New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2009-029-028, Claim No. 111770


State not liable for inmate slip-and-fall accident caused by flooding resulting from leaky roof.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
KALMAN, KAUFMAN & ROSENBLATT, P.C.By: Harold J. Rosenblatt, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for an October 12, 2005 incident in which he slipped and fell at Fishkill Correctional Facility. He testified that he was escorted from his cell to the RMU (regional medical unit) building with a group of inmates that morning, all of whom were taking daily medical treatments. After receiving treatment, they were escorted back to the main building by a correction officer. They went up a flight of stairs and through a doorway. Claimant stated that after walking “a couple of feet” [1] past the doorway, he fell. He testified that he was not looking at the floor at the time – he was looking at the back of the head of the inmate in front of him – and did not know if the floor was wet, although after falling he noticed that his clothes were “a little wet.” He didn’t see water on the floor either before or after his fall, and did not see any signs warning of a wet floor.

George Smith was the correction officer escorting the group of approximately 25 inmates, including claimant, from the RMU to the mess hall on the morning in question. He testified that as the group arrived at a locked door, he would open the door, allow the group to pass through, and then lock the door. He opened the door at the bottom of the stairway leading to the I and J corridor and the inmates proceeded up the stairs, with claimant near the front of the line. Smith was waiting at the bottom of the staircase to lock the door when he heard claimant screaming, ran up the stairs and saw claimant lying on the wet floor. He did not recall seeing any water until he was standing over claimant and did not recall seeing any signs warning of a wet floor. A sergeant arrived and told Smith to take the other inmates to the mess hall, which he did. As he walked up the corridor leading to the mess hall, he saw water running down the corridor, along one wall.

Smith noted that the regular route leading from Buildings 21 and 21A to the mess hall was closed due to flooding through the roof and the fear that the roof would collapse. He stated that they had been using the I and J corridor to access the mess hall corridor for “a couple of days,” but he had not seen water there prior to the time claimant fell. According to Smith, the inmates who participated in the daily medical treatment were the last inmates to go to breakfast and all of the other inmates had been fed by the time he brought them to the mess hall.

Anthony Dolcemascolo was the officer in charge of housing block J on the morning in question. He testified he was in his office when he heard someone yelling in the corridor and he looked through the window and saw 15 to 20 inmates in the corridor with claimant on the floor. He went out into the corridor and observed a “streak of water” under claimant. He also recalled seeing two “wet floor” signs placed in the corridor, about six feet apart. According to the officer, the inmates housed in J block had already gone to their morning meal, using the mess hall corridor leading from the I and J corridor to the mess hall. In his memorandum written that day, Dolcemascolo wrote that the accident happened at about 7:30 a.m., that the floor appeared to be wet and that there were two “wet floor” signs in the area (Exhibit 2).

Sgt. Edward Medwick was on duty in the mess hall that morning when he heard a radio call about claimant’s accident and responded to the scene. As he walked down the mess hall corridor, he noticed that there was water in the corridor, coming from under the door to the bakery and running downhill towards the I and J corridor. He characterized the water as “not a lot.” He also noticed a few “wet floor” signs – one or two near where claimant fell and another two farther up the corridor towards the mess hall. Medwick remained at the scene for about six or seven minutes, during which time he arranged for claimant’s removal by stretcher (Exhibit 3) and directed Officer Cousin to take photographs (Exhibits 13 through 19). He noted that the water on the floor may have been cleaned by the porter pool before the photographs were taken and that the warning signs shown in the photographs were there when he responded to the scene. Cousin testified that he took the photos at about 8:10 a.m. and that there was no water on the floor when he got there.

Sgt. Medwick testified that as far as he could determine, the water in the corridor came primarily from under the bakery door, but it was possible that some may have come through the windows in the corridor. He recalled that there had been heavy rains the night before and that there was repair work being done on the facility’s roofs.

According to Medwick, about 200 inmates had been taken for breakfast that morning through the I and J corridor to the mess hall corridor to the mess hall prior to claimant’s accident at 7:30 a.m. That route had also been used by facility employees that morning on the way to their work stations. He testified that the officer in charge of the porter pool comes on duty at 6:15 a.m. but the porter pool does not start working until 8:00 a.m. unless there is an emergency. His opinion was that the water in the corridor that morning was “not that extreme” – not enough to close the corridor and not enough to be considered an emergency justifying calling out the porter pool early. Officer Paul Harrington, who was in charge of the porter pool that day, testified that when he arrived for duty he was not informed of any problem with water on the floor in the I and J or mess hall corridors. The porter pool did not do any work that morning prior to the subject incident and did not receive any instructions to clean water in the subject area prior to the incident.

Frederick Paige, the mess hall officer on October 12, 2005, testified that when he reported for work that morning he was told, in the watch commander’s office, that there was water on the floor in the kitchen and mess hall areas. At about 4:45 a.m., he arrived at his post and saw water on the floor in the kitchen and bakery. There was water on the bakery floor near the door leading to the mess hall corridor, running under the door and down the mess hall corridor along the wall. He did not see any “wet floor” signs at that time. He did not walk down the corridor, which was an area beyond his jurisdiction, and did not notify anyone of the water in the corridor. At about 4:45 a.m., he directed some inmates to clean the water off the bakery floor, using squeegees and buckets. Paige testified, as did the other witnesses at this trial, that inmates and officers used the mess hall corridor that day and that it was the only available access to the mess hall because the two other corridors had been closed due to flooding and safety concerns.

Roger Maines, the plant supervisor at Fishkill C.F., testified that a private contractor was in the process of repairing the roofs at Fishkill and that, due to the heavy rains, water was coming into the facility through the roof, into the kitchen, bakery and mess hall corridor. During the two days preceding the subject accident, he had seen water leaking through the ceilings and also saw inmates mopping up water and using buckets to catch the dripping water. He confirmed that the mess hall corridor was the sole remaining access to the mess hall.

The sole witness called by the defense was Albert Conklin, the plumber at Fishkill. Most of his testimony concerned work he had done unclogging drains in the kitchen, but it was clear that these drains were far from the mess hall corridor and had nothing to do with the water in the corridor on the day in question. He did note that the weather during this period was extremely inclement with torrential rain. He stated that the rain was coming down so hard that the facility was experiencing flooding in areas that had never flooded before.

The State of New York is not the insurer of the safety of inmates in its correctional facilities (Boettcher v State of New York, 256 AD2d 882; Bowers v State of New York, 241 AD2d 760; Condon v State of New York, 193 AD2d 874). Its duty is the same that is applicable to any other property owner: to use reasonable care to maintain its property in reasonably safe condition in view of all the relevant circumstances (Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). Here, there were essentially no factual disputes and the parties stipulated that there was water in the I and J and mess hall corridors, that the water likely came from the bakery, under the bakery door, down the mess hall corridor and into the I and J corridor, and that claimant slipped on the water in the I and J corridor. Even in the absence of such a stipulation, the trial record would not have rationally justified any contrary findings.

Nevertheless, the fact that claimant slipped and fell on water in the corridor does not require the conclusion that defendant fell short of its duty of reasonable care. As all of the judicial decisions discussing the law of negligence recognize, the concept of reasonable care necessarily involves consideration of all of the surrounding circumstances, and a finding of negligence – i.e., a finding that a party did not act reasonably – cannot be made without consideration of all such facts and circumstances (see e.g. Green v State of New York, 222 AD2d 553). There is no question that the correctional facility was experiencing continuing flooding problems due to leaks in the roof. The trial record indicates that defendant was taking action to repair the leaks, but that very heavy rains in the days preceding claimant’s accident created a situation where two out of the three corridors leading to the mess hall had to be closed because the areas were deemed unsafe by prison officials. The route taken by claimant provided the sole remaining access to the mess hall, and the officials at Fishkill had no choice but to utilize the I and J and mess hall corridors for this purpose.

The proof indicated that there were signs placed in the corridors warning of the wet floor, and the court so finds. Nevertheless, claimant’s testimony was that he was not looking at the floor as he walked but at the head of the inmate in front of him. Thus, the precise placement of these signs is not relevant to the issue of causation, since claimant did not see them and would not have seen them, regardless of where they were placed.

The sole arguable point in favor of a finding of negligence is that defendant could have had the area in question mopped prior to claimant’s fall that morning. The testimony was that the decision to do so – which would have been out of the ordinary routine at the facility – was not made because defendant’s employees did not feel that the condition of the corridor was sufficiently dangerous to warrant declaring an emergency. The fact that hundreds of inmates successfully traversed the route that morning prior to claimant’s fall militates against any judicial conclusion that the decisions made by defendant’s employees were not reasonable and constituted a departure from due care.

Thus, while there is no doubt that water caused claimant’s fall, the court is compelled to conclude that claimant failed in his burden to establish that his fall was caused by negligence on the part of defendant’s employees. Accordingly, the Clerk of the Court is directed to enter judgment dismissing the claim on the merits.

May 22, 2009
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the electronically recorded trial proceedings.