Opinion
# 2015-049-001 Claim No. 119650 Motion No. M-85584 Cross-Motion No. CM-85748
01-05-2015
HAMILCAR BARCA v. THE STATE OF NEW YORK
Hamilcar Barca, Pro Se Eric T. Schneiderman, New York State Attorney General By: Aaron J. Marcus, Assistant Attorney General
Synopsis
The Court granted defendant's motion for summary judgment dismissing an inmate's slip and fall claim. Claimant failed to raise an issue of fact as to actual or constructive notice of a dangerous condition, and failed to submit evidence that the correctional facility protocol of requiring inmates move their property bag without assistance posed a risk or was inherently dangerous.
Case information
UID: | 2015-049-001 |
Claimant(s): | HAMILCAR BARCA |
Claimant short name: | BARCA |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 119650 |
Motion number(s): | M-85584 |
Cross-motion number(s): | CM-85748 |
Judge: | DAVID A. WEINSTEIN |
Claimant's attorney: | Hamilcar Barca, Pro Se |
Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Aaron J. Marcus, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 5, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
In a claim filed March 25, 2011, claimant Hamilcar Barca, an inmate proceeding pro se, seeks monetary damages for injuries sustained in a slip and fall that occurred while he was housed in Southport Correctional Facility ("Southport") on April 17, 2009. The claim alleges that at the time of the incident, Barca was shackled in handcuffs and a waist chain, and was being escorted by correction officers from his cell to the draft room in connection with his transfer to another facility. The claim states that Barca had to move two draft bags at the time of the transfer, including down two flights of stairs (Claim ¶¶ 7, 11, 14). When he asked the escorting officers how he was to manage, he was told to move the bag, or he "may lose it" (id. ¶ 12).
Unable to use the handrails because of his restraints, Barca says that he slipped on an unknown substance, fell down the stairs and sustained a laceration to his left elbow (id. ¶¶ 16, 18).
Claimant now moves for summary judgment. He supports the motion with his own affidavit, and various documents. In the former, Barca reiterates the factual allegations from his claim, and asserts that defendant exposed claimant to a foreseeable danger by having him carry his property bags down stairs in full restraints, when cadre inmates could have brought his bags down for him (Aff in Supp ¶ 18). According to Barca, cadre inmates assist in a number of tasks throughout Southport, including picking up property in cells of inmates who are transferring to and from the facility (Aff in Supp ¶ 18). In addition to his own affidavit, claimant submits the sworn affidavit of inmate Phillip Nieves, in which Nieves states that he was housed at Southport in 1993 and 2007, and was never required to leave his cell to carry his property to the draft room.
Defendant State of New York opposes the motion and cross-moves for summary judgment dismissing the claim. Defendant's application is supported by the affirmation of Attorney General Aaron J. Marcus, his memorandum of law, and affidavits in support by correction officers R. Kennell (currently assigned to Southport), and P. Jayne (retired, formerly assigned to Southport). Claimant has not replied to defendant's motion.
In their affidavits, Kennell and Jayne explain the procedures for moving inmates with their property as follows: inmates are "responsible for carrying their own property bags," and officers are not required to assist them in this task (Kennell Aff. ¶ 6; Jayne Aff. ¶ 6). To assist inmates in this manner, the affiants maintain, "would represent a safety risk on multiple levels," since officers need their hands free to respond to emergencies, and either the escorted inmate or another prisoner could take advantage of the situation in which the officers are freighted with an inmate's baggage to attack them (id.). They further state that Barca could have used more bags, or made multiple trips to lighten his load (Kennell Aff. ¶ 7; Jayne Aff. ¶ 7). Finally, Kennell states that claimant "did not appear to be having any problems or issues moving his property bag or bags" prior to the fall (Kennell Aff. ¶ 5).
Defendant appends various documents to its motion. These include an inmate injury report, in which Barca is quoted as saying that "the cause of his fall is unknown" (Marcus Aff. Ex. D). The motion also includes Barca's Notice of Intention, in which he states that the process of dragging two bags down the stairs "resulted in [his] falling and sustaining injuries," but makes no mention of slipping on any substance (id. Ex. E).
Defendant also argues that other than claimant's self-serving allegation, there is no evidence that there was a foreign substance on the stairs at the time of the incident, much less that the substance has been present for a sufficient amount of time to permit defendant to remedy the condition (Def. Mem. of Law at 4-6). Kennell and Jayne also state in their affidavits that at the time of the fall they did not see any substance on the stairs that might have caused Barca to fall, nor did claimant advise them that he had slipped on something (Kennell Aff. ¶ 8; Jayne Aff. ¶ 8).
Discussion The State of New York is under an obligation to maintain its prisons "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" (Miller v State of New York, 62 NY2d 506, 513 [1984] [internal quotations omitted]; Preston v State of New York, 59 NY2d 997, 998 [1983]). The State is not, however, 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]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Thus, in a personal injury action arising out of the State's alleged negligence, a claimant must demonstrate that defendant created the dangerous condition that caused the injury, or defendant had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
On the parties' cross-motions for summary judgment, each movant initially has the burden to show its entitlement to judgment as a matter of law, by tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If a movant does so, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact which requires a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Addressing defendant's motion first, its prima facie case requires a showing that it lacked actual or constructive notice of the defect, and did not create it (see Salerno v. North Colonie Cent. School Dist., 52 AD3d 1145, 1146 [3d Dept 2008]). This can be done via a showing that the substance at issue was not "visible or apparent," and did not exist for sufficient time for defendant to remedy it (see Cerkowski v Price Chopper Operating Co., Inc., 68 AD3d 1382, 1384 [3d Dept 2009]).
The State has met that burden here, in regard to the alleged substance upon which Barca says he slipped, through the testimony of Kennell and Jayne that they did not see any foreign substance on the stairs at the time of Barca's fall (see Fontanelli v Price Chopper Operating Co., Inc., 89 AD3d 1177 [3d Dept 2011] [defendant met prima facie burden through testimony of witness that he observed no dangerous condition at the spot of plaintiff's fall five minutes beforehand]).
For his part, claimant has failed to present an adequate rebuttal. A party opposing summary judgment is required to "submit evidentiary facts or materials, by affidavit or otherwise demonstrating the existence of a triable issue of ultimate fact" (Indig v Finkelstein, 23 NY2d 728, 729 [1968]), and he has made no response to defendant's motion. The evidence submitted in his motion in chief is also insufficient. Barca makes no allegation of actual notice. As to constructive notice, that requires a showing that "the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendants to discover it and take corrective action" (Brown v Haylor, Freyer & Coon, Inc., 60 AD3d 1188, 1190 [3d Dept 2009]). In his filing, Barca states that he does not know what the substance was. He provides no descriptive information on its composition, its dimensions, how long it was on the floor, or even if it was visible. Under these circumstances, claimant cannot successfully rebut defendant's prima facie case (see Signorelli v Troy Lodge #141 Benevolent & Protective Order of Elks, 108 AD3d 831, 832 [3d Dept 2013] [plaintiff's testimony regarding presence of hole in carpet insufficient to contest summary judgment in slip and fall case, where plaintiff "was unable to describe the hole or its dimensions"]; Cerkowski, 68 AD3d at 1384 [plaintiff's testimony that she slipped on "water or oil or something," whose source she could not identify, insufficient to resist summary judgment]; Salkey v New York Racing Assn., 243 AD2d 621 [2d Dept 1997] [plaintiff did not show a question of fact as to constructive notice of substance on floor when he provided no evidence as to how long it had been there]).
For the same reasons, claimant has not presented a prima facie case on his own motion.
With respect to claimant's charge that the facility was negligent for requiring him to carry his own bags, defendant maintains that it is Southport policy that inmates are responsible for carrying their own property bags without the assistance of correction officers. Both Kennell and Jayne attest that this protocol is in place because the alternative of providing assistance by correction officers would pose a security risk, since officers need their hands free so that they may respond to emergency situations, such as inmate attacks. Each states that Barca could have used more property bags and made multiple trips to ease the moving process more manageable, but apparently chose not to do so.
Prison security concerns do not relieve defendant of its "duty to use reasonable care to protect its inmates from foreseeable risks of harm" (Reid v State of New York, 61 AD3d 1063, 1064 [3d Dept 2009], quoting Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001] [internal quotations and citations omitted]). Nevertheless, in the sphere of prison security "deference to the judgment of correctional facility authorities must be the rule, and a court cannot properly substitute its judgment for that of such authorities" (Young v State of New York, UID No. 2008-031-516 [Ct Cl, Minarik, J., Nov. 20, 2008]), quoting Tucker v State of New York, Claim No. 85578 [Ct Cl, Bell, J., Aug. 28, 1996]).
Here, defendant has met its prima facie burden by establishing the basis for its practice, and by presenting testimony as to the alternative means available to claimant of carrying his bags, that would have mitigated any risks. Claimant has failed to rebut this showing. In particular, he has presented no evidence, beyond his own fall, demonstrating that the practice in question is inherently dangerous, poses an unnecessary risk of harm, or was in violation of any of regulations with respect to inmate movement. Claimant's assertion that the cadre inmates should be required to carry other inmates' bags is simply Barca's personal view on the subject.
In any case, claimant must show that the failure of the State to make assistance from cadre inmates available itself constituted negligence, and there is no basis in claimant's submission to support such a finding (see Simpson v State of New York, UID No. 2012-049-113 [Ct Cl, Weinstein, J., Oct. 16, 2012] [dismissing negligence claim based on requirement that prisoner carry his own bags after trial; "Claimant has offered no evidence that the practice in question poses an unnecessary risk of harm, or that defendant was in violation of any of its regulations with respect to inmate movement"]). Finally, the Nieves affidavit does nothing more than provide evidence that the facility once may have had a different practice, but does not demonstrate anything about the relative risks or advantages of these different means for transporting inmate property.
In view of the forgoing, it is
ORDERED that claimant's motion M-85584 is denied; and it is further
ORDERED that defendant's cross-motion CM-85748 is granted and claim no. 119650 is dismissed.
January 5, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, Affidavit in Support, with exhibits A through F annexed thereto;
2. Defendant's Notice of Cross Motion, Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Motion, with exhibits A through G annexed thereto; and
3. Defendant's Memorandum of Law in Opposition to Claimant's Motion and in Support of Defendant's Cross Motion.