Opinion
# 2014-015-584 Claim No. 121677
06-18-2014
ROLAND CHISHOLM a/k/a RONALD CHISHOLM v. THE STATE OF NEW YORK
Robert G. Spevack, Esquire Honorable Eric T. Schneiderman, Attorney General By: Jessica Hall, Esquire Assistant Attorney General
Synopsis
Interlocutory judgment on liability granted following trial. Defendant was negligent in failing to remove a broken chair from the transitional services room of Wallkill Correctional Facility.
Case information
| UID: | 2014-015-584 |
| Claimant(s): | ROLAND CHISHOLM a/k/a RONALD CHISHOLM |
| Claimant short name: | CHISHOLM |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121677 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Robert G. Spevack, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Jessica Hall, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 18, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant was allegedly injured on July 6, 2012 while an inmate at Wallkill Correctional Facility (Wallkill).
Claimant testified that at the time he was injured he was enrolled in the PACE (Prisoners for AIDS Counseling and Education) program, a 16-week peer training program run by inmates which was held every Tuesday and Friday evenings in the facility's transitional services room. During daytime hours, the same room was used to conduct ASAT (Alcohol and Substance Abuse Treatment Program), which was run by Eileen D'Angelo, an employee of Wallkill. Claimant testified that he entered the transitional services room at approximately 5:45 p.m. and sat in a cushioned chair, situated to the right of the door, which was one of approximately 20 to 25 chairs that had been arranged in a circle. Claimant described the accident as follows: "As soon as I sat in the chair, the whole chair gave way. It's like it slipped from under me, like my back. I was falling backwards with my legs in the air" (Tr. 36). He testified that his head struck both the wall and the floor as he fell and denied he was leaning back in the chair or otherwise "horsing around" (Tr. 40). Claimant, who weighed 208 lbs at the time of the accident, testified he did not notice anything wrong with the chair before he sat down and that following the chair's collapse he observed that the back of the chair was bent. The metal tubular supports on the bottom of the chair were also bent "like a rocking chair" (Tr, 37, 38, 58-59).
Numbers in parentheses preceded by Tr. refer to the pages of the trial transcript.
According to a memorandum dated July 6, 2012, claimant reported to Sergeant Graham that he "sat on a chair and it fell back causing him to hit his head on the wall and then landed on the floor" (Exhibit 1). In an accident report dated July 6, 2012, the day of the accident, claimant stated "I sat back in the chair and it slipped & I fell and hit my head on the wall" (Exhibit 2). This same report indicates that claimant reported to Officer Fitzpatrick that "[t]he chair gave way causing inmate to hit back of head on wall then fell to floor backwards" (id.). In a memorandum written by Correction Officer Snyder, claimant is quoted as saying " 'I went to sit in the chair and it broke and I hit my head on the wall' " (Exhibit 3). The Inmate Injury Report similarly reflects that claimant reported he " 'sat back in the chair and it slipped "broke" and I fell and hit my head on the wall' " (Exhibit 4).
James Fitzpatrick, the Fire and Safety Officer at Wallkill, was called to the scene of the accident where he found claimant lying on the floor. Officer Fitzpatrick spoke to the claimant who told him "I was leaning back in the chair and it slipped out from underneath me and I hit my head on the wall" (Tr. 15). Officer Fitzpatrick waited for a nurse to arrive, assisted the claimant to his feet and walked with him to the medical unit. The officer testified that the metal frame of the chair was visibly bent and that he took four photographs of the scene, two of the claimant, one of the floor, and one of the chair (Exhibit 6). Although Officer Fitzpatrick described the defect as clearly visible from the side, he photographed the chair only from the front, which fails to depict the defect (see Exhibit 6). In addition, Officer Fitzpatrick disposed of the chair notwithstanding the fact that claimant informed him of his intent to sue the State while they were both in the medical unit. Officer Fitzpatrick testified that it was his conclusion that "the chair did give way underneath [the claimant] and he hit his head" (Tr. 25). He also stated his opinion that claimant was "leaning back in the chair in an unsafe manner and it slid out from underneath him" (Tr. 28).
Correction Officer Charles Snyder supervised the transitional services area of the prison and was sitting at his desk approximately seven feet from the door of the classroom when he heard a sliding sound and then a "thump" (Tr. 91). Officer Snyder entered the room and found the claimant on the floor, bleeding from the back of his head. Officer Snyder stated that he observed that the chair frame had bent near the bottom of the chair base, and the seat of the chair was bent down toward the floor. He testified that he performed daily inspections of the transitional services classroom at approximately 3:15 p.m. and 5:30 p.m. to ensure that the room was secure and free of contraband. He also inspected the furniture in the room at the same time to confirm it was in good working order. Officer Snyder testified that he inspected the room prior to the incident, at approximately 5:30 p.m., and did not observe any defective or damaged furniture. According to Officer Snyder, there were approximately 20 chairs with attached desks for the inmates placed in a circular formation and a single padded chair for the teacher.
Eileen D'Angelo is employed by the Department of Corrections and Community Supervision to run the ASAT program and works Monday through Friday from 7:00 a.m. to 3:00 p.m. Although she was on vacation the week of claimant's accident, she testified that she used the padded chair from which the claimant fell on Friday June 29, 2012, and there were no issues with the chair. Ms. D'Angelo testified that the classroom was locked during her absence, except for the evening classes held on Tuesday and Friday evenings. According to Ms. D'Angelo, inmates are not permitted to use the teacher's chair.
Barbara Zeko is employed by Hudson Valley Community Services, an entity which provided instructional services, HIV testing and transitional planning to inmates pursuant to a contract with the State. Claimant was a volunteer in the PACE program, which is run by inmates she trains as peer educators. Ms. Zeko testified that she was in the transitional services room a few days prior to claimant's accident, on either July 2, 2012 or July 3, 2012, and observed at that time that the seat of the chair was "bent down", and that the rear of the seat was "about twelve inches", lower than the front (Tr. 115-116). She testified that the chair was obviously bent and she could tell by looking at the chair not to sit in it. According to Ms. Zeko, 'I saw it and it was bent" (Tr. 114). She never reported the condition of the chair.
Claimant alleges the defendant was negligent in failing to remove the broken chair from the classroom when it knew or should have known of its unsafe condition. "As a landowner, the State owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], lv denied 68 NY2d 611 [1986]; see also Preston v State of New York, 59 NY2d 997, 998 [1983]; Gonzalez v State of New York, 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 [2009], rearg denied 15 NY3d 820 [2010]; Colangione v State of New York, 187 AD2d 844 [3d Dept 1992]; Rosado v State of New York, 139 AD2d 851 [3d Dept 1988]). This duty obligates the State "to take every reasonable precaution to protect those who are in its institutions" (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]; see also Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]; Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], lv dismissed 97 NY2d 649 [2001]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]; Rosado v State of New York, 139 AD2d 851 [3d Dept 1988]). Nevertheless, the State is not an insurer against any injury which might occur on its premises and negligence generally will not be inferred from the mere happening of an accident (Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]). In order to prevail against a property owner for injuries resulting from a dangerous condition on its premises, it must be established that the owner either created the condition or had actual or constructive notice of its existence (Piacquadio v Recine Realty Corp. 84 NY2d 967 [1994]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Reid v State of New York, 61 AD3d 1063 [3d Dept 2009]; Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003).
Claimant moves to conform the bill of particulars to the proof regarding his allegation that the State had constructive notice of the allegedly defective condition of the chair. To address the issue, the Court takes judicial notice of the allegations set forth in defendant's demand for a bill of particulars and claimant's response thereto (Cato v City of New York, 70 AD3d 471 [1st Dept 2010]; Matter of Khatibi v Weill, 8 AD3d 485 [2d Dept 2004]). Concerning both constructive and actual notice, claimant responded simply "[d]efendant had notice of the condition" (claimant's Verified Bill of Particulars, response number 16). Insofar as "[l]eave to conform a pleading or the bill of particulars to the proof pursuant to CPLR 3025 (c) should be freely granted absent prejudice or surprise resulting from the delay", the motion is granted (Hine v Jafa Transp., Inc., 97 AD3d 794, 795 [2d Dept 2012]; Ravens Metal Prods. v McGann, 267 AD2d 527 [3d Dept 1999]).
Here, the Court has no reason to disbelieve the testimony of Ms. Zeko that the chair which caused claimant's injuries was obviously broken and defective for several days prior to the date of the accident. Ms. Zeko clearly recalled observing the broken chair while putting up posters in the room on either the Monday or Tuesday before the claimant's accident of Friday, July 6, 2012. To the extent Ms. D'Angelo testified that there were no issues with the chair on Friday, June 29, 2012, her testimony in no way undermines the import of Ms. Zeko's testimony that the chair was broken when she saw it the following Monday or Tuesday before the accident. Under these circumstances, the Court finds defendant had sufficient time prior to the accident to discover and remedy the dangerous condition.
The Court does not find the claimant's statements regarding the manner in which the accident occurred, contained in the various reports regarding the accident (Exhibits 1, 2, 3, 4, 5), to be inconsistent with the conclusion that the chair was bent and broken before the accident occurred. Although Correction Officer Snyder testified that he inspected the room shortly before the accident and at other times during the day, the primary focus of his inspections was the security of the facility, which included insuring that the windows were secured and the room was free from contraband. Notably, the only photograph of the chair, taken from the front, reflects that no defect is apparent from that perspective. While Ms. Zeko testified that the defective condition of the chair was obvious when viewed from the side, the photographic evidence demonstrates that the defect was not apparent to one approaching the chair from the front, such as one seeking to sit in the chair. In the Court's view, had a reasonable inspection of the room been performed between July 2, 2012 or July 3, 2012, and the date of claimant's accident on July 6, 2012, the bent and broken condition of the chair would have been discovered, and the chair removed from the room before the accident occurred (compare Catalano v Tanner, ___NY3d ___, 2014 NY Slip Op 04045 [2014], revg 112 AD3d 1299 [4th Dept 2013]; Dufrain v Hutchings, 112 AD3d 1212 [3d Dept 2013] with Lawrence v Gonzalez, 106 AD3d 462 [1st Dept 2013] and Singh v United Cerebral Palsy of N.Y. City, Inc., 72 AD3d 272 [1st Dept 2010]). Accordingly, claimant established defendant's negligence by a preponderance of the credible evidence. The Court attributes no fault to the claimant.
Based on the foregoing, the Court finds defendant 100% at fault for the happening of the accident.
Let interlocutory judgment be entered accordingly.
A conference will be held in the near future to schedule a trial on the issue of damages.
June 18, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims