Property damage to property in cell after flooding event at correctional facility. Claim dismissed after trial. No basis for finding State negligent in repairing the flooding toilet or otherwise.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOSE RODRIGUEZ, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||September 9, 2010|
|See also (multicaptioned case)|
Jose Rodriguez alleges in his claim that a May 29, 2004 flooding event at Fishkill Correctional Facility [Fishkill] emanating from a defective toilet in the correction officers' bathroom on the 8-2 recreation unit caused damage to property in his cell. He asserts that he filed an institutional claim on June 1, 2004, that was thereafter assigned for investigation to Lieutenant Joseph Pataro, and that on July 7, 2004 his claim was denied. On August 20, 2004 claimant's superintendent's appeal was approved to the extent of offering claimant $4.22 compensation, representing food items, in full settlement of his claim for over $3,000.00 of allegedly damaged property including trial transcripts. Among the allegations are that correctional officials failed to adequately investigate the damage claim and deliberately underreported the damage to claimant's property.
Trial of the matter began on June 25, 2010, and continued on July 23, 2010. In addition to claimant, retired State employees Lieutenant Joseph Pataro and Sergeant Charles Rama testified.
Mr. Rodriguez testified that on May 29, 2004 at approximately 3:50 a.m., he was awakened by Correction Officer Peete, warning the inmates in the area that "we have a flood."(1) Mr. Rodriguez observed water "about 2½ inches deep", and as he put his feet down "they splashed." Property kept under the beds was removed to the top of the beds at the officers' instructions. He testified that food items were "completely destroyed", and "discarded" at that time. Other items, noted on his facility claim, [see Exhibit 8], were damaged. They included trial transcripts and legal work, family photographs, and three pairs of shoes. [See Ibid.].
A maintenance work order records work completed on May 26, 2004 in the "8-2 (rec)" officers' bathroom. [Exhibit 7]. It is reported in the work order that the individuals performing the work over a two hour period "replaced flushometer."(2) [Id.].
A memorandum recording the flooding event was written on May 29, 2004 by Correction Officer Peete to Sergeant Flynn. [Exhibit 5]. He reports that while he was "doing rounds" he saw
"water on the floor coming from 8-1 rec area. When opening 6-1 [housing unit] door to see where it's coming from, it appears to be 8-2 stairway. The bathroom toilet cap blowed off on 8-2 rec and water ran all over up stair and down stairs. The water came in three inmates room and C.O. office damage inmate Jose Rodriguez . . . Court trial transcript several pages, legal papers, criminal/civil several pages, personal shoes two pair, food items, personal letters and pictures."
Officer Peete's log entry records similar information. [See Exhibit 8].
Apparently, Correction Officer Chambers had flushed the toilet in the 8-2 rec at approximately 2:50 a.m., and "the pipe cap popped off causing a flood." [Exhibit C]. Officer Chambers reported that he notified his area supervisor, Sergeant Flynn, immediately. [Id.].
Sergeant Flynn then wrote a memorandum to Lieutenant Hobbs, saying he received a call from Correction Officer Chambers, notified the watch commander, and a plumber was dispatched to shut the water off. [Exhibit D]. Sergeant Flynn noted that when he
"arrived on the scene there was approximately 1½ inches of water on the floor. The water flooded portions of 10-2 and 6-2. Before the water could be shut off the flooding extend[ed] down the stairs from 8-2 to 8-1 flooding portions of 10-1, 6-1 and 8-1 recreation areas. Inmates from the affected housing units cleaned up the water. The leak was caused by a defective flush valve on the back of the officer bathroom toilet. The flush valve cap blew apart." [Id.].
After claimant filed a claim for damaged property, an investigation ensued, headed by Lieutenant Pataro. At the Lieutenant's instruction, Sergeant Rama met with claimant, examined the allegedly damaged property, and took photographs of same. [See Exhibits A and B]. Correction Officer Peete wrote an additional memorandum concerning the event, this time directed to Lieutenant Pataro [see Exhibit 6], and Sergeant Rama reported his investigation in a memorandum to Lieutenant Pataro dated June 21, 2004. [Exhibit 1].
On June 21, 2004 Sergeant Rama, who actually inspected the property claimant indicated was damaged, wrote that
"[t]he legal work papers had minor water damage, all paper[s] were readable and intact. Three pair of shoes that Rodriguez claimed were destroyed looked to be in good shape for shoes that were 12 to 18 years old. Photos of friends and family appeared to be in good shape with no water damage. Food items claimed were discarded at an earlier date by Rodriguez. Photos taken of all items are attached." [Exhibit 1].
Sergeant Rama testified at trial that "the shoes looked like someone had walked in the rain with them" and there was "minor water damage" to the trial transcripts. [T-17]. Asked to explain what he meant by "minor water damage", Sergeant Rama said "It's still legible. You can read it. It's still intact. It's one piece." [T-24]. He explained that the photographs he took at the time show this: "that's the purpose of the photos. The shoes could still be worn. The transcripts could still be used." [T-26-28]; [See Exhibits A and B].
In contrast, claimant said that the transcripts and the legal papers were "dirty and stinky" and could not be used. He also said the family photographs were stuck to each other and "wet and dirty." He said that the three pairs of shoes depicted in the photographs taken by Sergeant Rama were "discolored", having been "floating around in the water." All the property damaged, including the legal work, the shoes, and the photographs were thrown out after Sergeant Rama took the photographs, having remained in claimant's possession for the almost one (1) month period after the flood because of the pendency of the investigation.
The food items had been "discarded" immediately as they were "destroyed." These included banana nut cereal valued in his facility claim at $1.50, granola bars valued at $1.30 and oatmeal valued at $1.40. [Exhibit 8]. Two pairs of Pierre Cardin shoes, which he indicates were 12 years old, were purchased new for $110.00 each. [Ibid.]. He seeks reimbursement in the amount of $82.50 each for these. [Ibid.]. The third pair of shoes was 18 years old at the time of the loss, and purchased new for $95.00. [Ibid.]. He seeks reimbursement in the amount of $52.25 for these. [Ibid.].
In the documentation he submitted as part of his facility claim, Mr. Rodriguez also included correspondence from the court reporter from whom he originally purchased his trial transcript, noting that the total cost paid was $3,000.00 in 1994. [Exhibit 8]. Mr. Rodriguez also furnished a photocopy of a check in the amount of $3,000.00 made payable to the court reporter. [Ibid.].
Lieutenant Pataro's summary memorandum to the steward reviewing Mr. Rodriguez' claim, dated June 18, 2004(3) , reports that Sergeant Rama met with claimant and looked at the property. [Exhibit 2]. Lieutenant Pataro wrote that the officer
"found minor water damage to the legal papers but they were readable and intact. The family photos had no water damage and were in good shape and the shoes were also in good shape. The food items had been discarded at an [earlier] date.
I spoke to C.O. Wellington in the package room who checked the claimant's package room files and found the shoes weren't received legally.
Upon dated proof of purchase receipts the claim is valid for the food and invalid for everything else." [Id.].
Lieutenant Pataro testified:
"I looked at both reports [CO Peete's reports dated May 29 and June 22, 2004]. When I sent . . . Sergeant [Rama] down, the critical thing I wanted to know is - - it's obvious there's some sort of damage - - the degree and extent, and that was what I was concerned about. There definitely was a flood. It definitely ran into a number of inmates' rooms, and that's what we were looking at . . . [T]hat's why when I asked Sergeant Rama,...if the damage is extensive and it's destroyed, it's destroyed. If it's not, it's not. What have I got here? And he concluded he found minor water damage to the legal papers, but they were readable and intact. The family photos had no water damage and were in good shape. The shoes were also in good shape. The food items did get discarded at an earlier date." [T-77-78].
Thereafter, Mr. Rodriguez was offered reimbursement for the destroyed food items and nothing else. [Exhibit 8].
The exhaustion of his administrative remedies was conceded by the State, as was the fact of a flooding event.
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 (1984); Preston v State of New York, 59 NY2d 997, 998 (1983). The state is not an insurer. 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. Assuming that the State did not create the dangerous condition, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd, 64 NY2d 670 (1984). With respect to constructive notice, any "defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra, at 837.
Here, it appears obvious that while a repair to the bathroom toilet was attempted some three days before the flooding event, it was not particularly effective. Just because it was not effective, however, does not render the State liable in negligence . Green v New York City Hous. Auth., 82 AD2d 780 (1st Dept 1981), affd 55 NY2d 966 (1982); Murray v New York City Hous. Auth., 269 AD2d 288, 289 (1st Dept 2000). Whether it was some defect in manufacture or lack of care in installation, from the record here claimant has simply not shown that a failure to exercise due care occurred.
While it appears that the State voluntarily sought to reimburse those who suffered damage from the flooding event, this does not mean that the State was negligent. This would be the equivalent of finding liability merely because an accident occurs.
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, and upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the claimant failed to establish that defendant was negligent in the first instance, and is thus not responsible for the damage to his property.
In this regard, the court notes that when the flooding event occurred in the wee hours of the morning, officers alerted those affected to place their property out of harm's way, immediately tried to stop the flow of the water, and obtained the services of a plumber. Thereafter, upon investigation of the claimant's alleged damage there was a difference of opinion as to what level of damage was caused. Thus, even if the court were to assume that the State was negligent in either repairing the officers' toilet or in responding to the flooding as it occurred, the court credits Sergeant Rama's observations of the transcripts and other property with which he was presented by Mr. Rodriguez, and finds that at most there was minor water damage, and that the items could be utilized for their given purpose. This is borne out by the photographs the officer took at the time as well. [Exhibits A and B].
Based on the foregoing, Claim Number 110270 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are hereby denied.
Let Judgment be entered accordingly.
September 9, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Quotations are to trial notes or audio recordings or the trial transcript [T- ] unless otherwise indicated.
2. This is a device for flushing toilets utilizing pressure from the water supply system rather than the force of gravity to discharge water into the bowl, designed to use less water than conventional flush toilets.
3. The court does not ascribe any particular meaning to the fact that the date of Lieutenant Pataro's concluding memorandum to the Steward predates the memoranda submitted by CO Rama. [See Exhibits 2 and 1]. Lieutenant Pataro explained that he probably just dated the memorandum when he received the complaint or when he sent it out for investigation.