New York State Court of Claims

New York State Court of Claims

HARRISON v. THE STATE OF NEW YORK, #2009-041-507, Claim No. 112156


Claim alleging that defendant’s lack of supervision over inmate work crew caused claimant to slip on newly waxed floor is dismissed where proof indicates that claimant was aware of condition of floor prior to incident and that defendant neither created nor was aware of the alleged condition .

Case Information

1 1.The Court has sua sponte amended the caption to reflect the properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Michele M. Walls, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 15, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The claim arose at Clinton Correctional Facility (Clinton) and was tried there on May 1, 2009. The claim alleges that on October 26, 2005, claimant slipped and fell due to a "wet floor sealer" while on a work detail. In particular, claimant states that he entered a bathroom to “provide cleaning services” and, while claimant was working inside the bathroom, fellow inmates applied a floor sealer outside the bathroom and did not place any safety devices, such as signs or cones, to warn persons of the wet floor sealer. Claimant allegedly slipped upon exiting the bathroom and hurt his back.

The claim alleges that the incident was caused by the failure of a civilian supervisor employed by defendant “to perform his lawful duty to provide supervision to his assigned inmates in violation of DOCS rules and regulations, resulting in said inmates [sic] failure to comply with proper safety procedures.”

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 his claim that defendant was negligent, 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]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see, Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

Claimant testified that he and several fellow inmates were instructed by their civilian supervisor to proceed to the Clinton Annex to perform cleaning and custodial services. The procedure for inmate work details assigned to the Clinton Annex did not include having the civilian supervisor accompany and directly observe and supervise the inmate workers. Claimant and a fellow inmate were instructed to clean and disinfect the bathroom areas and another, more experienced, crew was to strip, wax and seal the floors. Claimant stated that usually the crew could complete the custodial work prior to the 12:00 p.m. “count” of inmates, after which the crew would leave the Clinton Annex and return to their dorm at Clinton. Claimant testified, however, that sometimes members of the custodial crew would delay the work in order to get “caught in the count” and thus be able to share meals cooked by “friends” at the Clinton Annex.

While claimant and his fellow inmate were inside the bathroom cleaning and disinfecting, the stripping and waxing crew “put the sealer and wax and all that outside the bathroom to keep us up in there so we could stay longer to get caught up in the count.” Claimant states that he then held the bathroom door open for his fellow inmate to exit the bathroom with a piece of equipment and then exited the bathroom himself, slipping and falling after proceeding five or six feet.

Claimant did not produce as witnesses any of his fellow inmates on the work crew on the day of the incident. Importantly, claimant did not produce as a witness the inmate specifically working with him that day and who allegedly preceded claimant in walking out of the bathroom and onto the floor.

The only witness produced by claimant was the Clinton superintendent who testified that he had no recollection of claimant slipping and falling on the date and time alleged by claimant. The superintendent further testified that he was not aware of any facility rules or regulations which required the civilian supervisor to directly observe and supervise inmates performing custodial services at the Clinton Annex.

Claimant introduced four exhibits at trial: A Department of Correctional Services (DOCS) memorandum regarding a grievance claimant filed which alleged that claimant was denied medical treatment; a copy of the medical treatment grievance; a copy of the claim and a copy of the DOCS Log Sheet for the day, time and location of the alleged incident. The grievance documents offer claimant no assistance since the claim made no allegation of negligent medical treatment. The DOCS Log Sheet makes no mention of claimant slipping and falling on the date and time testified to by claimant.

The only exhibit introduced by the defendant showed that claimant did not seek medical treatment until more than three hours after he allegedly fell.

Most significantly, claimant’s trial testimony demonstrates that the allegedly dangerous condition was not caused by any negligence of the defendant but was instead caused by the actions of the claimant and his fellow inmates. The stripping and waxing crew, by claimant’s own testimony, intentionally stripped, waxed and sealed the floor outside the bathroom so that claimant and his fellow inmate would be unable to exit the bathroom: The stripping and waxing crew “put the sealer and wax and all that outside the bathroom to keep us up in there so we could stay longer to get caught up in the count.”

Claimant’s testimony further reveals that claimant was aware that his fellow inmates had waxed the floor outside the bathroom while claimant was inside since there would be no reason for claimant and his fellow inmate to delay exiting the bathroom unless they knew of the actions of the stripping and waxing crew.

The proof shows that, assuming claimant even fell at all, the condition was caused by claimant’s fellow inmates without any negligence on the part of defendant and that claimant knew the condition of the floor outside the bathroom prior to walking upon it.

In sum, claimant has not proven that defendant created the allegedly dangerous condition nor has he shown that defendant had either actual or constructive notice of the condition.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

June 15, 2009
Albany, New York

Judge of the Court of Claims