|Claimant short name:||WASHINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||MICHAEL WASHINGTON, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 16, 2019|
|See also (multicaptioned case)|
Michael Washington, an inmate proceeding pro se ("Washington" or "Claimant") has brought this claim against the defendant's agents ("Defendant" or "the State") alleging that he was injured due to Defendant's negligence when he slipped and fell as he stepped out of the shower on December 18, 2015 while he was incarcerated at the Sing Sing Correctional Facility ("Sing Sing"). A video trial of Washington's claim was held on October 22, 2019 with the parties appearing at Sing Sing and the Court sitting in New York, New York.
Washington's testimony and the trial evidence established that Washington slipped as he stepped over a ledge or lip between the tiled shower floor and on to the smooth concrete floor of the area immediately outside the shower. It was undisputed that Claimant fell backwards and that his back and head hit the floor. He was transported on a stretcher to the Sing Sing medical facility and then was taken by ambulance to Montefiore Mount Vernon Hospital. Washington testified that he had a back brace and walked with a cane for a period of time after the accident. He alleged back and neck pain which continue to the present.
Washington's claim asserted that his slip and fall was due to a "broken shower pipe" which caused water to accumulate on the floor outside the shower. He claimed that he and other inmates had complained to staff about the water accumulation prior to the accident. However, although his claim attached his and several other inmates' complaints as to the water accumulation in the shower area, all but one was dated prior to the incident in question.
With regard to the one other document alleged to constitute prior notice, Washington sought to enter into evidence an undated and unsigned memorandum from him to "Michael Capra: Supt. Sing Sing C.F." complaining of a myriad of issues ("Exhibit 1") and which he testified was submitted prior to the incident. The State objected and the Court reserved decision. The State's objection is hereby overruled and Exhibit 1 is admitted in evidence.
The State argued that Claimant had failed to establish a prima facie case. In so doing, the State contended that Washington had not complained about the condition of the shower area floors at any time preceding the fall. She also argued that a wet floor in the area of a shower is not an inherently dangerous condition, but, rather, should be anticipated.
As a landowner, the State has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 ). This duty applies to the State's responsibility for its correctional facilities (see Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]), and in that setting extends beyond the State's role as a property owner. "Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [them]" (Sanchez v State of New York, 99 NY2d 247, 252-253 ). That duty does not, however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable (Id., see Villar v Howard, 28 NY3d 74, 80 ).
"[I]n a slip and fall case, it is incumbent upon Claimant to establish that: (1) a dangerous condition existed; (2) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant" (Braithwaite v State of New York, 26 Misc 3d 1239[A] [Ct Cl 2009], citing Gordon v American Museum of Natural History, 67 NY2d 836, 837 ; see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]).
Although Exhibit 1 is in evidence, the Court finds that it did not constitute notice of the alleged wet floor condition. The portion of Exhibit 1 which addressed the shower area complained of broken windows, cold showers and that "the knob for the head has been missing for months" and that "its [sic] very dangerous to have to walk to and from the shower because of this." There is no mention of a broken pipe or of water accumulation. "[Even] if defendant had a general awareness that the bathroom floor became wet at times, this would not obviate claimant from the burden of establishing that defendant had actual or constructive notice of the particular condition which allegedly caused claimant's fall" (Rodriguez v State of New York UID No. 2018-054-059 [Ct Ct Cl, Rivera, J., June 6, 2018], citing Gonzalez v Jenel Mgt. Corp., 11 AD3d 656, 657 [2d Dept 2004]; McDuffie v Fleet Fin. Group, 269 AD2d 575 [2d Dept 2000]).
"The determination as to whether a condition is dangerous, requiring the landowner to then take remedial measures to correct the condition, depends upon the context or circumstances of each case" (Forbes v State of New York, UID No. 2013-009-041 [Ct Cl, Midey, J., Jan. 8, 2014]). "The mere presence of water on [the] floor adjacent to the gym's showers cannot impart liability, particularly since water was necessarily incidental to the use of the area" Noboa-Jaquez v. Town Sports Int'l, LLC, 138 AD3d 493 [1st Dept 2016), citing Dove v Manhattan Plaza Health Club, 113 AD3d 455, 455-456 [1st Dept 2014], lv denied 24 NY3d 901 ). "Nor...can liability be premised upon a lack of mats at the location of plaintiff's fall" (Noboa-Jaquez at 493, citing Jackson v State of New York, 51 AD3d 1251 [3d Dept 2008]; Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462, 465-466 [1st Dept 2009]; see Smart v State of New York, UID No. 2018-029-087 [Ct Cl Mignano, J., Sept. 13, 2018]). Claimant slipped on water he knew was present in the shower before entering and was aware he needed to be careful (see Barron v Eastern Athletic, Inc., 150 AD3d 654, 655 [2d Dept 2017]).
Based upon the foregoing, the Court finds that Claimant did not establish by the preponderance of the credible evidence that there was actual prior notice of the wet floor outside the shower or that it was an inherently dangerous condition so as to impose liability upon Defendant. Accordingly, the claim is dismissed without the necessity for the Court to consider the parties' remaining contentions.
Claim No 127729 is dismissed. All motions are denied as moot.
Let judgment be entered accordingly.
December 16, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims