Opinion
# 2011-049-105 Claim No. 109970
12-22-2011
PRINCE v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-049-105 Claimant(s): RAYMOND PRINCE Claimant short name: PRINCE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 109970 Motion number(s): Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's attorney: Raymond Prince, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: December 22, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This case arises out of incarcerated claimant Raymond Prince's allegation that he slipped and fell on a stairwell in C-Block at Southport Correctional Facility (Southport) on September 9, 2004, and suffered injury to his lower back as a result. Prince also contends, in his pleadings, that he was "denied prompt and adequate medical care" for his injury (Claim ¶ 2). A trial was conducted on this matter via video from Elmira Correctional Facility on August 17, 2011.
At trial, Prince testified on his own behalf as follows: At the time of the incident in question, Southport had long had a leak in its ceiling above the stairwell in C-Block, and as a result it became wet during the rain. Claimant filed a grievance on July 27, 2004 regarding this leak. That grievance, which was entered into evidence, described the problem as follows:
"When it rains or snows there is constantly water on the stairway from individuals walking back and forth and also from leaks in the wall. This is my fourth time here at Southport and this problem has persisted and continued since I first came here back in 1996. This presents a problem to inmates and staff alike" (Claimant's Ex. 1).
The grievance's requested relief was "for maintenance" to address this problem. According to a notation on the grievance, and claimant's testimony, it was consolidated with other similar complaints (Id.).
The Grievance Review Committee recommended that the requested relief be granted, and stated: "a work order request for repair of C-Blk roof has been submitted per C-Block" (Id.).
According to Prince, the leak had not been remedied as of September 9, 2004. There had been heavy rain the prior day, and as a result there was a puddle on the C-Block stairwell's landing. Although Prince acknowledged that he saw the puddle, he stated that there was no way around it, and he slipped on the water and fell down the stairs. He noted that at the time of the incident he was shackled. In a subsequent administrative grievance entered into evidence, concerning the medical care received by claimant, Prince characterized the fall as follows: "[O]n 9-9-04 while going to afternoon exercise I slipped in a puddle of water that had collected on the landing in the stairwell and fell halfway down the stairway in C-Block"(Claimant's Ex. 2).
In a statement submitted on his administrative appeal of this grievance, claimant stated that there was a videotape of his fall, and demanded that it be maintained (Claimant's Ex. 4). There was no discussion of the tape at trial, and no effort was made to introduce it.
Prince testified that after the fall, he experienced pain in his lower back. He was prescribed Motrin by prison health officials, but he stated that it did not help. Rather, according to Prince, he continued to suffer such pain at the time of trial, which "comes and goes." He testified that after his release from Southport (and prior to his current incarceration), Prince saw a doctor in Georgia, and was prescribed Tylenol with codeine. When asked to describe any limitations that resulted from his injury, he stated that he cannot "constantly" sit or lift things, and cannot do certain exercises.
Defendant called three witnesses. First, it presented the testimony of John Rafferty, the plant superintendent of Southport. He has served in that capacity since July 2005, and is in charge of maintaining Southport's physical plant.
Through Rafferty's testimony, defendant entered two exhibits into evidence. The first, Defendant's Exhibit A, was a copy of a work order dated August 26, 2004, issued for repairs of the C-Block-Penthouse roof. The nature of the work undertaken pursuant to this order is not set forth on the document, and was not described by Rafferty.
The work order lists a completion date of the day the order was issued, and the completion time as 8:52:57, or 55 seconds after it was requested. The order also appears to state, however, that 4.5 hours were expended on the project. As noted, there was no testimony at trial on the nature of the work performed in response to this order.
The second document, Defendant's Exhibit B, dated October 29, 2004 - after the injury at issue - is labeled "declaration of emergency," invoking a process that allows for expedited completion of such repairs.The declaration, which would allow the facility to utilize emergency contracting procedures, states that: "Several roofs are leaking causing damage to interior finishes as well as slip hazards in the stair towers utilized for inmate movement to and from outdoor recreation areas." As justification for an emergency contract, the declaration states: "The Facility does not have the capability to make the necessary repairs" (Id.). Rafferty testified that such an emergency declaration was prepared when a repair proved beyond the means of Southport staff to carry out, and the prison needed to hire an outside contractor or to obtain the aid of the main DOCS office.
While evidence of subsequent repairs is generally not admissible in a negligence case (see e.g. Hinton v City of New York, 73 AD3d 407, 408 [1st Dept 2010]), this document was moved into evidence by defendant, without objection, and thus is appropriately before the Court.
On April 1, 2011, the Department of Correctional Services and the Division of Parole were merged into the Department of Corrections and Community Supervision. For the purpose of this decision, the department is referred to as "DOCS."
Rafferty testified that the emergency order would typically be prepared just after an oral application was made for such repair. That is, the October 29, 2004 date on the declaration reflects the day on which a request was made, not the day that the work was begun, or completed. Defendant also called as a witness Registered Nurse Kathleen Bellinger, who worked at Southport from 2004 to 2006. Through her testimony, defendant introduced various exhibits about Prince's statements and treatment post-accident (Defendant's Ex. C, Inmate Injury Report; Defendant's Ex. D, Ambulatory Health Record). Bellinger stated that as part of her duties she treated inmates in the infirmary, but had no independent recollection of treating Prince. She therefore testified solely based on her review of her notes relating to the incident.
Finally, defendant called Jill Northrop, a nurse practitioner at Elmira Correctional Facility who had previously worked at Southport for four years, and was employed there on the day of the incident. She also had no independent recollection of the events at issue, and relied on the documentary record for her testimony. Northrop read from several exhibits, including a portion of Prince's Ambulatory Health Record (Defendant's Ex. D)and the report of Prince's X-Ray (Defendant's Ex. E, Sick Call Response and Report of Radiology Service). The former indicated that an examination of Prince's back performed by Bellinger just after the accident revealed no obvious "scrapes, swelling or bruising." Further, a notation on that document written by Nurse Bellinger on the day of the incident says "officers state they observed no fall," and characterizes Prince's back just after the accident as "warm and dry."The notes also indicate that Prince walked back to his cell.
Northrop explained that Bellinger wrote some of the entries in the health record, after which Northrop reviewed and cosigned them. Other entries were made by Northrop herself.
The notation says "W & D," but Nurse Northrop understood this to mean "warm and dry."
While the medical record notes some "tenderness" in Prince's back, Northrop indicated that this was a statement of the subjective complaints expressed by Prince, not a medical determination. The X-Ray report found that claimant had "no fracture subluxation." According to Northrop, the X-rays were normal.
In order to ensure that Prince's injuries could be assessed on a full record, the Court left the record open at the end of trial, directed the State at trial to provide it with a copy of claimant's prison medical records, and informed claimant how he could object to their admission - although claimant stated on the record that he had no such objection. The State was only able to locate additional medical records from Prince's most recent incarceration beginning on October 12, 2010, which were submitted to the Court on September 30, 2011.Those certified records are now received into evidence without objection and pursuant to CPLR § 2306(c), and are deemed Defendant's Exhibit F. These records do not make reference to claimant's back injury. In one document, a health screening prepared for reception into DOCS and completed on October 12, 2010, Prince responded upon reception in the facility that he was not then taking any medication for health problems, and indicated "no" in regard to whether he had any medical problems or complaints at the time of entry into Southport.
By letter dated October 31, 2011, the defendant indicated that the only earlier records it was able to locate were those introduced at trial as Defendant's Exs. D and E.
Discussion
Defendant State of New York must maintain its property, including the prisons that it owns and operates, "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" (Miller v State of New York, 62 NY2d 506, 513 [1984]; see also Preston v State of New York, 59 NY2d 997, 998 [1983]). To demonstrate that the State has failed to meet this duty, and to hold it liable in damages for such failure, a claimant must show that the defendant either created the risk that caused him or her injury, or had actual or constructive notice thereof (see Di Sanza v City of New York, 11 NY3d 766, 767 [2008]; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]), and had sufficient time to correct the condition or warn of its existence (see Mercer v City of New York, 88 NY2d 955, 956 [1996]).
Given the undisputed facts before me, I find that the defendant had actual notice that there were recurring leaks in the stairwell where Prince fell. The State was placed on such notice by the specific complaint made by Prince (consolidated with other such complaints). Moreover, prison authorities credited that complaint, ultimately issuing a repair order (see Branham v State of New York, UID No. 2007-010-055, Ruderman, J. [Jan. 22, 2008] [citing repair order for leak in prison ceiling as evidence that defendant had notice thereof]).
Mere general awareness by the defendant that a dangerous condition may be present is insufficient to sustain a negligence claim (see Piacquadio, 84 NY2d at 969). When, however, the defendant had actual knowledge of a recurring safety hazard, constructive notice of a specific recurrence of that condition may be inferred (see Chianese v Meier, 98 NY2d 270, 278 [2002]; Kivlan v Dake Bros., 255 AD2d 782, 783 [3rd Dept 1998]), at least if the condition was "reasonably within [defendant's] power to correct" (Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346 [2d Dept 2004], quoting Chianese, 98 NY2d at 278). In such case, claimant is not required to show that defendant knew or should have known about the particular hazard (in this case, the puddle on the stairway on September 9) in order to prove constructive notice(see Columbo v James River, II, Inc., 197 AD2d 760, 761 [3rd Dept 1993] [evidence of property owner's awareness of "regularly recurring dangerous condition of water accumulating on the floor" in area where plaintiff fell created question of fact as to defendant's constructive notice of presence of water on date in question]; Mazerbo v Murphy, 52 AD3d 1064, 1067 [3d Dept 2008] [proof that defendant had knowledge of "recurring tripping hazard" in same general area in which plaintiff fell, would establish constructive notice of hazard]; David v New York City Hous. Auth., 284 AD2d 169, 171 [1st Dept 2001] [testimony that rain leaking into building was "the usual thing" sufficient to show constructive notice of particular leak]). As the Court stated in David, a showing of constructive notice from a leak does not require proof that "the defendant had actual knowledge of the accumulation of rain water on the date of her accident, but merely that the condition was recurring over a period of time with each successive rainfall" (David, 284 AD2d at 171). The evidence adduced at trial shows that was the case here.
One Supreme Court ruling called into question the validity of the "recurring dangerous condition" principle (see Sutton v Bruno's Village Inc., 2005 NY Misc LEXIS 3439, 234 NYLJ 2 [Sup Ct, Suffolk County Jul. 5, 2005]), on the ground that it was inconsistent with the Court of Appeals decision in Rivera v 2160 Realty Co., LLC, 4 NY3d 837 (2005). In Rivera, the Court rejected a negligence claim arising out of plaintiff's fall over debris on a stairway, based on the limited time for which such debris had been present, and overturning an Appellate Division ruling that found the presence of such debris to be a "recurring condition" providing defendant with actual knowledge of the hazard on the date of the incident in question. Rivera did not specifically address the recurring condition doctrine, and the Third Department - and every other department - have since this ruling repeatedly reaffirmed its authority. In any case, the Sutton court specifically distinguished cases where there was a "known defect that occurs on a regular, ascertainable basis . . . is routinely left unattended, and causes a hazard." The court cited as an example of such a condition "a leak in the ceiling that causes a puddle every time it rains," since such condition "can be anticipated and remedied."
Constructive notice is also present when a dangerous condition is "visible and apparent and . . . exist[s] for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). In this case, according to claimant's testimony, the puddle at issue resulted from rain the day before, which had ceased on September 9.Although there is no bright line test as to what length of time a specific hazard must be present before constructive notice will be implied, the presence of a puddle from the day before is clearly sufficient (see e.g. Padula v Big V Supermarkets, 173 AD2d 1094, 1095-96 [3rd Dept 1991] [proof that floor was wet as a result of snow from the day before and that morning could show constructive notice of such wetness]; Montross v State of New York, 219 AD2d 845, 631 NYS2d 953 [4th Dept 1995] [finding of negligence warranted in light of "unreasonable delay" of 45 minutes in cleaning up accumulation of water from prison floor]).
In light of this uncontested timetable, the principle that a property owner is not liable for a dangerous condition created by a storm until a reasonable time after the storm has ceased (see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]) is of no aid to the State here; the accident in this case occurred on the day after the inclement weather at issue ended.
