Opinion
No. 171SSM 16
Decided October 17, 2002.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered May 30, 2002, which, with two Justices dissenting, modified, on the law, an order of the Supreme Court (Phillip R. Rumsey, J.), entered in Courtland County, partially denying a motion by defendant to dismiss the amended complaint. The modification consisted of reversing so much of the order as partially denied defendant's motion, granting the motion in its entirety and dismissing the amended complaint.
During a cell block inspection, plaintiff inmate allegedly overheard an undersheriff comment that toile paper on the wall should be removed. Although not given a direct order to do so, plaintiff attempted to remove the toilet paper, and fell, allegedly sustaining injuries. He asserted common-law negligene and Labor Law causes of action against defendants.
Supreme Court dismissed the Labor Law claims and denied defendant's motion for summary judgment to dismiss the common-law negligence claim. The court found that a question of fact existed as to whether a person in plaintiff's position, entrusted with general cleaning duties on a regular basis, could reasonably interpret the undersheriff's expressed desire to have the toilet paper removed as an order.
The majority at the Appellate Division reversed, concluding that neither plaintiff's pride in his work, his stated desire to have a clean cell block, nor the absence of a direct order not to clean the wall was sufficient to raise a question of fact as to defendants' negligence; and that plaintiff's personal and subjective belief that he was expected to clean the wall was insufficient to create a legal duty on the part of defendants.
Lamp v. County of Courtland, 294 A.D.2d 795, reversed.
Submitted by James P. Godemann, for appellant.
Submitted by Gregory A. Gates, for respondents.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendants' motion for summary judgment denied. Under the circumstances of this case, plaintiff raised triable issues of fact on the common law negligence cause of action as to whether defendants owed a duty of care and whether defendants breached that duty.
On review of submissions pursuant to section 500.4 of the Rules, order, insofar as appealed from, reversed, with costs, and defendants' motion for summary judgment denied, in a memorandum.