Opinion
# 2012-040-007 Claim No. 110556
02-03-2012
MOYE v. STATE OF NEW YORK
Synopsis
Court concludes that Claimant failed to establish that Defendant was negligent when a steel stool he was sitting on collapsed. Case information
UID: 2012-040-007 Claimant(s): KELVIN MOYE Claimant short name: MOYE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110556 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Kelvin Moye, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas M. Trace, Senior Attorney Third-party defendant's attorney: Signature date: February 3, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Kelvin Moye, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on December 2, 2004 when a steel stool he was sitting on collapsed at Gouverneur Correctional Facility ("Gouverneur"), located in Gouverneur, New York. He alleges that Defendant was negligent in that the stool was not properly maintained and constituted a dangerous or defective condition. A trial was held on November 29, 2011 at the Court of Claims in Utica, New York. There were four witnesses: Claimant; New York State Correction Sergeant Wendy Whitmarsh; Wayne Bigarel, a civilian maintenance employee at Gouverneur; and Victoria D. Stone, R.N., a nurse at Gouverneur.
Claimant testified that, on December 2, 2004, he was incarcerated at Gouverneur. He stated that, on that date, he was told he was being moved from his cell on the first floor to a cell on the second floor. As soon as he arrived at his new cell location, he was advised by staff to take a shower; afterwards, he sat on the stool that was attached to the wall (see Ex. D, photo of stool similar to the one Claimant sat upon) to put lotion on his feet. The stool was attached to the wall bracket by a hinge, which made it possible for the stool to swivel away from the wall. He testified that he was sitting on the stool for two to three minutes, when the stool snapped and he fell to the floor. He stated he was in a great deal of pain; that he was placed on a backboard; and a cervical collar was also used; and he was taken out of the cell on a stretcher (see Ex. A, Inmate Injury Report). He was taken to an outside hospital, where he was examined and released. He was diagnosed with a contusion to his back and right shoulder (see Ex. G, Claimant's medical records). He was brought back to Gouverneur later the same day. He testified that he received physical therapy for his injury for approximately a year and a half after his accident and that he still experiences some back pain.
Claimant also testified that an Inmate Injury Investigation Report (Ex. B) was prepared by a State employee. He noted that the investigator recorded that the stool was manufactured by Corcraft in 1993 (sic - it appears the actual date is 1998) and that the condition of the stool "is poor." Claimant did agree on cross-examination, however, that the investigation report refers to the condition of the stool after the stool broke.
The State called Sergeant Wendy Whitmarsh as a witness. She testified that she has been employed by the Department of Corrections and Community Supervision("DOCCS") for almost 25 years and is currently employed at Gouverneur. She stated that, from June 1999 to August 2009, she was in charge of the Special Housing Unit ("SHU") at Gouverneur, the unit where the instant incident occurred.
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision ("DOCCS").
The witness testified that, prior to December 2, 2004, she was not aware of any problems with the stools in any SHU cells. Neither a correction officer nor an inmate ever informed her of a problem with a stool. If she had been informed of such a problem, she stated she would have prepared a maintenance work order to have the problem fixed. She stated that she did not prepare any such work order. She further stated that, prior to Claimant moving to the SHU cell on December 2, 2004, the cell was inspected by an officer because all cells are inspected prior to an inmate being placed in a cell. The cell then would have been inspected again by both an officer and the inmate when the inmate arrived at the cell.
Sergeant Whitmarsh reiterated that, to her knowledge, the stool was working properly, otherwise, Claimant would not have been assigned to the cell and there would not have been an inmate already in the cell. The sergeant had the cell taken out of service immediately after the subject incident and she had maintenance check the stools in all the other cells in SHU the next morning. She stated that, since December 2, 2004, no other stool has broken in SHU. With reference to the Inmate Injury Investigation Report (see Ex. B), Sergeant Whitmarsh stated that the stool was not in poor condition prior to Claimant's accident, but was in poor condition after the accident because it was broken and could not be used. Claimant believed that, when he returned to the facility from the hospital, he was put back in the same cell by himself. Sergeant Whitmarsh stated to the contrary, however, that Claimant was placed in a different cell, as that one was no longer in use because the stool was broken.
Apparently, the cell housed two inmates and one was in the cell when Claimant arrived.
Wayne Bigarel has been employed in the maintenance department at Gouverneur for approximately eight years. He testified that he was not aware of any work orders for the stools in the SHU cells prior to December 2, 2004. In Mr. Bigarel's opinion, the top of the pin that fastened the seat to the hinge broke and caused the seat to "tip out and drop." Mr. Bigarel stated that Exhibit E is a photograph of a hinge of a stool.
On cross-examination, the witness stated that the maintenance department had no knowledge of any problems with the stools in the SHU cells. He believed that the stool in Claimant's cell was in good condition prior to this incident. He also stated that, after Claimant was injured, the maintenance department repaired the stools in every SHU cell by replacing the pin (that broke in Claimant's stool) with a bolt.
Nurse Stone testified that she has been employed at Gouverneur for 20 years as a registered nurse. She testified that she completed the Inmate Injury Report (Ex. A) regarding Claimant's incident.
To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, [3d Dept 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept 2007]; DeLuke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, Ct Cl, Claim No. 107632, June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Thus, the State does have a common-law duty to maintain its facilities "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," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, supra at 837; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]).
The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). Moreover, the State is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Heliodore v State of New York, supra; Bowers v State of New York, supra). Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to meet his burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with his accident.
As a preliminary matter, the Court notes that each witness provided generally sincere and forthright testimony. The Court finds Claimant failed to establish by a preponderance of the credible evidence that Defendant created, or had actual or constructive notice of, the condition of the stool. The evidence established that there were no prior complaints or accidents regarding this stool or any other stool in the SHU. Also, prior to Claimant's accident, the stool was operating properly and it appeared to be in good working condition. As described by Mr. Bigarel, the pin inside the hinge of the stool broke. As the pin was inside the hinge, there was no way that the pin's condition could be seen upon a visual inspection of the stool. The Court concludes that the record is insufficient to sustain Mr. Moye's assertion that Defendant failed to properly maintain the stool, or that Defendant had notice the stool was dangerous or defective.
Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with his Claim and the Claim is dismissed. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
February 3, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims