Barry Richardson (“Claimant”) filed claim number 110565 on February
28, 2005 alleging negligent maintenance of a window well grate that collapsed
causing Claimant to fall and suffer injury. I held a trial on this matter on
July 1, 2008.
Claimant testified he has resided in the State prison system since 1988. On
October 26, 2004, the date of the accident, Claimant had been residing at
Groveland Correctional Facility (“Groveland”) for four years.
Inmates are housed in dormitories at Groveland and Claimant “locked”
in F-Dormitory (“F-Dorm”) at that time. The morning of the
accident, he left F-Dorm after signing out to go to recreation in the yard,
specifically, his destination was the “Weight Shack.” Exhibit B is
a photograph that depicts F-Dorm in the far left corner behind a tree. Next to
that tree, the Weight Shack can be seen. There is actually no
“shack,” but rather, an area surrounded by chain link fence with
free weights and benches. The right half of Exhibit B shows the corner of
H-Dorm where the accident occurred.
Claimant testified that he left the Weight Shack to use a water fountain on the
side of H-Dorm that faces the Weight Shack (Exhibit J). As he walked toward
H-Dorm and the water fountain, Claimant heard his name being called from someone
on H-Dorm’s front porch. He proceeded to walk along the side of H-Dorm,
between a bush and a window at the corner of the dorm, on his way to the side of
the porch to see who was calling him. Claimant admitted that he had once lived
in H-Dorm and he was aware that no visiting was permitted on the porch or in the
dorm (Exhibit A).
Claimant walked on a window well grate that was between the bush and the
building and approximately three to four feet from the side of the porch
(Exhibit C). Apparently, the grate collapsed beneath Claimant as he walked over
it. Claimant stated he fell straight down, about four or five feet, as the
grate “slidded in front of me.”
At the bottom of the window well, he observed leaves and debris; he also
observed a large cut on his leg. Although he was able to climb out of the
window well, Claimant was unable to walk to the infirmary, and so he lay on the
ground until help came.
The Inmate Injury Report, Exhibit 4, designated the time of injury as 8:15 a.m.
and indicated that Claimant received treatment at the facility infirmary for a
four to five inch “V shaped Flap laceration” on his lower left leg.
Claimant received 7 internal stitches and 17 external stitches to close the
wound (also Exhibit 4).
There is some dispute over Claimant’s reason for being behind the bushes
and near the grate. Exhibit 4 clearly indicates that Claimant was
“feeding kittens” at the time of the accident. Claimant testified,
however, that he was not asked to sign Exhibit 4 and that none of the
handwriting on Exhibit 4 was his. He adamantly denied that he was feeding
kittens at the time of the accident. In fact, he did not recall seeing any
kittens there. He did admit he had walked on the grate before the accident.
Because inmates are not allowed to visit on the front porch, he would walk over
to the side of the porch by going behind the bush and over the grate. He
testified he had done this “many times” over the four years he was
at Groveland before the accident. Claimant believed there were no rules
prohibiting an inmate from walking around the building, inmates were only
prohibited from being on the porch and in the dorm.
Correction Officer Martin Minemier testified on Claimant’s direct case.
At the time of the accident, he was the dorm officer for H-Dorm on the 7:00 a.m.
to 3:00 p.m. shift. He had been at Groveland approximately 20 years and the
dorm officer for H-Dorm since 1990. He stated there were a few rules specific
to H-Dorm because it was an “honor dorm.” He testified there were
areas at Groveland that were off-limits to inmates. Some of those areas had
signs posted to that effect. When he gave his deposition, Officer Minemier
stated that all areas that are off-limits are posted as such. At trial,
however, he testified that his deposition testimony was in error. I understood
from his testimony at trial that inmates were free to walk on the walkways and
roadways around H-Dorm but they definitely were not permitted to be in the dorm
or on the porch unless they resided there. That rule was posted. The gray area
appears to be the area immediately around the perimeter of the building.
Officer Minemier was less than clear on whether or not an inmate could be in
those areas, and it appeared to depend on the situation. He was clear, however,
that there was no written rule prohibiting Claimant from standing at the side of
Regarding the grate itself, Officer Minemier stated he had seen inmates
removing the grate and cleaning out the window well sometime before the
accident. This work was done at the direction of facility staff. Prior to
Claimant’s accident, he was not aware that inmates traversed the grate to
speak with H-Dorm residents at the side of the porch.
On cross-examination, Officer Minemier reviewed a photograph of the H-Dorm
porch (Exhibit C). He was asked to identify a brownish black spot in the corner
of the photograph at ground level near the porch. He was asked to circle a
similar spot on Exhibit J. While the Officer went as far as to say it looked
like an “animal,” counsel and the Officer were reluctant to come to
an agreement over just what kind of animal it was. I have determined that the
animal in both exhibits is a cat. I will not go as far as to say it is the same
cat in each photograph, however. In Exhibit C, the cat is lying below heat
vents that are in the wall. According to Officer Minemier, even though
Groveland brought specialists into the facility in 2003 to collect, spay and
neuter the cats, the drop in population after that effort did not seem to have
an impact on the cat population around H-Dorm in the cold weather, since the
cats liked the heat vents.
Claimant read portions of a deposition of William Batchellor, a Groveland
correction officer. Officer Batchellor had been an officer at Groveland for 13
years at the time of the accident, much of that time as the H-Dorm officer. He
was the 3:00 p.m. to 11:00 p.m. officer on the day of the accident. He
testified at his deposition that he believed the grate over the window well that
Claimant fell through was “permanent” and there to “protect
the window well.” He was not aware that the grate was ever removed for
cleaning, but that if it was, it would be the responsibility of
Groveland’s maintenance department. Exhibits 1, 2 and 3 are pictures of
the grate. Exhibits 1 and 2 depict the window well with one part of the grate
The State called Sergeant Stephen Skawienski to testify on its direct case.
Sergeant Skawienski, who began working at Groveland in the Spring of 2004, has
been a correction officer for more than 23 years. He testified that he was on
duty the day of the accident. He overheard a medical emergency call on his
2-way radio. Accordingly, he responded to the scene and saw Claimant lying on
the ground near H-dorm. He stayed with Claimant until a facility van arrived
and took Claimant to the infirmary. Sergeant Skawienski then went to look at
the grate. He observed a carton of milk in the bottom of the window well, but
could not determine how long it had been there or if it was related to Claimant
and the accident. The grate looked as if someone had fallen through. He stated
he also saw a kitten. He later had a conversation with Claimant about the
accident. Claimant told him he was feeding the cats, but the Sergeant made no
specific reference to the milk carton. Sergeant Skawienski wrote Claimant an
inmate misbehavior report for being out of place. He opined that the area where
Claimant fell was “off-limits”; all areas near buildings were
off-limits to inmates. Inmates were required to be on the walkways and
sidewalks. He testified that Officer Minemier was mistaken when he stated that
he believed inmates could be near the dorm’s porch.
Officer Cathryn Jensen was on duty as a Yard Officer on the day of the
accident. Her position was behind the H-dorm in the baseball field. She
recalled Claimant passing by her post and saying hello. Prior to the accident,
he was not carrying anything and he was walking to the front of H-Dorm. Later,
she observed Claimant on the ground, calling to her and indicating that he had
hurt himself. He was on his hands and knees, crawling. She walked over to him,
saw that he was hurt and called in a medical emergency over the radio. Between
her radio call and the arrival of the facility van, she spoke to Claimant to
find out what happened. He told her that he had been feeding the cats behind
the bush and fell through the grate.
After the facility van picked Claimant up to take him to the infirmary, Officer
Jensen inspected the grate. Although she had no independent recollection at
trial, she had described what it looked like during her October 2006 deposition.
She stated then that the grate had fallen into the window well and she could not
figure out how. It was too heavy to lift it out and put it back in place. She
observed leaves and debris in the window well but she did not see any milk
carton nor did she see any cats, even though cats were usually around that
Officer Jensen was asked about cats living near H-Dorm being fed and testified
that “many inmates feed cats” and that inmates are normally not
written up for feeding cats. She testified that, if you live in H-Dorm, you can
feed the cats that live under the porch, but inmates from other dorms are not
permitted to do so. Officer Jensen also testified concerning Exhibit 4, the
accident report. She stated that, although it bears her name, it is not her
handwriting or her signature. She believes her name is on the form only to
designate her as the reporting employee.
Officer Jensen was also asked about the H-Dorm perimeter and where inmates were
permitted to be within that perimeter. She conceded there were no signs posted
that prohibited an inmate from standing near the dorm and talking to an H-Dorm
inmate standing on the porch or through a window, but inmates knew they were not
supposed to be near the building. In particular, with regard to the area behind
the bush where Claimant fell, Officer Jensen stated that inmates are
“normally not allowed in that area.”
It is well established that "[t]he State - just as any other party . . . is
responsible, in the operation and management of its schools, hospitals and other
institutions, only for hazards reasonably to be foreseen, only for risks
reasonably to be perceived" (Flaherty v State of New York, 296 NY 342,
346) and with respect to the safety of persons on its property, the duty of the
State is one of reasonable care under the circumstances (see Miller v
State of New York, 62 NY2d 506). However, the State is not an insurer of
the safety of its premises and negligence cannot be
inferred solely from the happening of an accident (see Killeen v State of New
York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d
In order to establish liability in this type of case, Claimant must
demonstrate, by a preponderance of the credible evidence, that a dangerous
condition existed; that the State either created this dangerous condition, or
had actual or constructive notice of the condition and failed to correct the
problem within a reasonable period of time; and that this dangerous condition
was a proximate cause of the accident (Goldman v Waldbaum, Inc., 297 AD2d
277; Dapp v Larson, 240 AD2d 918).
Upon the record before me in this matter, I find that the window grate was
defective and constituted a dangerous condition. However, Claimant has failed
to establish that Defendant had notice of this dangerous condition and failed to
take reasonable steps to remedy the situation. The area where Claimant fell was
not in a common walkway, or in an area where one would necessarily expect foot
traffic. There was no showing of any type of accident history relating to this
or other window grates within the facility and nothing to indicate that
Defendant was aware, prior to Claimant’s accident, of any hazard in the
area where Claimant fell. Accordingly, Defendant cannot be held liable on a
theory of simple negligence.