Opinion
# 2015-040-007 Claim No. 108028
02-19-2015
ERIK JOHNSON v. THE STATE OF NEW YORK
Erik Johnson, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas M. Trace, Esq., Senior Attorney
Synopsis
Court finds Claimant failed to establish by a preponderance of the credible evidence that Defendant negligently maintained the mess hall floor at Oneida CF resulting in his slip and fall.
Case information
| UID: | 2015-040-007 |
| Claimant(s): | ERIK JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 108028 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Erik Johnson, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas M. Trace, Esq., Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | February 19, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro Se Claimant, Erik Johnson, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on February 25, 2003, when he slipped and fell while working in the mess hall at Oneida Correctional Facility located in Rome, New York ("Oneida"). He alleges that Defendant negligently maintained the mess hall floor.
The trial of this Claim was held by video conference on December 19, 2014, with the parties at Marcy Correctional Facility in Marcy, New York, and the Judge at the Court of Claims in Saratoga Springs, New York. At trial, Claimant submitted one exhibit into evidence (Ex. 1). The State submitted three exhibits into evidence (Exs. A, B and C). Claimant was the only witness who testified at trial.
Claimant testified that, on February 25, 2003 at about 11:30 a.m., he was working in the mess hall behind the serving line, when he was told to carry a pan of hot tomato sauce to the serving line and that, while he was carrying the pan of hot sauce, he slipped and fell, suffering injuries to his back, hip and elbow. Claimant was seen by a nurse in the Oneida infirmary and an Inmate Injury Report was prepared (see Ex. A). He stated that he missed four days of work as a result of his injuries. In his Claim, Mr. Johnson also alleges that the State is liable for its failure to provide safety mats on the kitchen floor.
On cross-examination, Claimant stated that he was transferred to Oneida in January 2001 and he worked in the mess hall from when he arrived until the date of the accident, February 25, 2003. He was wearing his State-issued boots at the time he fell. Claimant stated he was carrying a big pan of tomato sauce at the time he fell and was not looking at the ground, and, thus, he did not see what caused him to slip. However, he stated that food could drop anywhere in the area of the serving line. He further admitted that he is unaware how long the substance was on the floor before he slipped and fell.
To establish a prima facie case of negligence in a slip and fall case, it is incumbent upon Claimant to establish by a preponderance of the credible evidence 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 (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Pierson v North Colonie Cent. School Dist., 74 AD3d 1652, 1654 [3d Dept 2010]; Zibro v Saratoga Natl. Golf Club, Inc., 55 AD3d 998, 999-1000 [3d Dept 2008]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]).
When the State "acts in a proprietary capacity" by engaging in activities traditionally performed by private entities, it is subject to the same principles of tort law that govern those private actors (Miller v State of New York, 62 NY2d 506, 511-513 [1984]; see Sebastian v State of New York, 93 NY2d 790, 793-794 [1999]). The Court concludes that Defendant's operation of a kitchen and inmate food service work program constitute such a proprietary function.
Accordingly, inmates participating in work programs are not State employees and the statutory provisions of the Labor Law do not cover Claimant, nor do they bind Defendant, in connection with such activities (Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]; D'Argenio v Village of Homer, 202 AD2d 883, 884 [3d Dept 1994]; Garcia v State of New York, UID No. 2009-039-160 [Ct Cl, Ferreira, J., Dec. 24, 2009]). 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, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]).
Nevertheless, 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, cert denied 412 US 939 [1973]; see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]). That duty extends to the State's institutions, including its correctional facilities, and encompasses a duty to provide inmates engaged in work programs with a reasonably safe workplace (Hood v State of New York, UID No. 2010-013-504 [Ct Cl, Patti, J., June 1, 2010]; see Postell v State of New York, UID No. 2002-019-016 [Ct Cl, Lebous, J., July 10, 2002]; Garcia v State of New York, UID No. 2001-007-569 [ Ct Cl, Bell, J., Oct. 1, 2001,]; see also Lombardi v Stout, 80 NY2d 290, 294 [1992]).
At the same time, 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]).
While a landowner has no duty to warn about an open, obvious dangerous condition, it also now is clear that the open and obvious nature of a defect "does not negate a landowner's duty to maintain its premises in a reasonably safe condition, [though it] may raise an issue of fact as to [a claimant's] comparative negligence" (Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2d Dept 2007]; Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]; MacDonald v City of Schenectady, 308 AD2d 125 [3d Dept 2003]). The existence of a dangerous condition and, if such condition is found, whether or not it is open and obvious, generally are questions 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]; Walters v County of Rensselaer, 282 AD2d 944, 945 [3d Dept 2001]).
A claimant "can establish constructive notice through evidence that the defendant 'was aware of an ongoing and recurring unsafe condition which regularly went unaddressed' " (Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008], appeal dismissed 11 NY3d 770 [2008], quoting Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]). "When a property owner has 'actual knowledge of the tendency of a particular dangerous condition to reoccur, he [or she] is charged with constructive notice of each specific recurrence of that condition' " (Kivlan v Dake Bros., supra, quoting Columbo v James River, II, Inc., 197 AD2d 760, 761 [3d Dept 1993]; accord Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1208 [3d Dept 2010]).
Upon consideration of all the evidence, including a review of the exhibits and listening to Claimant testify and observing his demeanor as he did so, the Court finds that Claimant has failed to meet his burden, and has failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with his fall at Oneida. The Court finds Claimant failed to establish by a preponderance of the credible evidence that a dangerous condition existed on the floor of the mess hall. Claimant was unable to describe what caused him to fall. He was not sure if he slipped on food or a liquid. Further, assuming, arguendo, that a dangerous condition existed, Claimant failed to establish that Defendant created, or had actual or constructive notice of, the specific condition upon which Claimant fell. Other than Claimant's general and conclusory testimony that food often fell on the floor and was not removed quickly by the porters, there was no testimony or evidence presented of an ongoing and recurring unsafe condition which regularly went unaddressed.
Claimant also failed to establish by a preponderance of the credible evidence that Defendant was negligent by not providing floor mats in the kitchen. Mr. Johnson did not address this prong of his Claim during his direct testimony and offered nothing during cross-examination to refute the State's determination in connection with his grievance that mats are unhygienic, pose other safety/security concerns and that appropriate safety and sanitation requirements were followed in accordance with State policy (see Ex. B).
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 made at trial 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 19, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims