Opinion
# 2014-010-057 Claim No. 113324
10-15-2014
DANIEL TRAVIS v. THE STATE OF NEW YORK
OFODILE & ASSOCIATES, P.C. By: Anthony C. Ofodile, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Rebecca Kramer, Assistant Attorney General
Synopsis
inmate kitchen slip and fall
Case information
| UID: | 2014-010-057 |
| Claimant(s): | DANIEL TRAVIS |
| Claimant short name: | TRAVIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 113324 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | OFODILE & ASSOCIATES, P.C. By: Anthony C. Ofodile, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Rebecca Kramer, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 15, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for injuries he sustained during his incarceration at Fishkill Correctional Facility (Fishkill), when he slipped and fell in the housing unit kitchen. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant was a participant in the Alcohol Substance Abuse Program and resided in Housing Unit 1 along with the other participants in the program. The therapeutic program required inmates to take responsibility for their surroundings and permitted them access to a small kitchen on their unit. The kitchen was equipped with two stainless steel countertops, a slop sink, and a tile floor. Entry to the kitchen was permitted to the inmates by correction officers who unlocked the kitchen door. According to claimant, correction officers inspected the kitchen and kept it locked when it was dirty. The officers then posted a note on the kitchen door indicating the problem and the inmates then cleaned the area. Claimant testified that he used the kitchen once or twice a week for approximately three months prior to his accident and had never fallen nor observed anyone else fall.
On February 18, 2006 at approximately 9:00 p.m., claimant and another inmate, David Dobinson, proceeded to the kitchen. There was no warning sign on the door or in the kitchen. At Dobinson's request, Correction Officer Costigan unlocked the door. Claimant testified that, in his experience, the officer inspected the kitchen before permitting the inmates access. However, on February 18, 2006, the officer simply unlocked the door and permitted the inmates to enter. Dobinson turned on the light and claimant went to the slop sink to clean his bowl. After washing and drying the bowl, he took six to eight steps toward the counter and then slipped. Claimant hit his head on the stainless steel counter before landing on the floor. He did not see anything on the tiles before he fell. Once on the floor, claimant observed oil and water, french fries and other food around him. He noted that the front of his chest was wet and covered with crumbs and that his hands were oily. Claimant was subsequently transported to an outside medical center.
On February 24, 2006, when claimant returned to Fishkill, he filed a grievance regarding the condition in the kitchen. Claimant requested that: 1) a non-slip floor be installed; 2) the countertops be reconfigured to provide greater space between them; 3) the kitchen be enlarged and 4) a permanent sign be posted to warn people of the hazardous conditions in the kitchen. The grievance was denied. However, an inspection of the floor conducted on February 24, 2006 indicated that the floor was "very greasy and dirty and looked as if it hadn't been cleaned in a long time" (Ex. L).
Claimant acknowledged that participation in the program required inmates to sign a contract agreeing to maintain the cleanliness of their unit and to accept weekly chores on a rotating basis. Claimant was assigned to take out garbage.
Kenneth Malkemus testified that he has been employed by the New York State Department of Corrections and Community Supervision (DOCCS) for 22 years and on February 18, 2006, he was a Maintenance Supervisor I. Malkemus explained that the inmates were responsible for cleaning chores and that their work was inspected by correction officers. According to the form denying claimant's grievance, Malkemus inspected the kitchen floor on February 24, 2006 (Ex. L). Malkemus had no recollection of his role in claimant's grievance, even when shown the exhibit at trial. Malkemus testified that prior to February 18, 2006, he never received any complaints concerning the floor.
Stephen Roberts, the Deputy Superintendent of Administration at Fishkill in February 2006, testified that inmates signed a contract to be part of the residential treatment program and agreed to be responsible for the maintenance of their unit and to be held to a higher standard of housekeeping. He emphasized that the inmates were responsible for cleaning the kitchen after each use and that inmate porters also cleaned the area. Roberts noted that approximately 50 inmates resided on the unit and that the kitchen was in constant use. Correction officers closed the kitchen if it was not sufficiently cleaned.
Roberts recalled claimant's grievance and its denial. His rationale for the denial was that the area was not hazardous, the equipment was in working order, and that no floor tiles were damaged.
Correction Officer Sean Costigan testified that he has been employed by DOCCS since September 12, 2005. On February 18, 2006, he was assigned to the evening shift on claimant's housing unit. During his routine rounds, he did not notice any issues with the condition of the kitchen. Had he noticed anything, he would have directed that the area be cleaned. Costigan was in the officers' bubble when he became aware of claimant's injury. Costigan proceeded to the kitchen and advised his supervisor that claimant had fallen.
Correction Officer Hollie Rathgeber testified that from 2004 through 2006, she was a correction officer at Fishkill. On February 18, 2006, she was assigned to claimant's housing unit. She explained that the unit was unique because inmates were required to agree to cleanup after themselves as a condition of participation in the therapeutic program. She recalled that there was a handwritten note in the kitchen directing inmates to clean the area after using it. Rathgeber maintained that as she made her rounds, she routinely checked the kitchen which was in a well maintained condition. In connection with claimant's grievance, Rathgeber prepared a memorandum stating that during her shift on February 18, 2006 she inspected the kitchen between 6:30 a.m. and 2:30 p.m. and she observed it to be clean, including the floors, throughout her tour of duty (Ex. J).
Analysis
It is well established that "[t]he State - - just as any other party * * * is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346 [1947]; see Preston v State of New York, 59 NY2d 997 [1983]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). The State is not an insurer of the safety of its premises and negligence cannot be inferred merely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Rosa v State of New York, 63 AD3d 1383 [3d Dept 2009]). Negligence must be proven (see Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]). Claimant has the burden of proving by a preponderance of the credible evidence, that the State breached its duty of care by either creating a dangerous condition or by failing to timely and reasonably address a dangerous condition to which they had either actual or constructive notice (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
Here, the evidence established that Rathgeber had inspected the kitchen on February 18, 2006 and that during her 6:30 a.m. to 2:30 p.m. tour of duty she found the floor to be clean. Additionally, there was also no evidence of any accidents in that area prior to claimant's fall. This is especially significant given the number of people who traversed the floor daily, without incident, prior to claimant's accident. Malkemus' report of his inspection of the floor on February 24, 2006 indicating that the floor was "very greasy and dirty and looked as if it hadn't been cleaned in a long time" (Ex. L), does not establish that the floor was in such condition prior to claimant's slip and fall on February 18, 2006. Malkemus testified that he had not received any complaints about the condition of the floor prior to claimant's fall. Additionally, claimant testified that he had used the kitchen twice daily for approximately three months prior to his accident and, according to him, he never fell nor observed anyone else fall in that area.
Thus, the Court finds that claimant has failed to establish that defendant either created a dangerous condition or had any notice of a potentially dangerous condition (see Quintanilla v State of New York, 94 AD3d 846 [2d Dept 2012]; Adingra v Henry St. Settlement, 26 AD3d 279 [1st Dept 2006]; Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 113324.
October 15, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims