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
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.”
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
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
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.