Opinion
109036.
Decided February 27, 2006.
Claimant's attorney:Robert W. Nishman, Esq.
By: Schneider, Kaufman Sherman, P.C.
By: Howard Sherman, Esq.
Defendant's attorney:Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
FACTS
After a trial held on this negligence action on September 8, 2005, the Court makes the following determination. On March 29, 2002, claimant had been incarcerated at Hudson Correctional Facility for three years, and housed in the E Cottage of this facility for approximately two months. At 9 P.M. that evening, after taking a shower, claimant fell on the floor outside the one shower facility shared by the many inmates housed on the first floor of E Cottage. The shower stall had a shower curtain and a piece of plexiglass on the bottom of the stall. The plexiglass extended 12 inches upward along the outside of the shower curtain to prevent splashing on to the floor (Exhibit C-2). The floor outside the shower was small flat tile and grout. Claimant wore shower slippers, made of "rubbery plastic" with some tread, into the shower stall. He described his fall as follows:
I had finished taking a shower, uh, the light was, you know, very dim, you know, uh, it's been like that for a while, but I stepped out and after I was done, and I, you know, I guess I couldn't see the wet spot, you know, there's usually water that collects outside from, you know, [the] shower and whatever leakage out the side, and, uh, I slipped, I guess I hydroplaned and my knee went out and folded under me and went crunch. (T:14-15).
He testified that water always leaked out of the shower stall during a shower but he never reported it before the accident. He claimed that the lighting condition at the time of his accident was very dark. There was only a fluorescent light in the area where he fell, which was out at the time and had been so for at least a week. He maintained that it was too dark to shave there but general bathing activities could be carried out. The maintenance log for E Cottage dated March 27, 2002 and March 29, 2002, indicates the need for the replacement of the "first floor bathroom lights" (Exhibit 3). Immediately after his fall, claimant reported the incident to Correction Officer Morgan, the officer on duty in E Cottage that evening, who wrote an inmate injury report (Exhibit 1). The medical report indicates that upon examination there was "no swelling-no crepitus-no deformity" (Exhibit 1). Upon cross-examination, claimant admitted that he could have taken a shower at numerous other times during the course of the day, and that the piece of plexiglass at the bottom of the shower stall had nothing to do with his fall. Claimant was the only witness to testify during the presentation of his case.
Exhibit 3, the photostat of the maintenance log, had the left margin cut off. The numeral indicating the month for the 27-02 date appears to be part of the numeral 3. The subsequent entry of 29-02 is immediately prior to 4-10-02, and after the partial March date, so the Court determines that this date is 3-29-02.
Defendant produced two witnesses, neither of whom shed any illumination on the incident. The first witness was Correction Lieutenant Kevin LaPorto, who worked for one month at Hudson Correctional Facility in 2002. At the time of the accident he was a Housing Sergeant who supervised the correction officers in the housing units. He had no recollection of this accident, but he testified that if a staff member observed an area that needed a repair, the staff member would prepare a work order request or contact civil maintenance staff by telephone, during their daytime working hours, and fill out the work order request. Although the maintenance log for E Cottage indicates that it was noted two days before the accident that the bathroom light needed replacement (Exhibit 3), Correction Lieutenant LaPorto did not know whether a work order was made.
The Court declines to make an adverse inference against defendant for the failure to produce Correction Officer Morgan at trial. Claimant failed to meet the requirements for such an inference ( see Placencia v Torres, 194 Misc 2d 623 [2003]).
Defendant's second witness was Raymond Webster, an engineer from the New York State Office of General Services. He testified that the Building Code of New York State that was in effect at the time of this accident did not address the issue of non-slip surfaces within bathrooms. Webster visited the bathroom facilities on January 21, 2005 and March 29, 2005, three years after the accident. He testified that he observed the floors to be unglazed ceramic mosaic tile, which he believed to be an appropriate building resource for bathrooms. During his visits in 2005, he scraped the floor with a key and determined that there was no evidence of soap or wax on the floor. Webster drew a scaled drawing of the bathroom (Exhibits B and B-1), but he could not confirm that the lighting fixture, as he drew it, was in the same place as it was in 2002. Despite that lack of specificity, he measured the amount of light emitted from such light fixture. The New York State Building Code did not have any mandatory minimum foot candle levels for bathroom facilities in 2002. In response to claimant's assertion that a mat should have been placed outside the shower stall, Webster stated that mats present problems in that they can harbor bacteria under them, they can be more slippery than the floor, and they could present a problem for people in wheelchairs.
Webster is an Associate Architect with the New York State Office of General Services where he has worked since 1978. He graduated from the Syracuse School of Architecture in 1969 and was licensed by the State in 1973. He has designed prisons while working at the Office of General Services.
New York State Building Code effective January 1, 1984.
DISCUSSION
The State has a duty to maintain all of its premises in a reasonably safe condition but it is not an insurer against all harm ( see Basso v Miller, 40 NY2d 233). Consequently, negligence cannot be inferred solely from the occurrence of an incident; rather, negligence must be proven ( see Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]). The same duty of due care that is owed to individuals who use the State's highways, public buildings, and parks is owed to those who inhabit the State's correctional institutions ( see Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]).
Claimant has the burden of proving by a preponderance of the credible evidence, that the State breached this duty of reasonable care and that claimant was injured as a result of that breach ( see e.g. Bowers v State of New York, 241 AD2d 760, 761 [3d Dept 1997]). This burden is met by showing facts and conditions from which the negligence of defendant may be reasonably inferred ( see Bernstein v City of New York, 69 NY2d 1020). Specifically, claimant must establish: 1) the existence of a dangerous condition; 2) that the State either created the dangerous condition or had actual or constructive notice of it; 3) that the State failed to remedy this danger within a reasonable period of time; and 4) that the dangerous condition caused the injuries in question ( see Dapp v Larson, 240 AD2d 918 [3d Dept 1997]).
The credibility of a witness is determined by the trier of fact, because it is that judge or jury who sees and hears the witnesses ( see Amend v Hurley, 293 NY 587). Ordinarily, appellate courts will defer to the credibility determinations made by the trial courts ( see Di Donato v State of New York, ___AD3d ___, 807 NYS2d 456 {25 AD3d 944} [3d Dept 2006]; Butler v New York State Olympic Dev. Auth., 307 AD2d 694 [3d Dept 2003]). "[T]he appearance, attitude and demeanor of a witness upon being questioned and while before the court are matters to be taken into consideration in testing veracity and in determining the weight to be accorded his or her testimony" ( People v Carter, 37 NY2d 234; see Matter of Nowakowski, 284 App Div 655 [4th Dept 1954]). The observation of the witnesses' demeanor is often the single most accurate method of determining the truth ( see Boyd v Boyd, 252 NY 422 ). A trial court's findings, based largely upon credibility assessments, are entitled to deference ( see Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]).
In this instance, the parties each presented a weak case. Unfortunately for claimant, the mere fact that defendant produced two witnesses who added nothing to the defense, does not relieve claimant of proving his case by a preponderance of the evidence. After observing claimant and considering his testimony, the Court does not attribute much weight to it. His testimony does not prove that a dangerous condition existed or that it was the proximate cause of his accident. While the maintenance log proves that defendant had notice of the missing light bulb for at least two days, claimant's testimony does not prove that a dangerous condition existed or that it was the proximate cause of his accident. A missing light bulb does not establish liability. Claimant did not produce any independent witnesses who could confirm that there was a problem with water splashing outside of the shower stall or that there were prior accidents in that bathroom.
The Court agrees with claimant that Mr. Webster's observations several years after the accident were conclusory and are not considered competent testimony ( see Duffy v Universal Maintenance Corp., 227 AD2d 238 [1st Dept 1996]).
Claimant's reliance on Sousie v Lansingburgh Boys and Girls Club, ( 291 AD2d 619 [3d Dept 2002]) is misleading since there were corroborating testimonies, by disinterested witnesses, in support of the plaintiff in that case.
As such, claimant has failed to carry his burden and establish his claim by a preponderance of the evidence. Accordingly, claim 109036 is dismissed. All motions not heretofore decided are deemed denied.
Let judgment be entered accordingly.
Appendices: