Opinion
# 2013-009-041 Claim No. 114138 Motion No. M-83071
01-08-2014
EDWARD FORBES v. THE STATE OF NEW YORK
Claimant's attorney: SMITH, SOVIK, KENDRICK & SUGNET, P.C. BY: Suzanne L. Francis, Esq., and Phillip D. Dysert, Esq., Of Counsel. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion for an order of summary judgment dismissing the claim was granted, based upon the Court's finding that a dangerous condition did not exist at the time of this accident, and further that the State did not have actual or constructive notice of any dangerous condition.
Case information
UID: 2013-009-041 Claimant(s): EDWARD FORBES Claimant short name: FORBES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114138 Motion number(s): M-83071 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. SMITH, SOVIK, KENDRICK & SUGNET, P.C. BY: Suzanne L. Francis, Esq., and Claimant's attorney: Phillip D. Dysert, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: January 8, 2014 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion seeking an order of summary judgment dismissing the claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Attorney Affirmation, with Exhibits A-M 1, 2
Memorandum of Law in Support 3
Attorney Affidavit (in Opposition), with Exhibit 4
Memorandum of Law (in Opposition) 5
In his claim, claimant, at the time an inmate residing at Cayuga Correctional Facility (Cayuga), alleges that on July 27, 2007, while using a toilet in the B-2 Dormitory at Cayuga, the toilet collapsed beneath him, causing injuries to his lower back. Claimant alleges that personnel at Cayuga were negligent in failing to maintain this toilet in proper operating and working order.
In his deposition (Exhibit I to Items 1, 2) claimant testified that he had been on the toilet for approximately one minute before it collapsed, causing his injuries. He acknowledged that he had never filed any complaint or grievance about any of the toilets in his dormitory before this accident occurred.
Claimant further stated that he did not remember whether he had in fact used this particular toilet prior to this accident, and therefore had no recollection of ever sitting on the toilet and finding it to be loose, cracked, or leaking. Claimant also stated that when he first sat on the toilet, he did not notice it to be loose or wobbling, and there was nothing that alerted him to any problems with the toilet before it collapsed.
Russell Sampson, a maintenance supervisor at Cayuga, testified in his deposition that when work orders are received regarding problems with a toilet, he assigns them to a particular person for repair, depending on the type of job, and that the toilets are generally fixed on the same day that the work order is received.
Mr. Sampson also stated that toilets generally do not come loose from the wall, as they are secured to the wall by three bolts, and that they will only come loose if they are treated improperly by the inmates using them, such as an inmate standing on the toilet as a lookout, if the toilet seat is slammed very hard, or if the toilet is kicked.
Mr. Sampson testified in his deposition that he was not aware of any other toilets collapsing at the facility, but that toilet bowls had been broken or cracked in the past and had been replaced. He estimated that in the years 2006 and 2007, five toilets per year were broken and replaced, out of 56 total toilets in the unit. He further stated that other work orders affecting the toilets were also received during the course of the year, generally dealing with plugged toilets, loose seats, or improper flushing.
Eric Iversen, a correction officer at the facility, testified at his deposition that he was on duty at the time of this incident. He testified that although he did not witness the accident, he responded to the report made by claimant and verified that the toilet had broken from the wall and collapsed. He testified that he had not received any other complaints from inmates regarding this toilet before the accident, that he had not received any complaints from inmates regarding loose or wobbly toilets before the accident, and had not observed any problems with the toilets during his round, which included a walk through the bathroom area approximately every half-hour.
Gary Smith, another correction officer at the facility, testified that he was assigned to the B-2 dormitory unit during the period in question. Mr. Smith was not on duty at the time of this accident, but testified that during his time working as an officer in the B-2 dorm, he had never noticed any cracks on the toilets, he was not aware of any other toilets breaking off the wall in the housing unit, and he had not received any reports of loose toilets in the B-2 dorm.
Theodore Kijowski, a plumber at the facility, testified in his deposition that he had replaced the toilet in issue following this accident, after he received a work order. He testified that after replacing the toilet, he inspected the immediate area and found nothing unusual, and did not observe any cracks in the wall. He testified that he could not recall any other toilets breaking off the wall during his work at the facility. Furthermore, he testified that on July 20, 2007, one week before the accident in question, he had used a "snake" to clear a clog in the specific toilet. He stated that at this time the toilet was not loose, and that he did not notice any cracks in the toilet.
On the basis of these depositions, and the factual testimony provided therein, defendant now moves for summary judgment dismissing the claim. Claimant contends that there is a question of material fact as to whether the State had constructive notice of the dangerous condition, and whether the defendant should have conducted periodic inspections of the toilets in the dorms at the facility.
