on the floor left by a
mop. He testified that there were no wet floor signs, caution tape or orange
cones designating a wet floor in the area where he slipped and fell. He
estimated that the accident occurred between approximately 9:15 a.m. and 9:30
Claimant was removed from the mess hall and taken to receive medical treatment.
Once at the infirmary an Inmate Injury Report was prepared by an individual
employed by the defendant and signed by the claimant (Exhibit 1). The statement
contained on the report is as follows:
"I slipped on wet floor. Lt foot grabbed as fell. Heard crack Lt
Mr. Germaine denied that he spoke to CO Ludwig or any other individual while in
the mess hall prior to being taken to receive treatment.
On cross-examination the claimant testified that he began working in the CCF
mess hall in 2002 and that he worked 12 hour shifts, five days per week. The
mess hall floor was mopped after each meal and inmates overseen by correction
officers would put out yellow wet floor signs and wait for the floor to dry.
Once the floor was completely dry the floor signs would be put away in the slop
After speaking to CO Ludwig and being released for the remainder of the day the
claimant walked through two sections of the mess hall without observing water on
the floor. He did not observe any water or other substance on the floor prior
to falling within the mess hall's third section. After claimant fell Inmate
Hoyer came to provide him assistance and then left to notify CO Ludwig of the
incident. CO Ludwig and other COs came to the claimant's location on the mess
hall floor, the claimant was placed on a stretcher and then taken to the
infirmary on a gurney.
On redirect examination Mr. Germaine testified that CO Ludwig had been the
officer in general charge of the mess hall since the time he began working there
in 2002. He estimated that the slop sink room where the mop, broom and other
equipment were stored was located approximately five to ten feet from the CCF
west mess hall.
The claimant rested his case at the conclusion of the claimant's
The defendant called Jeffery Ludwig who testified that he has been employed by
the Department of Correctional Services for twenty-one years, twenty of which
have been spent at Clinton Correctional Facility. Mr. Ludwig was promoted to
the rank of Sergeant in June, 2007
CO Ludwig testified that he became the officer in charge of the main mess hall
at CCF in January, 1991. In that position his duties included assigning inmates
to their jobs and overseeing and evaluating their work, including cleaning of
the mess hall. He explained that "line servers" were responsible for cleaning
the mess hall floor following each of the three meals served each day. In
August, 2005 there were eight line servers working in the west mess hall, each
assigned to one section which they were responsible for cleaning. Following
each meal the floors would be swept and mopped and wet floor signs would be
posted. The signs were taken down once the floors were completely dry. The
floor of the mess hall was composed of red six-inch by six-inch tiles which he
contended became darker and more shiny when wet, a change in appearance he
described as a "discernable difference".
In describing the events of August 30, 2005 the witness testified that he
learned the claimant had fallen and was injured when inmate Thomas Hoyer came to
his office following the incident. CO Ludwig went to the west mess hall, where
he observed the claimant lying on the floor. He approached the claimant, who
informed him that he had "heard something snap". The officer instructed several
inmates to obtain a stretcher and directed a correction officer to secure a
gurney. Claimant was put on the stretcher, the stretcher was placed on top of
the gurney and the claimant was wheeled to the infirmary.
CO Ludwig testified that he did not notice water on the floor as he walked
through the west mess hall to the place where the claimant had fallen and did
not observe other correction officers present experiencing any difficulty in
maintaining their footing. After the claimant was removed to the infirmary, CO
Ludwig returned to the area where the claimant fell and did not observe anything
out of the ordinary. He returned to his office and entered the event in the
Finally, the witness testified that prior to the date of claimant's accident he
had never received a complaint regarding the condition of the mess hall floors
and was aware of no prior accidents involving the floors.
On cross-examination the witness testified that he was the main officer in
charge of the Clinton Correctional Facility mess hall in August, 2005. His
office was in the kitchen area and he was able to observe portions of the west
mess hall through a security glass window. Individual correction officers were
assigned to each mess hall and their duties included the supervision of inmates
cleaning the mess hall following each meal, including the placement of wet floor
signs following mopping. He described the CCF mess hall as approximately the
size of a basketball court. In August, 2005 the mess hall was undergoing
construction and a temporary wall had been erected reducing the size of the mess
hall to approximately one-half the size of a standard basketball court. Looking
at the photograph admitted into evidence as Exhibit A, CO Ludwig testified that
he “believe[d]” that the red floor tiles depicted in this photograph
were new, having been recently installed as part of the mess hall
With regard to the incident of August 30, 2005 Officer Ludwig testified that he
was informed of claimant's accident by inmate Thomas Hoyer and that he proceeded
to the place where the claimant lay on the west mess hall floor. Upon arrival
the claimant informed him that he had heard something in his leg "snap" at the
time of his fall. He testified that as he approached the claimant he did not
notice whether the floor was wet and acknowledged that it could have been wet.
He did not recall seeing wet floor signs or yellow mop buckets in the area
where the claimant was lying. Following claimant's injury the witness notified
his supervisor and authored a memorandum regarding the accident (Exhibit 5).
The officer also notified CO Jarvis, the Fire and Safety Officer on duty on
August 30, 2005, of the claimant's accident. Jarvis appeared at the scene
approximately one hour following the incident.
On redirect examination CO Ludwig testified that the tables visible in Exhibit
A, a photograph of poor quality depicting a portion of the west mess hall, were
installed as part of the mess hall construction project. The tables and stools
shown in the photograph were bolted to the floor after installation of the new
tiles. The witness identified Exhibit 6 as the Inmate Accident Investigation
Report prepared by Fire and Safety Officer Jarvis. The report is dated August
30, 2005 and states in the description of accident "[i]nmate slipped on wet spot
on floor". The portion of the report reserved for describing the apparent cause
of the accident states "wet spot on floor - floor was drying after being
mopped". The report also contains the following statement of Mr. Germaine
recorded at 11:55 a.m. on August 30, 2005:
"Inmate Germaine #93A5445 stated that he slipped on wet spot on west messhall
floor, falling backward with his left leg bent underneath him, at this time he
herd [sic] a cracking sound."
Finally, the report includes a statement by inmate Hoyer in which he relates
that he was inside the serving line and observed inmate Germaine slip and fall
to the floor of the west mess hall.
On re-cross-examination the witness testified that it was common knowledge that
the floors were swept and mopped following breakfast, lunch and dinner each day.
He also acknowledged that the accident investigation report completed by CO
Jarvis contains no reference to the presence of wet floor signs or cones.
Brian Bezio was called to the stand. He testified that he has been employed by
the Department of Correctional Services for 24 years and has worked at Clinton
Correctional Facility since July 1986.
On August 30, 2005, Officer Bezio was assigned to the CCF east dining hall. On
that date he was informed by an inmate that CO Ludwig might require his
assistance in the west dining hall. Officer Bezio responded to the scene where
he observed Officer Ludwig standing over an inmate who was lying on the floor.
The witness then went to secure a gurney to take the inmate to the infirmary.
He testified that he did not slip or otherwise experience difficulty while
walking from the east mess hall to the site of claimant's accident or thereafter
to obtain the gurney. Officer Bezio did not observe water on the floor when he
arrived at the mess hall.
Officer Bezio testified on cross-examination that he was working in the east
side mess hall at CCF on August 30, 2005 when he was summoned to respond to an
incident in the west mess hall. He entered the west mess hall and spoke to CO
Ludwig who instructed him to secure a gurney for the purpose of transporting
claimant to the infirmary. Officer Bezio testified that he was not looking at
the floor and did not purposely observe the floor to determine whether it was
wet. He did not recall seeing mops, buckets, cones or other signs indicating a
wet floor in the west mess hall upon his arrival. The witness concluded his
testimony by stating that he did not recall whether or not the west mess hall
floor was wet when he responded to the scene after being summoned to assist CO
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 ; Jones
v County of Rensselaer, 51 AD3d 1073. 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 [citations 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 ). Where a
landowner creates a dangerous condition or had notice of its existence he or she
must take steps to warn users of the premises of latent dangerous conditions
which are not readily discernible through the reasonable use of one's senses
(Tagle v Jakob, 97 NY2d 165, 169 ; Bilinski v Bank of
Richmondville, 12 AD3d 911 ; Tarricone v State of New York, 175
AD2d 308 ). Here, claimant established by a preponderance of the
credible evidence that the defendant created a wet condition which caused his
fall and failed to provide any warning of the danger.
It is undisputed that the floor was mopped three times daily, once after each
meal. Breakfast was served between 7:00 a.m. and 8:30 a.m. and, according to
the mess hall logbook for the date of the accident (Exhibit B), the inmates were
cleared from the mess hall by 8:40 a.m. Officer Ludwig testified that
immediately thereafter several inmates swept and mopped the floors and wiped the
tables. The accident was recorded in the defendant’s logbook at 9:15 a.m.
(see defendant’s Exhibit B). This chronology of events is
consistent with the conclusion reached by CO Jarvis, the Fire and Safety
Officer, that the apparent cause of the accident was “[w]et spot on floor
- floor was drying after being mopped" (Exhibit 6).
It was also established that it was the defendant’s practice to place
warning signs or cones on the floor after it was mopped. By all accounts,
however, there were no signs or any other warning that the floor in the area
was wet at the time of the claimant’s fall. Although both CO Ludwig and
CO Bezio testified that they did not recall seeing any water on the floor upon
their arrival at the accident scene, CO Ludwig admitted on cross-examination
that the floor could have been wet and CO Bezio testified on cross-examination
that he was not looking at the floor and did not purposefully observe the floor
to determine whether it was wet. Although CO Ludwig testified that both mess
halls (east and west) were supervised by correction officers, the officer in
charge of the west mess hall on August 30, 2005 did not testify at trial.
The Court credits the unrefuted testimony of claimant that the floor was wet
and appeared to have been mopped shortly before the accident occurred. The
claimant testified in this regard that immediately after the accident he
observed wet “squiggle” marks on the floor. The fact that the
floor had been mopped after the inmates were cleared from the mess hall at 8:40
a.m. was corroborated by the testimony of CO Ludwig. The claimant testified
that no signs or cones warning of a wet floor were posted in the west mess hall
at the time of the incident and neither CO Ludwig nor CO Bezio could recall
seeing such signs or cones upon their arrival at the accident scene. Given
these undisputed facts, the Court concludes that the defendant created a
foreseeably dangerous condition by mopping the floor and failed to warn of the
Whether or not a hazard is open and obvious is generally a question of fact
(Tagle v Jakob, 97 NY2d 165, 169 ). Only when the evidence is
“clear and undisputed” may it be determined as a matter of law that
the condition was open and obvious so as to negate a duty to warn (Id. at
169). "There is no bright line test for determining what is open and obvious.
The test is whether '[a]ny observer reasonably using his or her senses would
see' the condition . . . Since the test incorporates a reasonableness standard,
it is fact-specific and usually presents a question for resolution by the trier
of fact" (see, Centeno v Regine's Originals, 5 AD3d 210, 211
 [citations omitted]) . Although CO Ludwig testified that there was a
discernable difference in the appearance of the floor tiles when they were wet,
this testimony alone is insufficient to permit the conclusion that there was no
duty to warn. This is particularly the case where, as here, the standard
procedure was to warn of wet floors following mopping through the posting of
cones and signs. Claimant was familiar with these procedures and the absence of
cones and signs created a circumstance where one in the claimant's position
would believe that no danger existed.
Moreover, the Court finds that the defendant failed to establish by a
preponderance of the credible evidence that any culpable conduct of the claimant
contributed to causing the accident (see CPLR 1411; 1412; PJI 2:36;
Gonzalez v Medina, 69 AD2d 14 ). No evidence at all was presented
which would permit the Court to conclude that the claimant was not paying
attention to where he was walking or otherwise should have seen and avoided the
water on the floor. CO Ludwig’s testimony that the floor was darker and
shinier in appearance when it was wet is, in the Court’s view,
insufficient to attribute any negligence to the claimant. The trial testimony
in this regard established that the floor tile was newly installed and, as
stated above, the claimant was accustomed to seeing warning signs on the floor
when it was wet.
Based on the facts adduced at trial the Court concludes that the defendant
caused a dangerous condition by mopping the floor and failing to warn of the
danger. The Court does not find that the condition was one which should have
been observed by the reasonable use of the senses and does not find the claimant
contributed to the happening of the accident.
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.
June 30, 2008
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.Sergeant Ludwig will be referred to as CO
Ludwig for purposes of this decision.