New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2008-044-503, Claim No. 112138, Motion Nos. M-73429, CM-73753


Synopsis


Existence of factual questions and issues of credibility concerning presence of a dangerous condition on stairway located within correctional facility are fatal to both claimant’s motion and defendant’s cross motion for summary judgment.

Case Information

UID:
2008-044-503
Claimant(s):
MICHAEL REID
Claimant short name:
REID
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112138
Motion number(s):
M-73429
Cross-motion number(s):
CM-73753
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
GARY E. DIVIS, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 25, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant filed this claim to recover for personal injuries allegedly received when he fell while descending a flight of concrete stairs located at Southport Correctional Facility (Southport). Defendant State of New York (defendant) answered. Discovery was conducted. Claimant moves both to limit the issues of fact for trial pursuant to CPLR 3212 (h) and for summary judgment on the issue of liability. Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. Claimant replies. Claimant alleges that he was handcuffed in front, with his hands connected to a waist chain, and that he slipped on the wet concrete stairs on his way to the outdoor recreation pens. Claimant asserts that the water on the stairs had existed for sufficient time for defendant to have constructive knowledge of the condition. Claimant alleges that because he was shackled, he could not move his hands from the front of his body and could not use the handrail to stop his fall. Claimant also alleges that as a result of the fall, he sustained injuries to his lower back, coccyx, and right elbow, and that he continues to suffer from muscle spasms and stiffness.

On this motion, claimant contends that defendant’s determination to shackle him in a manner which prevented him from using the handrail is a violation of the New York State Building Code (the Building Code) and constitutes negligence as a matter of law. Claimant argues that by failing to provide a physical escort for him while he was shackled and traversing stairs, defendant created a hazardous condition which was the proximate cause of claimant’s injuries.[1]

Conversely, defendant contends that the conduct of requiring inmates to negotiate staircases while in shackles, pursuant to policy established by the Department of Correctional Services, is the performance of a governmental function for which the State is immune from liability. Defendant also asserts that the evidence, particularly the videotape of claimant’s fall, establishes that the stairs were not wet, and thus with no existing defective condition the claim should be dismissed.

In his affidavit in support of this motion, claimant states that he was shackled by first having his arms handcuffed in front of his body and then a chain was attached to the handcuffs and wrapped around his waist. The chain was secured with a padlock in the back. Claimant states that the position of the shackles pulled his head and torso forward and prevented him from moving his hands to his side. Claimant asserts that there had been rain and mist[2] during the morning of his accident and that several inmates had already used the stairwell to go to and return from recreation. Claimant denies seeing any water on the stairs, but states that his clothes were wet after his fall, although they had been dry while he was descending the stairs. Claimant states that because he was shackled, he could not grasp the handrail to catch himself when he slipped.

Claimant provides an affidavit from Daniel S. Burdett, a professional engineer, in support of his motion. Burdett avers that he reviewed the exhibits submitted on this motion and opines that defendant’s procedure in requiring claimant to descend the stairway while shackled in said manner violated the Building Code. Burdett states that the Building Code requires a handrail on at least one side of the staircase, the purpose of which is to allow a user to reach out to the handrail to try to stop a fall. Burdett states that in the way in which claimant was shackled, he could not use the handrail, and thus when he slipped, he could not stabilize himself and prevent the fall. Burdett therefore equates this situation with the complete absence of a handrail.

Burdett states that the stair treads were also equipped with a metal edge which both delineates the stair and prevents the concrete edge from deteriorating. Burdett states that the metal edge should be embossed to provide more traction, and that without such embossing, the likelihood of slipping is increased. Burdett states that by shackling claimant with handcuffs in the front and attaching them to a waist chain secured by a padlock in the back, defendant changed claimant’s center of gravity from the center of his body to the front of his body, and caused claimant’s movement to become more unstable. Burdett opines that defendant’s shackling procedure constituted a deviation from accepted engineering practices, and was unsafe, hazardous and deficient in design, and was utilized without considering safety for the stairway user.

Claimant also submits an affidavit from Robert J. DeRosa, currently Director of Risk Management for Manhattan College, and a former warden of three New York City Department of Corrections (NYCDOC) facilities. DeRosa states that during his NYCDOC career, he investigated accidents and other incidents in the prison facilities, and analyzed surveillance videotapes. DeRosa viewed the videotape of claimant’s accident and opines that there was some substance on the second stair up from the landing which caused claimant’s left foot to slip forward, resulting in his fall down the stairs. DeRosa observes that after the fall, a sergeant, another officer, and a male nurse descended the stairs and stepped in the same general area where claimant slipped. DeRosa also notes that the Fire and Safety Officer[3] physically inspected the wrong stair when he checked the third stair up from the landing, because claimant actually slipped on the second stair. DeRosa notes that no one in the videotape examined the area where claimant slipped, and opines that the slippery substance could have been removed when the other individuals walked on that stair, or it could have been removed when claimant hit his back on that stair during his fall. DeRosa further opines that a shackled inmate who is required to negotiate the stairs should be physically supported by an escort officer.

DeRosa also reviewed the videotape submitted by defendant in support of its cross motion for summary judgment.[4] DeRosa notes that because the three inmates on that tape were forewarned that they should walk down the stairs and reach out for the handrail at a certain time, their ability to grab the handrail would be different than claimant’s reaction when he unexpectedly slipped. DeRosa agrees that although it generally may be appropriate for inmates to be shackled when they are moving between floors, he still believes that an inmate should be physically supported by an escort officer when traversing the stairs.

Captain Nick Kapnolas, the Fire and Safety Officer, testified at his deposition[5] that he arrived in the stairwell shortly after claimant’s fall and inspected the stairs. Kapnolas testified that the stairs “were not wet at all.” At his examination before trial, Correction Officer Frank Zywicki testified that he was on the second floor (where claimant was housed) at the door to the stairwell when claimant fell. Zywicki stated that although he did not witness the fall, he heard a noise and when he investigated, he saw claimant laying on the landing. Zywicki did not observe that the stairs were wet or that they were otherwise unsafe.

Jeremy Clement, a Registered Nurse at Southport, testified at his deposition that when he examined claimant, he observed that the stairs were dry. However, Clement stated that claimant had told him that he slipped on wet stairs. During his deposition, Nicholas Sampsell, a Correction Sergeant, testified that as a Level II inmate, claimant was handcuffed in front and that after a chain was placed through a metal ring on the handcuffs, it was wrapped around his waist and secured in back with a padlock. Sampsell testified that although it would take some effort, he believed that generally, an inmate could pull the chain enough to move his hands from side to side. Sampsell stated that he was unsure whether an inmate would actually be able to place his hand on the hand rail when he was shackled in that manner. Based upon his belief that shackles were used to prevent excessive hand movement, Sampsell thereafter speculated that the inmate might not be able to use the railing.

In further support of his motion, claimant also submitted a videotape of his accident as recorded by a security camera in the stairwell. Claimant is shown descending the staircase and slipping on the second stair up from the landing, and then falling down to and laying motionless on the landing for several minutes. Claimant does not move from his prone position until Nurse Clement examines him and has him sit up. Claimant then stands up and is escorted up the stairs and presumably back to his cell. During the period of time between claimant’s fall and his return up the stairs, several officers and the nurse walked on the second stair, in the general vicinity where claimant slipped, a total of seven times. Additionally, Nurse Clement set down a file (or binder) on the second stair before he examined claimant. One of the correction officers picked up the file, held it for a short time, and then placed it back down on the second stair. Nurse Clement then retrieved the file before escorting claimant back up the stairs. Given the height of the camera above the stairs, the dim lighting in the stairwell and the poor quality of the tape, it is impossible to determine whether there was any water or other substance on the stair, either before or after the fall, solely by viewing the videotape.

The purpose of defendant's videotape (defendant’s video) in support of its cross motion for summary judgment is apparently to show that an inmate, even though shackled, can get his hand onto and use the handrail. The stairwell in defendant’s video does not appear to be the same stairwell where claimant fell. Further, because the inmates were instructed when to move toward and grab the handrail, the Court finds that defendant’s video does not necessarily represent the reaction of an inmate who experiences a sudden loss of footing. However, contrary to claimant’s assertion, defendant’s video does establish that it is possible for a shackled inmate to place his hand on and use the handrail.

It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [1993]).

To prevail on this motion for summary judgment, claimant must prove that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, supra at 837). Once the movant meets his or her burden of establishing entitlement to judgment as a matter of law, it is incumbent on the opposing party to submit evidence which creates a material question of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Claimant’s request for summary judgment based solely upon defendant’s policy of requiring an inmate to negotiate a staircase while being shackled and without a personal escort must be denied.[6] As defendant correctly notes, claimant did not specifically raise this policy as a basis for liability in the claim as filed and served, and defendant therefore appropriately did not raise governmental immunity as an affirmative defense in its verified answer. Notwithstanding claimant’s expert’s opinion that such policy was negligent, defendant’s video provides evidence that it is possible for an inmate shackled in the same manner as claimant to grab the handrail. Whether a shackled inmate could grab a handrail while falling unexpectedly is clearly a question of fact.[7]

Claimant did establish that the recreation area is open to the elements, that it had been raining from shortly after midnight through 5:00 a.m., and that there was mist from that time until approximately 10:00 a.m. Claimant also established that inmates from the third floor had completed their recreation and used the stairwell prior to his scheduled recreation. That evidence does support an inference adequate for the purpose of this motion that the water existed on the stairs for a sufficient length of time to charge defendant with constructive notice. However, there is also evidence which was presented through deposition testimony from the correction officers and Nurse Clement that there was not any water on the stairs.[8] Based upon the totality of the evidence before the Court, there are clearly factual questions and issues of credibility which must await resolution at trial. Accordingly, both claimant’s motion and defendant’s cross motion for summary judgment are denied.

January 25, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on May 21, 2007; Affirmation of Gary E. Divis, Esq., dated May 16, 2007, and attached supporting Affidavits and Memorandum of Law.


2) Claimant’s Exhibits (including videotape) in Support of Notice of Motion.

3) Claimant’s Supplemental Memorandum of Law dated June 8, 2007, and attached supporting Affidavit.

4) Defendant’s Notice of Cross Motion filed on July 20, 2007; Affirmation of Geoffrey B. Rossi, AAG, dated July 18, 2007, and attached exhibits (including videotape).

5) Claimant’s Reply filed on October 5, 2007, and attached Affidavit and Memorandum of Law.

6) Correspondence (and attachment) from Gary E. Divis, Esq. to the Court dated November 8, 2007.


7) Correspondence from Gary E. Divis, Esq. to the Court dated December 5, 2007.


Filed papers: Claim filed on March 27, 2006; Verified Answer filed on April 27, 2006.

[1]. Claimant states that there is conflicting evidence as to whether the stairs were wet and that said issue would require resolution at trial, but nonetheless asserts that the Court should find defendant liable on this motion for summary judgment.
[2]. Claimant supports his recollection of the weather conditions with certified copies of meteorological records on file at the National Climatic Data Center, Asheville, North Carolina.
[3]. The Fire and Safety Officer was later identified as Captain Nick Kapnolas.
[4]. Each party submitted a videotape in support of their respect motions. Defendant's videotape shows three inmates, who are shackled in the same manner as claimant was prior to his fall, walking individually down a set of stairs. As each inmate approaches the last few stairs, the inmate is directed to move over to and use the handrail. The contents of both videotapes are further discussed infra, at 6-7.
[5]. Claimant submitted several deposition transcripts in support of his motion, and in opposition to defendant’s cross motion.
[6]. Claimant’s reliance on Carathers v State of New York (Ct Cl, Oct. 22, 2007, Scuccimarra, J., Claim No. 109001 [UID # 2007-030-042]) is misplaced. Claimant’s argument - that the circumstances surrounding his accident are similar (and thus the incident was foreseeable) to those of a shackled, wheelchair-bound inmate who was left unattended, without the brake being set, on a sloped sidewalk - is far from persuasive.
[7]. Furthermore, the Court finds that without a more thorough briefing of the issue, it would be inappropriate to determine whether defendant’s policy is entitled to governmental immunity.
[8]. Moreover, the videotape itself provides no conclusive evidence to establish either the existence of any water or other slippery substance on the stairs, or the lack of such substance.