Opinion
# 2018-029-010 Claim No. 126460
01-29-2018
LARRY FORD v. THE STATE OF NEW YORK
LARRY FORD, PRO SE ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Joan Matalavage, Assistant Attorney General
Synopsis
The pro se claim by an inmate seeks damages for injuries he sustained after falling in the shower at Coxsackie Correctional Facility. Claimant alleged his fall resulted from the State's negligence in not putting mats inside the inmates' showers. After a video trial, the court found the State not liable based on claimant's failure to establish a prima facie case of negligence, and the State's immunity from liability for discretionary decisions.
Case information
| UID: | 2018-029-010 |
| Claimant(s): | LARRY FORD |
| Claimant short name: | FORD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126460 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | LARRY FORD, PRO SE |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Joan Matalavage, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 29, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This pro se claim seeks damages for injuries allegedly resulting from defendant's negligence in failing to place mats inside the inmates' showers at Coxsackie Correctional Facility ("Coxsackie"). A trial was held by video on November 30, 2017, with claimant appearing pro se and Assistant Attorney General Joan Matalavage appearing on defendant's behalf at Coxsackie, and the court presiding from the courthouse in White Plains, New York.
Claimant testified on his own behalf and defendant called Captain David Martin to testify for the defense. Claimant did not submit any exhibits. Defendant introduced and the court admitted several documents related to claimant's grievance about the incident as Exhibit A. At the close of trial, defendant made a motion to dismiss the claim for failure to establish a prima facie case of negligence. The court reserved on the motion.
Claimant testified that on March 18, 2015, while in keeplock, he stepped into the shower, soaped up, then slipped and fell. He hit his head and became unconscious. There was a floor mat outside the shower but none inside where the floor was wet. There was supposed to be a mat inside the shower. As a result of the fall, claimant tore his arm and experienced back pain and headaches. His back pain is continuing.
Claimant told the court there was a witness at the facility who could corroborate his testimony about the accident, and asked to call him to testify. Claimant had not obtained a subpoena. Defendant objected, arguing lack of notice and subpoena. At the request of the court, claimant summarized the witness' testimony. The court denied claimant's request, concluding that the witness' testimony would be redundant. Claimant rested his case.
For the defendant, Captain Martin testified that he is a correction captain, and has worked at Coxsackie "on and off" for approximately 23 years. He is familiar with the inmate shower areas. The floor in the F2 shower area at Coxsackie is tiled. Floor mats were ineffective. Further, they were discarded because of mold and overflow. There is a singular drain on each side for three to four shower heads. The facility allows for shower shoes, and State sneakers may be worn in the showers by inmates in keeplock. There are also grab points on either side of the shower.
Captain Martin recognized Exhibit A as a collection of documents from the grievance packet related to claimant's shower fall. These documents include an April 19, 2015 "case history and record," June 12, 2015 grievance denial, June 13, 2015 grievance statement and several "to/from" memos. They establish that: claimant fell in the shower and was immediately taken to medical for treatment; and it is "facility policy that rubber mats are not placed inside the shower areas for sanitary purposes."
As a landowner, the State has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]). This duty applies to the State's responsibility for its correctional facilities (see Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]), and in that setting extends beyond the State's role as a property owner. "Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [them]" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). That duty does not, however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable (id.; see Villar v Howard, 28 NY3d 74, 80 [2016] [finding facility need not foresee specific harm]).
"[I]n a slip and fall case, it is incumbent upon Claimant to establish 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" (Braithwaite v State of New York, 26 Misc 3d 1239[A] [Ct Cl 2009], citing Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]).
"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" (Forbes v State of New York, UID No. 2013-009-041 [Ct Cl, Midey, J., Jan. 8, 2014] [no proof toilet collapsed due to dangerous condition]; see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [action over minor defect in pavement dismissed]; see also Touloupis v Sears, Roebuck & Co., 155 AD3d 807, 808 [2d Dept 2017]).
Claimant argued that the bare tile floor in the shower was a dangerous condition, and defendant's failure to use shower mats to alleviate the condition was a breach of its duty to keep inmates reasonably safe. The court disagrees. The fact that a tiled shower floor is wet is "necessarily incidental to the use of the shower stall" (Barron v Eastern Athletic, Inc., 150 AD3d 654, 655 [2d Dept 2017] [summary judgment for gym affirmed where patron slipped on wet shower floor]). Unlike conditions in prisons over which an inmate has no control, such as physical environment and violence by other inmates, claimant "slipped on water he knew was present in the shower before entering" (id.). Claimant was aware he needed to be careful, and he did not present evidence of physical disability or other individual circumstances that could have warranted greater precautions than the ones Captain Martin testified the facility had in place - there are "grab points" on either side of the shower and that inmates in keeplock may wear shower shoes or State-issued sneakers. Other than claimant's expressed surprise at trial on hearing Captain Martin state that inmates in keeplock may wear sneakers in the shower, there was no evidence contradicting the captain's testimony.
The court also notes that defendant is immune from liability for the facility's discretionary decision not to use mats in the showers, and there was no evidence the decision violated a specific regulation or policy. " 'Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general' " (McCants v Hempstead Union Free School Dist., 127 AD3d 941, 942 [2d Dept 2015] [dismissing complaint where governmental decision as to school crossing guard placement was discretionary], quoting McLean v City of New York, 12 NY3d 194, 203 [2009]). " '[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result' " (Haddock v City of New York, 75 NY2d 478, 484 [1990], quoting Tango v Tulevech, 61 NY2d 34, 41[1983]).
The court finds defendant not liable for negligence. Claim No. 126460 is dismissed, and defendant's motion to dismiss is denied as moot. The Clerk of the Court shall enter judgment accordingly.
January 29, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims