New York State Court of Claims

New York State Court of Claims

DEFEO v. THE STATE OF NEW YORK, #2008-030-008, Claim No. 111301


Synopsis


Inmate claimant failed to establish after trial that Green Haven Correctional Facility either created or allowed a dangerous greasy condition to exist in one of the stairwells there, causing him to slip, fall and suffer serious injury. No notice. No showing that the state should have been aware of any greasy condition, and had failed to fix the problem prior to the accident. Claimant did not establish any alleged delay or inadequacy in the medical treatment he was afforded thereafter

Case Information

UID:
2008-030-008
Claimant(s):
RONALD DEFEO
Claimant short name:
DEFEO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111301
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
RONALD DEFEO, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
April 2, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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Decision

Ronald Defeo, an inmate proceeding pro se, alleges in his claim that defendant’s agents at Green Haven Correctional Facility either created or allowed a dangerous condition to exist in one of the stairwells there, causing him to slip, fall and suffer serious injury. Trial of the matter was held on March 20, 2008.

Claimant testified that on July 22, 2004 at approximately 10:30 a.m. he was on the second deck of C-Block at Green Haven proceeding up the stairs to the third deck where he was housed. When he got to the top, his “left leg came out from underneath . . . [him] on some grease and [he] did a belly wop and . . . [his] body went forward.” He said in a “split second” he had a choice: either land on his face or turn his body to the left and use his shoulder to block the fall. He hit the ground with his shoulder “so hard, that . . . [he] had a hard time shaking it off.” Another inmate, Angel Galarza, had been coming down the stairs and witnessed the fall. Mr. Galarza helped claimant up, Mr. Defeo testified, and also cleaned up the greasy material found on claimant’s sneaker. Claimant went to the facility clinic for medical treatment.

Mr. Defeo indicated that he has had two surgeries, has lost use of his arm - he cannot raise his arm above his head - and has “done so much physical therapy they don’t want . . . [him] down there anymore.” He also indicated he has a “degenerative disease” in his arm, and that medical personnel failed to provide him with timely and adequate medical care, including diagnostic tests such as an MRI or an x-ray.

On cross-examination, Mr. Defeo confirmed that when his accident occurred he was in an open stairwell that was accessed by other inmates as well. Since it was “a nice sunny day, there were only two or three of us left in the block.” He was looking ahead as he walked on the stairs, and did not observe anything on the flat part of the stairs except for the sand left over from the shoes the baseball-playing inmates would leave on the stairs. He explained that all he could see was sand, and Mr. Galarza at the top of the stairs ahead. Claimant did not see whatever the condition was that caused him to slip before he slipped, nor did he know when such “grease” was present. He said “they don’t clean the stairs.”

Claimant submitted without objection a sworn statement by Angel Galarza confirming the happening of the accident as described by Mr. Defeo. [Exhibit 1]. Mr. Galarza notes that after he helped Mr. Defeo get up, he “noticed his left sneaker was covered with some sort of grease . . . [Mr. Galarza] went back to the stairs and in closer inspection observed that the third and fourth step from the top of the stairs were covered with some sort of clear grease . . . [Mr. Galarza] took . . . [Mr. Defeo’s] sneaker off and cleaned the grease from it, and then . . . went to the slop sink and filled a bucket with hot water and soap, brought a mop and scrub-brush and cleaned the stairs.” [Id.].

Claimant also submitted a photograph showing an apparent substantial scar along his shoulder. [Exhibit 2].

No other witnesses testified and no other evidence was submitted.

Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. As a landowner, its duty is to exercise “reasonable care under the circumstances . . .” [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that the State did not create a dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984); Septoff v La Shellda Maintenance Corp., 242 AD2d 618 (2d Dept 1997) . With respect to constructive notice, any

“. . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted).” Gordon v American Museum of Natural History, supra at 837. Additionally, constructive notice may be established by showing a recurring dangerous condition. See Lowe v Spada, 282 AD2d 815, 817 (3d Dept 2001).

Based upon the inconclusive evidence present here, even if there was a dangerous condition created by some sort of greasy substance on the stair tread, there has been no showing that the State was aware of the condition and failed to cure it. It is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the State’s part, [Gordon v American Museum of Natural History, supra], assuming that proximate cause and actual damages are proven as well.

Claimant testified that other inmates had used the staircase, and that the sand that proliferated from the shoes of the baseball players may have obscured the greasy spot he discovered only after he fell. Indeed, it would seem that the presence of sand would likely create better traction on the stairs. There was no showing that the State created the greasy condition, or was aware, or should have been aware, of any greasy condition, and had failed to remediate the problem prior to Mr. Defeo’s unfortunate accident.

With regard to the asserted claims of delayed or inadequate medical treatment, it is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990). No evidence was presented at all to support such a cause of action. Only the testimony of the claimant has been presented in support of any claim of malpractice or neglect. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There is thus no proof that accepted standards of care were not met.

Claimant has failed to establish by a preponderance of the credible evidence that the State should be held liable for his slip, fall and any resulting injury, or for any alleged delay or inadequacy in the medical treatment he has been afforded. While the court is sympathetic to claimant’s apparent discomfort, Claim Number 111301 is nonetheless dismissed in its entirety.

Let judgment be entered accordingly.


April 2, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims