Claim alleging injuries as the result of a slip-and-fall accident in a prison bathroom was dismissed following trial. Claimant failed to establish that an ongoing slippery condition in the bathroom was the cause of his fall.
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Gullo & Associates, LLP
By: Dominick Gullo, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 7, 2010|
|See also (multicaptioned case)|
Claimant seeks damages for injuries allegedly sustained in a slip and fall on water in the bathroom of Wallkill Correctional Facility (Wallkill) on June 29, 2007. The claim proceeded to trial on the issue of liability on December 10, 2009.
The claimant testified that he currently resides at Wallkill where he is serving a 3½- to 7- year sentence for burglary. He first arrived at Wallkill in February 2007 and was housed in a five person cell for approximately two weeks. He was then transferred to a dormitory facility referred to at trial as C-3 (C side/third floor). At or about the time the claimant was transferred to C-3, the C-side bathrooms were closed for remodeling and inmates housed on the C side of the dormitory were required to use the recently renovated D-side bathroom. He described the D-side bathroom as containing three showers and four sinks on the left side as one enters the bathroom and toilet facilities and an additional four sinks on the right side.
At approximately 7:30 p.m. on June 29, 2007 the claimant went to the D-side bathroom to shower. As he entered the bathroom three inmates were using the available showers, two inmates were waiting in line for the showers and other inmates were using the toilets and sinks. He testified that it was not unusual to wait in line for the shower because the three D-side shower stalls serviced a total of 100 inmates, 50 inmates residing on the C side of the dormitory and 50 inmates residing on the D side. According to the claimant, while each of the stalls was equipped with a drain, there was no drain in the floor outside the shower stalls. As a result, water accumulated on the floor outside the shower area. The witness testified that on the evening of June 29, 2007 the sinks and toilets in the D-side bathroom had overflowed resulting in approximately one inch of water accumulating on the floor outside the shower stalls.
The claimant testified that he completed showering and stepped out of the shower stall onto a black rubber mat located immediately outside the stall to dress. The mat was equipped with suction cups designed to keep it in a stationary position. After stepping on the mat the claimant lifted his right leg to put on his sweat pants. The mat moved and the claimant fell, striking the back of his hand and the side of his head on the floor. He testified that he momentarily lost consciousness and, when he awoke, he observed an inmate, Angel Delgado, standing over him. At the time claimant was lying in what he described as "dirty" and "disgusting" water which had accumulated outside the shower stall. Inmate Delgado assisted the claimant in standing and the claimant then informed a nearby correction officer that he had fallen and been injured.
Claimant testified that the floor outside the shower stalls in the D-side bathroom were "like marble which became very slippery when wet because they were so smooth". He testified that prior to the date of his accident he had complained to the Chairman of the Inmate Liaison Committee regarding the slippery condition of the D-3 bathroom floor. He described the Inmate Liaison Committee as a group composed of inmate representatives and members of the facility staff which meets monthly to discuss issues of mutual concern. Claimant testified that the slippery condition of the D-3 bathroom floor was discussed at the Liaison Committee meetings which he attended on March 21, 2007 and May 16, 2007. With regard to the condition of the floor on the evening of June 29, 2007, the claimant testified that the water had "built up more than any other time" and was "worser [sic] than any particular day". Again, claimant testified the depth of the water outside the shower stall was approximately one inch at the time he slipped and fell.
On cross-examination the claimant testified there were bathrooms on both the C and D sides of each of the three floors of the dormitory in which he was housed. He stated that at approximately 7:30 p.m. on June 29, 2007 he entered the third floor D-side bathroom. Other inmates were using the showers at the time and the claimant was required to wait approximately ten minutes until a shower became available. During this time he was able to observe the floor outside the shower area. When asked by defense counsel whether he observed one inch of water on the floor prior to entering the shower, as he had previously testified on direct examination, claimant stated it was his testimony that one-half inch of water was on the floor outside the shower at the time he slipped. When asked whether he observed one-half inch of water on the floor prior to entering the shower, the claimant replied "well yes, there was a lot of water on the floor". Responding to questions from the Court the claimant testified that, in fact, there was one-half inch of water on the floor at the time he slipped and fell, rather than the one inch of water he testified to on direct.
Claimant entered the shower wearing flip-flops and exited approximately five minutes later, stepping out of the shower and onto a one-inch-thick rubber mat. Claimant removed the flip-flop he was wearing on his right foot and lifted his right leg to begin putting on his sweat pants. It was at this time that "the mat moved" and the claimant fell to the ground. Following the incident he walked to the "bubble" where he informed the correction officer manning the post that he had fallen in the shower area. Claimant was taken to the infirmary where he provided a statement to a nurse as she prepared an inmate injury report (Exhibit A). Claimant confirmed at trial that he provided the following statement which was entered in the top portion of Exhibit A, which he signed:
"What was inmate doing when injured?
I was getting out of the shower, and putting my pant on and sliped [sic]. I hit my head (left side) on the floor. My foot got caught in my pant leg.
I sliped [sic] because my foot got caught in my pant and I hit the floor hard."
Although claimant testified that he made complaints and filed grievances regarding the condition of the D-3 bathroom prior to June 29, 2007, he agreed that he had previously testified at his examination before trial that he had filed no such complaints prior to June 2007 (see Exhibit E, p. 42, lines 10-18).
On redirect examination claimant testified that while he had not complained formally to prison authorities regarding the condition of the D-3 bathroom prior to June 29, 2007, he had complained to representatives of the Inmate Liaison Committee between March and June 2007. Despite having confirmed the accuracy of his statement on the inmate injury report, which attributed his accident to his foot becoming caught in his pants leg, claimant testified that, in fact, he was caused to fall when the rubber mat moved as a result of the water accumulation in front of the shower.
The claimant called Angel Delgado. Mr. Delgado testified that he resided at Wallkill Correctional Facility between August 2004 and April 2009. On June 29, 2007 he was housed in a cell on "C/D-3". At approximately 7:30 p.m. he was in the D-3 bathroom preparing to use the showers. He described the D-3 bathroom floor as composed of "ceramic" or "marble type" material which became "very slippery" when wet. He related that the third floor C-side bathroom was closed for construction during 2007 and that many C-side inmates used the D-side shower area as a result. Mr. Delgado testified that during the period from March 2007 through June 29, 2007 the D-side bathroom floors were consistently wet as a result of puddles forming near the slop sink and water escaping the shower stalls through an open area at the bottom of the shower stall curtains. The witness testified that he observed standing water on the floor outside the shower area on the evening of June 29, 2007. On that evening Mr. Delgado witnessed the claimant step out of the shower and fall to the floor.
On cross-examination the witness testified that the shower curtains installed in the D-3 bathroom showers in June 2007 did not extend all the way to the floor of the shower stalls. According to Mr. Delgado water from the shower would escape the shower stall through an open area between the bottom of the shower curtain and a four-inch/five-inch threshold or "little wall", falling on the bathroom floor.
The witness testified there were no mats outside the shower stalls on the date of claimant's accident and he could not recall if the claimant was in the process of putting on his sweat pants at the time he was injured. Mr. Delgado testified that the claimant fell "as soon as he stepped out" of the shower. He could not recall how much water was on the floor outside the shower stall at the time claimant fell but stated it was "enough for someone to slip [and] really hurt themselves". The witness again testified that there were no mats on the floor outside the shower stalls of the D-3 bathroom at the time claimant fell.
The claimant rested his case at the conclusion of Mr. Delgado's testimony and the defendant moved to dismiss the claim for failure to state a prima facie case. The Court reserved on the motion.
The defendant called Correction Officer Skyler Newvine to the stand. Officer Newvine testified that he was employed at Wallkill for a period of three years, including from December 2006 through November 2007, during which time his assigned post was "C/D-3". As part of his regular duties, Officer Newvine made rounds of both the C-3 and D-3 galleries every half hour. His rounds included inspection of the bathroom on each gallery to insure that inmates were not "lounging around" in the bathrooms or otherwise failing to follow facility rules.
The witness was at his post on the C/D-3 gallery on the evening of June 29, 2007. He performed his rounds every half hour and could not recall at trial having observed water accumulated on the floor of the D-3 bathroom. He testified that he inspected the bathroom floors during each of his rounds and that, in the event accumulated water was observed, an inmate porter would be instructed to address the matter.
Correction Officer Newvine testified the D-3 bathroom was cleaned by inmate porters three times each day; in the morning, afternoon and each evening between 6:00 and 8:00 p.m. He also testified that he has never observed rubber mats on the floor in front of the shower stalls in the D-3 bathroom. Officer Newvine authored Exhibit B, a to/from memo to Sergeant Byrne informing him the claimant had reported falling in the shower.
On cross-examination the witness confirmed that he did not observe the claimant slip and fall in the D-3 bathroom. He could not recall whether the C-3 bathroom was open and/or operational during the period from March 2007 through June 29, 2007. He testified that his rounds encompassed both the C and D sides of the third-floor dormitory and that he checked the bathrooms on each side, both for inmates "hanging out" and to monitor conditions in the bathroom, including any water accumulated on the floor. The witness did not recall observing water on the D-3 bathroom floor during his 7:00 p.m. - 7:30 p.m. inspection on the date of claimant's accident. He did, however, state that in his experience the floor of the D-3 bathroom becomes slippery when wet.
The defendant rested its case following Correction Officer Newvine's testimony and the claimant moved for a directed verdict.
The Court concludes the claimant failed to establish by a preponderance of the credible evidence that defendant's negligence was a proximate cause of his injury. The sole evidence that claimant slipped and fell as the result of an accumulation of water on the floor of the D-3 bathroom shower area was his trial testimony. However, he confirmed at trial the accuracy of the statement contained in Exhibit A, the Inmate Injury Report prepared following the incident, which clearly states "I sliped [sic] because my foot got caught in my pant". When given the opportunity on redirect examination to reconcile these two divergent versions of the accident, claimant wholly failed to do so. Other inconsistencies not resolved at trial include the actual depth of the water which had accumulated on the bathroom floor and whether rubber mats were in place outside the shower stall used by the claimant. While claimant clearly testified during his direct examination that there was one inch of water on the floor at the time he allegedly slipped and fell, he testified on cross-examination that, in fact, the water was one-half inch deep. Angel Delgado testified there were no mats outside the shower stall on the date of claimant's accident and Correction Officer Newvine testified he never observed rubber mats on the floor of the D-3 bathroom shower area.
Finally, claimant failed to provide the requisite proof to establish notice to prison officials of an ongoing dangerous condition in the newly renovated D-3 shower area. Claimant's testimony that he reported water accumulating on the floor of the shower area to an unidentified member of the Inmate Liaison Committee is insufficient for this purpose. Although all of the witnesses testified that the tile floor in the D-3 bathroom becomes slippery when wet, this fact alone provides no basis for liability (see Murphy v Conner, 84 NY2d 969, 971-972 ; Henness v Lusins, 229 AD2d 873 ; Van Alstyne v Fonda Refm. Church, 224 AD2d 901, 902 ).
In the Court's view, claimant failed to establish he was injured as a result of the movement of a rubber mat caused by an accumulation of water on the floor of the D-3 bathroom. Rather, the Court finds his statement in the Inmate Injury Report, which attributes his fall to his foot becoming stuck in his pant leg, to be the most reliable description of the injury-causing event. Furthermore, the proof offered at trial with regard to notice to prison authorities of a recurrent dangerous condition in the D-3 bathroom was wholly inadequate to sustain a finding of liability even if the version of events described by the claimant at trial were accepted as true. Accordingly, the claim is dismissed. Any and all motions on which the Court previously reserved decision and which were not specifically addressed herein are denied.
Let judgment be entered accordingly.
June 7, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims