LANNO v. THE STATE OF NEW YORK, #2009-010-005, Claim No. 107468
Inmate slip and fall dismissed, no notice of condition, claimant’s own
negligence sole proximate cause of fall.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
ANTHONY M. GIORDANO, ESQ
HON. ANDREW M. CUOMO
Attorney General for the
State of New
YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
March 17, 2009
See also (multicaptioned
Claimant seeks damages for injuries she sustained during her incarceration at
Bedford Hills Correctional Facility (Bedford), when, on July 31, 2001, she
slipped and fell on a wet floor. The trial of this claim was bifurcated and
this Decision pertains solely to the issue of liability.
Claimant testified that, at approximately 8:15 a.m.on July 31, 2001,
Correction Officer Bailey-McGarrel (C.O. Bailey-McGarrel) directed claimant to
retrieve a mop, stored near the slop sink in the rear of the laundry room, for
the purpose of mopping a wet floor (T:10-11).
Claimant maintains that she was not told the location of the wet area (T:15).
Claimant, who weighed 320 pounds (T:14) and was wearing State-issued boots with
a “plastic” bottom (T:15), proceeded to the laundry room.
When claimant entered the laundry room, she did not observe any water on the
floor or any wet floor signs displayed. She walked beyond the washing machines
to the sink, but did not find the mop. While at the sink, claimant rinsed her
coffee cup and then retraced her steps. Before reaching the laundry room exit,
claimant slipped and fell on soapy water (T:14). According to claimant, at that
point, she noticed water “shot out” from one of the washing machines
) and observed more than a gallon of water on the floor (T:68).
Claimant conceded that while she was proceeding towards the exit, she had not
been looking down at the floor (T:78)
just stepped into the water and fell. C.O. Bailey-McGarrel responded to the
scene of claimant’s fall and completed a memorandum regarding the accident
(Ex. 6). Claimant testified that the purpose of the memorandum was to record
the event and not to provide every single detail.
While claimant testified that she had previously complained about the washing
machines because they were broken “a million times” (T:42), she
could neither identify the recipient of her complaints nor specify when she had
made the complaints (T:28). Claimant also maintained that, after her fall, she
had a conversation with C.O. Bailey-McGarrel who stated that, despite several
attempts to repair the washing machines, the repair had never been done
Claimant’s testimony regarding the allegedly faulty washing machines was
not persuasive (T:28, 32, 41). Detracting from her credibility were the numerous
inconsistencies between her trial testimony and her examination before trial.
For example, at trial claimant testified that she had witnessed prior floods in
the laundry room because she worked in maintenance (T:32-33); however, at her
examination before trial, she described her work assignment as “outside
grounds and landscape” (T:36-38). Additionally, claimant conceded at her
deposition that, prior to her fall, she had no knowledge of any problems with
the washing machines.
C.O. Bailey-McGarrel testified that, on July 31, 2001, during her 7:00 a.m. to
3:00 p.m. shift (T:93), she noticed water on the laundry room floor and called
for maintenance (T:99-100). She also directed claimant to clean up the water in
the laundry room (T:102, 114). While Bailey-McGarrel did not recall the exact
words of her conversation with claimant, Bailey-McGarrel was certain that there
would have been mops in the laundry room (T:105). Prior to claimant’s
fall, Bailey-McGarrel was not aware of any other inmate falls in the laundry
room (T:107) and she had no personal knowledge of malfunctioning washing
machines. Bailey-McGarrel further testified that she did not recall any
conversation with claimant regarding the washing machines or their repair
Claimant presented an incident report dated July 28, 2001, regarding an inmate
slip and fall on water in the laundry room (Ex. 11). The report, however, does
not indicate the source of the water and it cannot be gleaned from the report
that the water was attributable to a faulty washing machine.
Mark Hayo testified that he has been employed by the New York State Department
of Correctional Services at Bedford for 18½ years and has been the Plant
Superintendent for the last 2½ years (T:130-31). At the time of
claimant’s accident, he was a Maintenance Supervisor III and oversaw a
maintenance staff of 15 people (T:131). In this position, he processed work
orders, assigned tasks, and was responsible for maintenance of the washing
machines. He attended two training sessions, provided by the manufacturer,
concerning repair of the machines and he supervised the individuals who fixed
the machines (T:135).
Hayo testified that the laundry cabinets and soap dispensers were inspected
weekly (T:136). He explained that the washing machines were installed on a
raised concrete platform. Water entered through the back of the machines and at
the appropriate cycle emptied water into a troth that flowed down to a drain
behind the machines (T:138-39). Hayo never witnessed a large quantity of water
“shoot out” of the machines and never observed water on the laundry
room floor (T:142). He further noted that there was an extra lip on the
platform for the purposes of containing any water. Hayo testified that inmates
were not assigned to maintenance.
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).
The State, however, 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; Condon v State
of New York, 193 AD2d 874).
In order to prevail on her claim, claimant must show: the existence of a
foreseeably dangerous condition; that the State created the condition or had
either actual or constructive notice of the condition; that the State failed to
remedy the condition within a reasonable time; that such condition was a
proximate cause of claimant's accident; and that claimant sustained damages
(see Gordon v American Museum of Natural History, 67 NY2d 836;
Birthwright v Mid-City Sec., 268 AD2d 401; Mercer v City of New
York, 223 AD2d 688, affd 88 NY2d 955). Further:
“[w]here the facts proven show that there are several possible causes of
an injury, for one or more of which the defendant was not responsible, and it is
just as reasonable and probable that the injury was the result of one cause as
the other, plaintiff cannot have a recovery, since he has failed to prove that
the negligence of the defendant caused the injury.”
(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also
Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New
York, 179 AD2d 947).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that there
is a lack of credible evidence to establish claimant’s burden of proof
(see Seneglia v FPL Foods, 273 AD2d 221 [no evidence that
defendant created or had either actual or constructive notice of a wet floor
upon which plaintiff fell]). Significantly, claimant “presented no proof
with respect to how long the puddle in question was on the floor before she
fell” (Deveau v CF Galleria at White Plains, LP, 18 AD3d 695,
In addition to the previously noted detractions from claimant’s
credibility, the Court finds that claimant’s version of the events
preceding her fall strains credulity. Specifically, claimant’s testimony
is not believable that while she allegedly had prior knowledge of a faulty
washing machine because it had been broken “a million times,” she
proceeded into the laundry room without noticing a torrent of water which,
according to claimant,“shot out” more than a gallon of water onto
the floor and it was not until she retraced her steps toward the exit that she
noticed the alleged condition. Not only is claimant’s account not worthy
of belief, if indeed there had been such a condition present, then claimant was
bound to see that which was readily observable with a proper use of her senses
and she had a duty to conduct herself accordingly (see Luksch v
Blum-Rohl Fishing Corp., 3 AD3d 475 [if alleged condition described by
plaintiff as “very wet with standing water pooling in spots” was
open and obvious, then it is a factor to be considered in assessing
plaintiff’s comparative negligence in failing to avoid the condition];
Stasiak v Sears, Roebuck & Co., 281 AD2d 533 [complaint dismissed in
slip and fall case where plaintiff could have easily observed puddle of spilled
paint]). Indeed, when an inmate fails to use ordinary care and pursues a
dangerous course of conduct, she must take responsibility for her own negligence
(see Carter v State of New York, 194 AD2d 967).
Additionally, the Court finds that there was a lack of evidence sufficient to
establish that the State had notice of a potentially dangerous condition in the
laundry room. Significantly, there is no basis for finding that the floor had
been wet for an appreciable length of time prior to claimant’s fall so as
to permit defendant to rectify the condition prior to claimant’s fall
(see Goberdhan v Waldbaum’s Supermarket, 295 AD2d 564 [in
the absence of proof as to how long the puddle of water was on the floor, there
is no evidence which would permit an inference that defendants had constructive
notice of the condition]). Unlike Kellogg v State of New York, Ct Cl,
April 30, 2004, Ruderman, J., Claim No. 101872, UID #2004-010-012, where this
Court found in favor of the claimant because the evidence established that the
State had notice of a leaking soap dispenser and had failed to properly maintain
it, here the Court finds a lack of credible evidence to establish that the State
had notice of a faulty washing machine which leaked and posed a potential hazard
of a wet laundry room floor. The Court finds that the incident report dated
July 28, 2001, regarding an inmate slip and fall on water in the laundry room
(Ex. 11), is but one prior accident and was not sufficiently detailed to
establish that the source of the water was similar to that alleged by claimant.
In any event, proof of a “ ‘general awareness’ ” that a
dangerous condition may be present is legally insufficient to constitute
constructive notice of the particular condition that allegedly caused
plaintiff’s fall (see Gonzalez v Jenel Mgt. Corp., 11 AD3d
656, 656-57 [citing Piacquadio v Recine Realty Corp., 84 NY2d 967, 969]).
In sum, there is no basis, on the evidence presented, for finding that the floor
had been wet for an appreciable length of time prior to claimant’s
accident and that defendant failed to rectify such condition within a reasonable
time (see Puryear v New York City Hous. Auth., 255 AD2d 138, 139
[plaintiff failed to establish that particular puddle existed for sufficient
time to enable defendant to rectify]). Accordingly, claimant failed to
establish that defendant was negligent and that such negligence was a proximate
cause of her fall.
Claimant’s alternative theory of liability that the State failed to
provide a safe workplace is also unavailing. While the New York State Labor Law
provisions may be relevant in establishing a standard of care, the provisions
are not binding on the State with regard to inmate work duties and
responsibilities (D’Argenio v Village of Homer, 202 AD2d 883).
Rather, the State’s duty is to apprise inmates of any known dangers which
an inmate might not reasonably be expected to discover (see Felle v
W.W. Grainger, Inc., 302 AD2d 971). An inmate performing a work assignment
is responsible for the failure to use ordinary care (see Carter v
State of New York, 194 AD2d 967, supra).
Here, having been directed to obtain a mop for the purposes of addressing a
wet floor at an undisclosed location, claimant should have been using her senses
to anticipate the possibility of encountering a wet floor. Clearly,
claimant’s own negligence was the sole proximate cause of her fall.
Accordingly, Claim No. 107468 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 17, 2009
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
. All references to the trial transcript are
preceded by the letter “T.”
. At this point in the questioning, and in
apparent explanation of why she was not looking where she was walking, Claimant
“just remembered right now” (T:81) that another inmate was nearby
and that claimant was telling this unidentified inmate there was no mop in the
laundry room (T:78-80).