New York State Court of Claims

New York State Court of Claims
TORRES v. THE STATE OF NEW YORK, # 2020-029-003, Claim No. 127633


Pro se claim alleged claimant fell on the steps entering a building at Fishkill Correctional Facility and was injured. After a trial on liability, the court found the State not liable for negligence on the ground that claimant failed to establish there was a dangerous condition. The claim was dismissed.

Case information

UID: 2020-029-003
Claimant(s): HENRY TORRES
Claimant short name: TORRES
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended sua sponte to reflect the properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127633
Motion number(s):
Cross-motion number(s):
Claimant's attorney: SCHONBERG LAW OFFICES
By: Ryan Fagen, Esq.
By: Elizabeth A. Gavin, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 10, 2020
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim filed March 11, 2016 alleges that between 6:00 and 7:00 a.m. on December 31, 2015, claimant slipped on a wet stairway and was injured while he was an inmate at Fishkill Correctional Facility ("Fishkill"). A trial on the issue of liability only was held on September 4, 2019.

Claimant testified on his own behalf and called Correction Officers John Broas and Aaron Hernandez as witnesses. Defendant called Correction Officer Cheryl Davis, Nurse Practitioner Mahnaz Sullivan-Davachi, and Lieutenant Carlos Llorens as witnesses. Correction Officer Aaron Hernandez appeared as a mutual witness. Claimant admitted eleven exhibits, ten on stipulation: nine photographs taken in 2019 (Exhs. 2, 5-12); DOCCS Directive Number 2064 (Exh. 3); and one page of claimant's Ambulatory Health Record (Exh. 13). An Unusual Incident Report was admitted on stipulation as defense Exhibit A. The report was redacted to exclude injury information. Counsel submitted post-trial memoranda of law after completion of the trial transcript.

Claimant testified that he is out-of-custody and working in "roofing and gutters." He is a diabetic. At Fishkill he would go on a daily "insulin run" to the medical unit with other inmates in his housing unit at around 6:30-6:45 a.m., and on a second run in the afternoon. On December 31, 2015, it was not raining when they exited Building 21 to the outdoor walkway leading to the regional medical unit, but it appeared it had been earlier. They exited through the Delta door accompanied by Correction Officer ("C.O.") Hernandez. Claimant testified that Exhibit 9 was a fair and accurate depiction of the layout and position of the stairs and platform leading out of Building 21 on December 31, 2015, except he did not recall there being a railing on the right going up the steps to the exit. After receiving their insulin, claimant and the other inmates left the medical unit to return to their housing unit in Building 21 at about 7:00 a.m. On reaching the building, claimant fell down the steps inside the Delta door depicted in Exhibit 9 (T: 5-17).(2) Exhibit 10 is a close-up of the right side of the stairs leading out of the building. Exhibit 11 shows the hallway leading to the Delta checkpoint with a doorway on the left leading to stairs going up to the mess hall and down to the building exit. Exhibit 12 is an aerial view of the area. Claimant recognized Building 21, and the walkway to the medical unit (T: 13-17).

Claimant was the first person in line on reaching Building 21. He marked the photograph admitted as Exhibit 7 with an "X" depicting where he fell.(3) He fell down the steps after putting his right foot down and slipping on water. There was a railing on the right of the steps heading down, but claimant did not recall the railing on the left shown in the photograph. When he landed, he was in water and his clothes got wet and muddy (T: 21-25).

C.O. Davis, the officer at the checkpoint, came over and asked what happened. Claimant said he slipped. Other inmates helped him as he hopped back to the housing unit, where he told the correction officers what happened. His ankle was swollen and black and blue. He went to the front desk and said he needed to go to the medical unit, and he went between 8:00 and 9:00 a.m. Once there he told "Nurse G." what happened. He returned to the medical unit for the afternoon insulin run and was still limping. The same nurse told a second nurse and they performed an X-ray. His leg was broken (T: 26-28, 40-41).

There were no warning signs posted in the location where he fell. He had previously observed the area being wet, but he never discussed it with anyone. In response to the area being wet, they would have people clean it up and put up wet floor signs, which he had seen in that location before his fall (T: 26-27).

On cross-examination, claimant testified that the area where he fell is not well lit. He did not see water on the floor because it was dark (T: 41-45).

C.O. John Broas testified that he has worked at Fishkill for approximately 20 years (T: 49-50). He was shown Exhibit 6, a photograph of the stairway area leading down from the entrance to Building 21. C.O. Broas did not see any carpets, mats or runners, but he identified metal gratings for drainage that are located on the landing at the bottom of the first few steps (T: 59-60). During inclement weather people coming in from the walkway sometimes tracked precipitation past the doorway onto the landing. Prior to December 31, 2015, he saw more than five people slip, but nobody fell. Normally they put up two wet floor signs. During the winter a wet floor sign could be left up long-term (T:61-65). Correction Officers are bound by directives (T: 69).

Claimant completed direct examination by referring to Exhibit 3, Directive No. 4064. Section 2, titled "Safety Precautions," provides in relevant part: in subsection A, titled "Housing Units," "2. [. . .] Each entryway should have appropriate step-off mats to prevent slips and falls due to wet floors"; and in subsection I, titled "Miscellaneous," "12. Wet floors cause accidents. Do not allow water to accumulate on floors," and "13. Use 'wet floor' signs where procedures require damp mopping or wherever a wet floor condition exists" (T: 69-70).

On cross-examination, C.O. Broas testified that he is very familiar with the staircase where claimant fell. The stairs are a coarse concrete and the surface is rough. The gratings on the landing shown in Exhibit 9, and the railing to the right of the steps shown in Exhibit 10, have been there as long as he has been working at Fishkill. The gratings are there to drain water from outside (T: 71-74). The staircase area where claimant fell directly inside the door at Delta checkpoint is "pretty decently lit" (T: 74). The stairs can be slippery at times. He has seen people lose their footing and fall to the ground, but nobody falling down the stairs. He has not heard of anyone other than claimant being injured on the staircase (T: 77-78).

On redirect examination, C.O. Broas testified that on some of the occasions when he saw someone slip on the stairs, there was a wet floor sign there (T: 78).

C.O. Aaron Hernandez testified as a mutual witness. C.O. Hernandez was first assigned to work at Fishkill in January 2015. On December 31, 2015, he escorted inmates from Building 21 on their insulin run to the regional medical unit and back (T: 81-83). He performed an informal count of the inmates as they entered Building 21. He saw claimant walk past him. "A couple of the guys were walking slow, and [. . .] claimant turned around, and he was like, you guys are taking a long time, and the next thing you know, he tripped down the stairs and fell" (T: 88-89). He does not know what caused claimant to fall, and he does not recall there being water. He does not know if claimant slipped on water. It is possible for the area shown in Exhibit 9 to be wet because there is a lot of traffic (T: 89-90). On any given day, anywhere from 15 "to almost 2,000 inmates" walk through the entrance door to Building 21 shown in Exhibit 9 (T: 92).

On cross-examination, C.O. Hernandez testified that on December 31, 2015, the staircase inside from the Delta door was lit, so water would be visible on the stairs. There was no mud and he does not recall that claimant's clothes were wet and muddy after the fall. He recalls claimant limping but not that another inmate helped him walk back to his housing unit (T: 95-97). C.O. Hernandez would remember an inmate physically supporting another inmate, and if an inmate "needed help to walk back to his unit, he would have to go to the RMU [regional medical unit]" (T: 97). He offered claimant medical attention multiple times (T: 97-98).

C.O. Cheryl Davis testified for the defendant. She has been working as a C.O. at Fishkill for five years. On December 31, 2015, she was working at the Delta checkpoint desk when she overheard inmates laughing in the stairwell and went to investigate. She saw claimant standing and learned he had fallen. She did not see water or mud on his clothing. She asked him if he wanted to go to medical and he refused. She inspected the area where he fell, which was "pretty well lit," and she did not see water on the stairs or the platform, or anything "out of the ordinary." She would have been able to see water if there was any. If it had been raining "you would see a trail following all of the inmates that had came in before him" (T: 103-107).

Mahnaz Sullivan-Davachi testified that she has worked at Fishkill as a nurse practitioner for 16 years. She wrote the notes on claimant's Ambulatory Health Record (Exh. 13) on December 31, 2015. She saw claimant on that date (T: 124-125).

On cross-examination, she read a portion of her notes in Exhibit 13 for the record: "He states slipped on stairs, told officers, but did not come to RMU until around 7 a.m."; and "States he slipped and fell down the stairs this Am, but did not report until at insulin line" (T: 127-128).

Lieutenant Carlos Llorens testified that he has worked at Fishkill for approximately 29 years, as a C.O., a Sergeant, and now a Lieutenant. His job duties as a Sergeant included supervising officers, resolving inmate problems, investigating injuries and other incidents. He was also responsible for the safety and security of staff, inmates and others at the facility. As a Lieutenant, he is also responsible for safety and security. He is familiar with the security policies at Fishkill. He is not aware of any policy at Fishkill "that requires a mat to be placed inside a door from the outside world." He reviewed Directive 4064 on safety and did not see any such requirement (T: 133-137; see Exh. 3 [Directive 4064]).

He was a Sergeant when he investigated claimant's December 31, 2015 accident. Claimant said he had been talking to other inmates, wishing them happy New Year, when he fell down the stairs. Lt. Llorens wrote an Accident Injury Investigation Report. The Report states what claimant told Lt. Llorens, "Inmate was walking into the building, distracted, talking to other inmates, and missed some steps at the entrance, falling on his left knee and injuring his left leg" (T: 133-136).

