EDWARDS v. THE STATE OF NEW YORK, #2009-030-001, Claim No. 113835
Claim dismissed after trial. Inmate claimant proceeding pro se failed to
establish that State should be held liable for wet conditions in shower area
where he slipped, fell and was injured. No evidence of water accumulation, soapy
condition, no prior complaints. Ventilation system in place. No indication of
what precautions might have rendered the area safer under the
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
THOMAS EDWARDS, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
January 12, 2009
See also (multicaptioned
Thomas Edwards, an inmate proceeding pro se, alleges in his written claim that
he slipped, fell and was injured on May 30, 2006, after taking a shower, because
defendant’s agents at Sing Sing Correctional Facility (Sing Sing) failed
to properly maintain the shower area by keeping the windows open to prevent
moisture accumulation, and failed to post warning signs regarding the wet floor.
Trial of the matter was held on December 16, 2008.
At the trial claimant testified that he was preparing to leave the bathhouse at
Sing Sing after showering, and had put his clothes on, when he slipped. As he
tried to regain his balance, he fell face forward on his front teeth on the
floor. An officer came and sent him to the infirmary, where he received
treatment. Medical personnel gave him a “temporary
on his front tooth, but no
permanent caps were directed. Mr. Edwards said he cannot bite anything, his
teeth are chipped, and the “only thing” he wants is to have his
teeth permanently capped. He said he has a temporary cap now on one (1) of his
front teeth - on the one that was “broken almost in half” - but the
other three are “just chipped.” He seeks damages in the amount of
Claimant testified that the bathhouse floor “never dries.” He said
“they claim that windows are adequate ventilation, but that is not
true.” Mr. Edwards explained that “the bathhouse is a large area
with shower stalls. At any given time there will be between 20 and 80 showers
going. There is no ventilation system, only windows. When it is cold out,
nobody wants to have the windows open while you are in the shower.
There’s no mats, and there’s really no area set aside for you to
dress where it is dry. The whole room is just one big wet mess. Some type of
tile is on the floor, and it is very slippery. If you are not very careful, you
can fall at any time. There are some elevated areas where you could stand up and
change and not be as wet, but once you step down you’re on the same wet
tile floor.” He reiterated that he fell when he was “coming out of
that area”. He was fully dressed with his sneakers on holding his bag of
Mr. Edwards filed a grievance regarding the incident. [Exhibit 1]. The
grievance requests that rubber mats be placed in the area, that a ventilation
system be installed, and that warning signs be posted. [Id.]. Claimant
also sought “complete dental care” and “$20,000.00 for
damages, pain and suffering.” [Id.]. An investigation report of the
grievance notes that the investigator spoke with the state shop supervisor and
learned that “small (1") mosaic tiles” covered the floor area of the
bathhouse, “adequate for walking without slipping” and that rubber
mats would present both a maintenance and security issue. [Id.]. Cleaning
of mats would be an issue, and “items could be hidden under the
mats.” [Id.]. The actual grievance decision, or any decision on
appeal, was not submitted.
On cross-examination Mr. Edwards indicated he had only been at Sing Sing
“for a couple of weeks” at the time of his fall. He was familiar
with the facility, however, having been previously incarcerated there in 1995
for six months, as well as between 2000 through 2004. He said that “the
bathhouse had actually gotten better since the last time” he was there.
Nonetheless, he said
“the floor was all wet. There was no way to walk around the water. When
you take a shower, you wear the shower shoes. Little plastic or rubber. They
[the shower shoes] may be more suited to that type of terrain than
When asked if he filed a grievance for dental care, he said “no”,
and that he was told that the only way he could get caps on his teeth would be
if he paid for them. He said he was told he would need to get a dentist who
could be approved to come into the facility, or if there was one
“outside” that was approved, he would need to pay for correction
officers to accompany him for security purposes. “This was the
A photocopy of a dental treatment record identified as that of claimant notes
the fall on May 30, 2006, and subsequent treatment, but is largely illegible.
[See Exhibit 3].
No other witnesses testified and no other relevant evidence was submitted on
claimant’s direct case.
Paul O’Brien, the maintenance supervisor at Sing Sing “for five or
six years”, testified briefly. He, too, described the bathhouse. He
“it is a big room . . . set of showers - doubles on the west side of the
building, on the east side the same but the first ten are automatic push
buttons, mostly all the other showers are mixed valves where you turn them on
and 20 showers come on.”
The floor surface of the bathhouse is all
“small, one-by-one or half-by-half tile . . . It’s a
non-ceramic, non-slip tile though I’m not sure if it’s a non-slip
tile . . . The bathhouse was done over a few years ago - about 5 or 6 maybe 7
years ago by outside contractors.”
When asked if there is a ventilation system, Mr. O’Brien said
“On the roof there is a big ventilation system that they turn on and it
takes the steam out. Can’t say whether it’s always on, it’s up
to the officer in charge to make sure it’s on.”
No other witnesses testified.
As the custodian of inmates the State is obligated to prevent foreseeable risks
of harm, but it is not the insurer of the safety of inmates. Its duty is to
exercise “reasonable care under the circumstances . . .” [Basso v
Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of
harm. For premises liability, a claimant must show that the State had actual or
constructive notice of a dangerous condition and failed to act reasonably to
remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837
(1986). The State has a duty to “ ‘act as a reasonable man in
maintaining property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to others, the seriousness of
the injury and the burden of avoiding the risk.’ ” Miller v
State of New York, 62 NY2d 506, 513, 478 NYS2d 829, 833 (1984); Preston v
State of New York, 59 NY2d 997, 998, 466 NYS2d 952 (1983).
Defendant is not, however, an insurer of the safety of its premises as noted
above. Negligence cannot be inferred solely from the happening of an accident.
See Killeen v State of New York, 66 NY2d 850, 851(1985). Proof of
“a ‘general awareness’ that a dangerous condition may be
present” is not sufficient to establish notice of the particular condition
causing a claimant to fall. Gonzalez v Jenel Mgt. Corp., 11 AD3d 656, 657
(2d Dept 2004).
Moreover, danger presented by a wet floor is “necessarily
incidental” to the use of showers [see Conroy v Saratoga Springs
, 259 App Div 365, 367 (3d Dept 1940), affd
284 NY 723
, thus the presence of a wet floor in
a bathhouse by itself does not constitute an unreasonably dangerous condition.
See also O’Neil v Holiday Health & Fitness Ctrs. of
, 5 AD3d 1009 (4th Dept 2004).
It is noted parenthetically, that “[a] warning sign is useless where the
danger warned against is known . . . (citations omitted).”
Herman v State of New York, 94 AD2d 161, 163-164 (2d Dept 1983),
affd 63 NY2d 822 (1984). There is no evidence in this record that the use
of signs would have prevented the claimant’s fall, given his familiarity
with the area.
It is the claimant’s burden to prove his case by a preponderance of the
credible evidence. As the trier of fact and law, charged with assessing the
credibility of the witnesses and evaluating the evidence, [see Raynor
v State of New York, 98 AD2d 865, 866 (3d Dept 1983)], the Court finds that
the defendant is not responsible for the claimant’s slip, fall and
resultant injury based upon consideration of the entire record. While claimant
presented as a generally credible witness, and the Court is sympathetic to his
concerns, simply because he slipped and fell in an area where wetness is
expected the State’s liability is not established.
There was no evidence of the degree of accumulation of water, or that any
unusual soapy condition was present that would add to any slipperiness in the
area. See O’Neil v Holiday Health & Fitness Ctrs. of
N.Y., supra. There was no showing that complaints had been made or
that there had been prior falls to establish notice or constructive notice.
See Jackson v State of New York, 51 AD3d 1251 (3d Dept 2008). A
ventilation system was in place, according to the evidence, and claimant himself
indicated that windows were left open. There was no evidence that the use of
mats was (or was not) required in the area of claimant’s fall, nor was
there any indication as to what reasonable precautions might have rendered the
area safer under the circumstances.
This is because
“[l]avatory room floors, where there are shower stalls and wash basins,
are wet by their very nature. That is a fact of life. In order to recover for
injuries sustained as a result of a slip and fall in such an area, a Claimant
must establish by credible proof that the lavatory room floor surface was not
simply wet, but unusually slippery . . . That, Claimant completely failed to
do. Further, Claimant presented no proof that there was an unusual water
accumulation on the floor of this particular lavatory at the time of his
accident and that the State had notice thereof (cf. VanStry v State of
New York, 104 AD2d 553; 86 NY Jur 2d, Premises Liability, §
424).” Figueroa v State of New York, UID # 2003-019-008, Claim No.
103392 (Lebous, J., September 29, 2003) quoting Cuevas v State of New
York , Claim No. 85501, Page 5 (Hanifin, J., January 13, 1997);
see also Price v State of New York, UID # 2007-040-015, Claim No.
108186 (McCarthy, J., March 19, 2007); Bargas v State of New York,
UID # 2007-031-501, Claim No. 103627 (Minarik, J., March 14, 2007); Crawford
v State of New York, UID # 2002-009-104, Claim No. 92395 (Midey, J., October
The conditions of the shower area on the day of Mr. Edwards’ accident
were “typical” ones, not otherwise remarkable or significant enough
to render the State liable for allowing an unreasonably dangerous condition to
exist that it had not taken steps to remedy. See Jackson v State of
New York, supra; Moore v State of New York, UID #
2004-018-330, Claim No. 103850 (Fitzpatrick, J., September 16, 2004).
Accordingly, upon review of all the evidence including listening to the
witnesses testify and observing their demeanor as they did so, the Court finds
claimant has not established by a preponderance of the evidence that the
bathhouse floor was maintained in an unreasonably dangerous fashion, or that if
a dangerous condition existed there, that it existed for such a period of time
that the defendant either knew or should have known of it, and taken steps to
cure it beyond steps already taken.
Claim number 113835 is dismissed.
Let judgment be entered accordingly.
January 12, 2009
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. All quotations are to audio recordings
unless otherwise indicated.
. “The existence of a wet spot on the
tile floor such as is described by plaintiff does not in and of itself establish
a cause of action even though plaintiff fell thereon. The court is presumed to
know what every one else knows that tile floors are more or less slippery and
that such a condition in a bath house is necessarily incidental to the use of
the bath. No attempt was made to prove how or by whom this wet spot was caused
or how long it had existed. It was not enough for plaintiff to show that the
floor was wet. The burden was on her to go further and show its presence under
circumstances sufficient to charge defendant with responsibility therefor. This
she failed to do.”