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
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
). 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 ; Condon v
State of New York, 193 AD2d 874 ). 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 ; Mercer v City of New
York, 223 AD2d 688 , affd 88 NY2d 955 ).
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 ;
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
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
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.