On cross-examination, Lt. Llorens testified that only Lieutenants prepare Unusual Incident Reports ("UIR") that go to Albany. Sergeants contribute to UIRs. Lt. Llorens identified Exhibit A as the UIR summarizing the investigation into claimant's accident, which is referred to as a slip and fall.(4) The witness explained that "slip and fall" is one of the "few options" given on the computer for an accident. The UIR contained the summary of claimant's accident written by Lt. Scalamandre: "Slipped and fell down four stairs while entering 21 Building" (T: 140-145). In the "Accident/Injury Investigation Report" Lt. Llorens prepared as a Sergeant in 2015, there are several options to choose from for identifying the cause of the accident. He checked the box for "gross negligence." He did not check the box for "distracting activities such as teasing, horseplay, etc." because he "didn't have any evidence that indicated [. . .] teasing or horseplay." He was previously unfamiliar with Directive 4064 on safety (T: 146-151).

On redirect examination, Lt. Llorens testified that the mat requirement contained in Directive 4064 is under the section for housing units. The requirement does not apply to the stairway from Delta door into the facility for Building 21 because that area is not in a housing unit. In the report he prepared in 2015, there is no option for "tripped and fell" as the cause of an accident among the options provided (T:160-163).

On recross-examination, Lt. Llorens testified that a "trip and fall" would also come under the category "slip and fall" (T: 166).

To prove the State's liability for negligence, claimant was required to present prima facie evidence that the State owed him a duty, breached that duty, and in doing so proximately caused him injuries (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). The State's duty here arises from its proprietary status as a property owner, and from its complete control over the inmates in its custody. 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 [1976]). 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 [2002]). 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 [2016] [finding facility need not foresee specific harm]). "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Claimant need not demonstrate that "the precise manner in which the accident happened, or the extent of injuries, was foreseeable" (id.; see Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986]).

Regardless of whether claimant slipped or tripped, this is a "slip and fall" case for purposes of the controlling law, as well as the descriptive options provided by DOCCS on required administrative forms. In 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 [1986]; see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]).

Claimant's several theories of liability are all premised on the existence of a dangerous condition, in the form of wet and slippery floors and steps, that defendant failed to remedy or to warn the inmates was present. Other than claimant's testimony, which the court finds was not credible, claimant presented no evidence at trial that the landing or steps where he fell were wet, or even that it was wet outside.

Although claimant testified that he saw puddles outside, and after he fell his clothes were wet and muddy, C.O. Hernandez, testifying for claimant, did not recall the area being wet or that claimant's clothes were wet and muddy. There is also no reference to water or wet conditions by the RMU nurse in her notes on claimant's Ambulatory Health Record, only to claimant's statement that he slipped and fell (see Exh. 13). Moreover, claimant's witnesses and exhibits contradict his additional testimony that: the stairway was dark; other inmates supported and helped him back to his housing unit; and he went to the RMU both after visiting the Delta checkpoint desk to complain about his leg, and later that day on the afternoon insulin run. C.O. Hernandez testified that the stairway was "lighted" and he would have seen water on the steps, and if an inmate needs help returning to his housing unit, he would be sent to the RMU. C.O. Broas corroborated C.O. Hernandez by testifying that the staircase was "decently lit." As for claimant's post-accident visits to the RMU, the nurses notes show only the one visit at 3:00 p.m.

Claimant's lack of credibility became even more apparent during the State's case. C.O. Davis, who was working at the Delta checkpoint desk that morning, observed claimant shortly after he fell and she inspected the stairway area. She did not see water anywhere or that claimant's clothes were wet and muddy. Then there is the UIR (Exh. A) and attached Accident/Injury Investigation Report and other attachments, which do not contain a single reference to the steps or area having been wet or slippery. Rather, several documents contain summaries by Lt. Llorens (then Sgt.) of claimant's statement that he became distracted talking to inmates and missed several steps (see Exh. A at pg. 5 [12/31/15 Memorandum to Superintendent], and pg. 12 [Accident/Injury Investig. Report]). There is also a memorandum from C.O. Hernandez to then Sgt. Llorens stating that right after the accident he went with claimant and the other inmates "to chow."

The court credits the testimony of these State correctional employees. They were not hesitant to acknowledge that the entrance to Building 21 and the stairway could become wet and slippery because of outdoor precipitation and extensive foot traffic. Claimant simply failed to establish this was the case on the day he fell down the stairs. Without proof that claimant fell down the stairs because of a "dangerous condition," the issues of notice, failure to remedy, and whether the facility safety Directive 4064 requires mats be put down inside the entrance to Building 21, are moot.

After observing and listening to the witnesses, reviewing the exhibits, and reading the post-trial memorandas of law, the court finds that claimant failed to establish a prima facie case of negligence. Accordingly, the court finds defendant not liable for negligence and dismisses Claim No. 127633.

Any motions not previously decided are denied as moot.

The Chief Clerk is directed to enter judgment accordingly.

January 10, 2020

White Plains, New York


Judge of the Court of Claims

2. "(T: #)" refers to the relevant page(s) of the trial transcript.

3. The "X" is at the top of the second set of steps after entering Building 21.

4. The "Accident/Injury Investigation Report" Lt. Llorens testified he prepared is attached as Page 012 to Exhibit A.