It is well settled that summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361 [1974]) and should be granted only when it has been established that there is no triable issue (Moskowitz v Garlock, 23 AD2d 943 [3d Dept 1965]). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). If such material issues of fact exist, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). In other words, the issue is not whether claimant can ultimately establish liability, but rather, whether there exists a substantial issue of fact requiring a plenary trial (Scarpulla v County of Suffolk, 128 AD2d 603 [2d Dept 1987]). However, only bona fide issues of fact are sufficient to defeat an application for summary judgment, and not issues "based on conclusory or irrelevant allegations" (Rotuba Extruders v Ceppos, supra at 231). Generally, negligence cases are not subject to resolution by summary judgment, but may be granted if the proof submitted on such an application is sufficient to clearly establish the right to such relief (Foltis, Inc. v City of New York, 287 NY 108 [1941]; deVoil v Wallace, 221 AD2d 411 [2d Dept 1995]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law "by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegrad v New York Univ. Med. Ctr, 64 NY2d 851 [1985]). Once the movant has made this showing, the burden then shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d at 562).
There is no question that the State has a duty to maintain its facilities, including its correctional facilities, in a reasonably safe condition in view of all the circumstances, including the likelihood of injuries 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]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). The State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (Killeen v State of New York, 66 NY2d 850 [1985]; Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]; Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]).
In order to establish a breach of this duty, a claimant must establish that (1) a dangerous condition existed; (2) the defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (3) the condition was a proximate cause of the accident (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
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. In this particular matter, claimant has testified that the toilet suddenly collapsed approximately one minute after he sat on it. He further stated that it did not appear to be wobbly or in poor repair prior to its collapse.
Claimant's observations were also confirmed by the correction officers working in the B-2 dorm at the time, and by the plumber who replaced the toilet following its collapse. Significantly, this same plumber stated that he had performed a minor repair on the toilet one week before the accident, when he cleared a clog in the toilet, and that the toilet appeared to be in good condition at that time, without any indication that it might collapse.
Based on all of this undisputed testimony, and without any other contradictory testimony or evidence establishing material question of fact, the Court must therefore conclude that a dangerous condition did not exist at the time of this accident. There simply was no evidence that this particular toilet was in any state of disrepair, nor any evidence that it was loose, wobbly, or that it might collapse prior to the incident involving claimant. Without any dangerous condition, the State cannot be held liable for the collapse of the toilet and the injuries suffered by claimant.
Additionally, assuming arguendo that the condition of this toilet constituted a dangerous condition, claimant has failed to come forward with any evidence or indication that the State either created or had actual or constructive notice of its existence.
Claimant has not even suggested that the State created the dangerous condition, and there was no indication in any of the deposition testimony submitted herewith to suggest that the State had actual notice that this toilet was in poor repair or that it was about to collapse and fall off the wall. Claimant stated that he had not made any prior complaints about this toilet, nor were there any records or reports submitted in opposition to this motion to suggest that any complaints about this toilet had been made prior to the accident.
Claimant argues, however, that the State had constructive notice of the dangerous condition of the toilet, based upon prior complaints regarding other toilets cracking and breaking, based primarily upon the deposition testimony of Mr. Sampson, the maintenance supervisor. However, there is no indication that any of the prior reported problems with toilets breaking involved a toilet breaking apart from the wall and collapsing, as occurred in the instant case. A general awareness of a dangerous condition, however, is legally insufficient to constitute either actual or constructive notice of the particular condition that allegedly caused the accident (Gordon v American Museum of Natural History, 67 NY2d 836).
Therefore, since there was no testimony or other evidence submitted in opposition to this motion to suggest that the State had any prior notice, actual or constructive, of toilets breaking from the wall and collapsing, claimant cannot establish liability against the State for the injuries suffered by him in this accident. To do so would render the State an insurer of its premises.
Finally, claimant suggests that due to the ongoing problems with toilets at the facility, the State should have implemented a routine and regular inspection of the toilets, and that such a procedure might have detected a problem with this toilet prior to claimant's accident. Claimant, however, has not submitted any "evidentiary proof in admissible form," such as an affidavit from a qualified expert, to suggest that such an inspection procedure was warranted, or suggesting that it could reasonably have prevented this accident from occurring. (See, Alvarez v Prospect Hosp., 68 NY2d at 324). As previously stated, only bona fide issues of fact will defeat an application for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d at 231), and therefore this mere speculation is insufficient to create a material question of fact.
Accordingly, it is the decision of this Court that the defendant has submitted sufficient proof establishing that a dangerous condition did not exist in this matter, and further that the defendant did not create any dangerous condition or have actual or constructive notice of such a condition. In response to this prima facie showing by the defendant, claimant has failed to establish a material issue of fact sufficient to warrant a trial, and therefore defendant's motion for summary judgment dismissing this claim must be granted.
Based on the foregoing, it is
ORDERED, that motion No. M-83071 is hereby GRANTED; and it is further
ORDERED, that Claim No. 114138 is hereby DISMISSED.
January 8, 2014
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims