|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez Summa|
|Claimant's attorney:||Johnny Gonzalez, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 19, 2018|
|See also (multicaptioned case)|
Johnny Gonzalez, a pro se inmate, filed a claim on December 15, 2014 in which he alleged that defendant, the State of New York through its agents, caused him to slip, fall and injure himself while he was an inmate at Downstate Correctional Facility.
A trial of this claim was held by video conference on August 2, 2018. At trial, the claim with attached exhibits was moved into evidence. Claimant testified that on June 5, 2014, he was ordered to take a shower by a correction officer. He explained that there were no mats in the shower and that he did not have shower slippers. Claimant stated that he went into the shower and there was a plastic garbage bag on the floor for the inmates to stand on while they showered. Claimant testified that he was the sixth person to take a shower and at the time of his shower, the plastic bag was wet with soap. Once he had finished his shower, he opened the shower curtain to step out and he slipped and fell. After his fall, he was taken to the hospital and described his injuries as a knot on the back of his head, bruises on his back and bulging discs. He testified that he walked with a cane for 3.5 months and he is unable to do physical therapy because of his back.
Claimant's inmate injury report, admitted into evidence as defendant's Exhibit A, indicates that claimant slipped and fell while getting out of the shower and that a correction officer put the bag in front of the shower. However, claimant refused to sign the injury report. The report sets forth that no bruising or swelling was noted and that a neck collar was utilized. Claimant was transported to the emergency room and admitted to Downstate Hospital. He was later transferred to Putnam Hospital.
Correction Officer K. Shomala testified on behalf of defendant that she was the correction officer on the block at the time of the accident and was informed by another inmate of claimant's accident. In response she contacted the nurse and her area Sergeant to escort claimant to the medical office. She explained that she did not witness the accident because she is not permitted to monitor or watch male inmates take showers. She also explained that it is impermissible to put plastic bags down on the floor of the shower but that some inmates do it anyway. She testified that she did not tell anyone to put a bag on the floor and that she did not know how that plastic bag got in the shower.
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 ; Preston v State of New York, 59 NY2d 997 ). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). This duty extends to the State's correctional facilities (see, Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003].
"To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]). Whether or not a dangerous or defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976, 977 ). The width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (id. at 978).
Claimant has established that the placement of a plastic garbage bag in the shower area constitutes a dangerous condition. However, claimant has failed to establish that defendant had actual or constructive notice of the plastic garbage bag. There was no evidence establishing who placed the garbage bag on the shower floor. The credible evidence does not support a conclusion that the State had knowledge of the plastic garbage bag on the shower floor prior to the accident so as to establish constructive notice.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant. Accordingly the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
November 19, 2018
Hauppauge, New York
Gina M. Lopez Summa
Judge of the Court of Claims