New York State Court of Claims

New York State Court of Claims

RICHARDSON v. THE STATE OF NEW YORK, #2008-031-519, Claim No. 110565


Synopsis


Claimant failed to establish Defendant had notice that window grate presented a hazard. Claimant also failed to demonstrate Defendant exercised exclusive possession and control of window grate necessary for a finding of res ipsa loquitur. Claim dismissed.

Case Information

UID:
2008-031-519
Claimant(s):
BARRY RICHARDSON
Claimant short name:
RICHARDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110565
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
ROBERT W. NISHMAN, ESQ.BY: HOWARD SHERMAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: THOMAS A. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 3, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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.”[1] 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 the porch.

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 removed.

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 area.

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.”

Common Negligence

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 874).

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.
Res Ipsa Loquitur
Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it (citation omitted). Kambat v St. Francis Hosp., 89 NY2d 489.
Claimant must prove the following three elements to recover against the State on a res ipsa loquitur cause of action:
  1. The event was of a kind which ordinarily does not occur in the absence of someone’s negligence;
  2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; and
  3. It must not have been due to any voluntary action or contribution on the part of [Claimant] (see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226; see also Harrington v State of New York, Ct Cl, May 23, 2006 [Claim No. 109521, Motion No. M-71288], Collins, J., UID No. 2006-015-089).
Courts have grappled with collapsing grates and the doctrine of res ipsa loquitur. In Patrick v Bally’s Total Fitness (292 AD2d 433), a janitor who was injured when he fell through a metal drainage grate while working, sued the property owner for damages. The Court granted defendant’s summary judgment motion finding plaintiff had failed to prove that the property owner had exclusive control over the grate because it was on the floor of a closet that people “other than its employees had access to . . . Thus, the exclusive control element of the res ipsa loquitur doctrine cannot be established (citation omitted)” (Id. at p. 435).

In Bodnarchuk v State of New York (49 AD3d 581), an asbestos worker sued the State for injuries sustained when he fell through a metal grate into a hole below a window that workers were using to pass equipment and material through to perform their asbestos abatement work at a hospital. Plaintiff failed to establish exclusive control of the grate, particularly in light of proof that all the workers were using the window instead of the entrance they were supposed to use during the abatement process.

Claimant’s assertion of negligence founded on the doctrine of res ipsa loquitur must fail, based on the proof presented at trial. Claimant has not shown that Defendant had exclusive control of the window well grate and the area immediately surrounding it. Although Claimant was ticketed for being out of place, the testimony from Defendant’s agents was contradictory as to whether or not the area was off-limits. Even if it was clearly established that the area was off-limits, Claimant testified that he walked in that area many times. It also appears that other inmates used that area as well to feed the cats that lived under the H-Dorm porch.

Accordingly, claim 110565 is dismissed.

All other motions on which the Court may have previously reserved or which were not previously determined are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

December 3, 2008
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1].All quotations are from the Court’s trial notes or the audio recording of the trial.