Further, while there are indications in the record that the State sought to address the leak, its efforts were insufficient as of the date of the fall. The August 26 work order appears to indicate that some repair was directed for the C-Block roof prior to Prince's accident, but whatever the nature of those repairs, they apparently did not resolve the problem at issue (see Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1209 [3d Dept 2010] ["evidence of a known recurring and chronic leakage problem with the roof of a warehouse which, although superficially addressed, was never adequately addressed so as to remedy the underlying problem" sufficient to rebut defendant's summary judgment motion on negligence claim for plaintiff's fall]; Montross, 219 AD2d at 845 [State found negligent despite "inadequate" efforts to address recurring water accumulation problem in prison six weeks before accident]). In addition, the "declaration of emergency" also indicates both that the leak remained a problem after the initial repair, and that the State had tools at its disposal for fixing the ceiling that it did not utilize until after September 9.
The fact that the State had sufficient notice of the defect, however, will only render it liable if I credit Prince's testimony that on September 9, 2004 he slipped and fell on a puddle created by heavy rain that had leaked through the roof of C-Block the day before. The evidence before me raises concerns about the veracity of this account. Claimant's description of the accident's severity (i.e., falling "halfway down the stairway") seems incompatible with the absence of any physical manifestation of his injuries. Moreover, the gap between his own description of the physical aftereffects of the accident and what is set forth in his medical records raises questions about his overall credibility. Further, Nurse Bellinger's contemporaneous note says that the officers observed "no fall," and that Prince's back was "warm and dry" just after he allegedly slipped on a puddle.
While these problems are highly relevant to the severity of the fall and therefore to the issue of damages, I do not find them - or anything else in the substance of claimant's testimony, in his demeanor, or otherwise in the record - to provide a sufficient basis for finding that Prince never slipped at all, and that he simply fabricated the entire event out of whole cloth. Some of the evidence cited above is at best ambiguous. For example, the handwritten note regarding the officers' observation is unclear as to whether they simply did not see Prince fall, or affirmatively assert that the fall did not occur. No testimony was adduced on this question. Indeed, at trial, defendant did not offer any testimony, or make any argument, to contradict Prince's basic account. Therefore, I credit Prince's testimony that he slipped on the stairwell on September 9, 2004.
In addition, the fact that Prince was aware of the leak on the stairwell, and saw the water accumulated there before he fell, does not warrant denial of his claim. That the dangerous condition at issue was open and obvious does not relieve the State of its duty to maintain the prison premises in a reasonably safe condition, but rather is relevant only to the issue of the claimant's comparative fault (see Timmins v Benjamin, 77 AD3d 1254, 1255 [3rd Dept 2010] [plaintiff's awareness of dangerous condition on stairs does not defeat negligence claim, but may be considered "when determining any comparative negligence"]).In this regard, the Fourth Department's decision in Montross, supra, is instructive. The claimant in Montross was a visitor to the prison who slipped and fell in an inch of rainwater on the prison floor. As here, the accumulation of water during inclement weather had been a recurring problem at the facility. The Fourth Department, reversing the trial court, found that the State had been negligent in failing to address this issue. Although it recognized that the flood was "open and obvious," the Court held that this did not absolve the State of liability, but rather was relevant only to claimant's own level of culpability.
Certain Third Department decisions can be read as holding to the contrary, but that position was explicitly rejected in MacDonald v City of Schenectady, 308 AD2d 125, 126-27 (3rd Dept 2003).
In Montross, the Court found that the claimant bore half the responsibility for the fall, noting that she could see the water and "feel it with her feet." Defendant in this case also raises comparative negligence as an affirmative defense in its pleadings, but it has not met its burden to prove claimant's fault. Defendant did not show what "reasonable precautionary measures" claimant could have taken to avoid the puddle, or submit any evidence to show that Prince "could have avoided" the hazard (Perales v City of New York, 274 AD2d 349, 349 [1st Dept 2000] [jury could not find comparative negligence, even if evidence allowed inference that plaintiff saw ice hazard before fall, absent evidence that he could have avoided it]). The only testimony on this issue was Prince's statement that he was shackled and could not have walked around the puddle; without any indication in the record that Prince had an alternative, defendant cannot succeed on its affirmative defense (see Sigue v Chemical Bank, 284 AD2d 246, 246 [1st Dept 2001] [defendant asserting comparative negligence has "burden to show that there was an alternative, safer route that plaintiff chose not to take"]; see also Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006] [taking into account the special circumstances that confront an incarcerated inmate in assessing whether the inmate was comparatively negligent]).
In sum, claimant has met his burden of showing that the State had actual notice of the leak on the stairwell in C-Block, that actual notice of this recurring defect placed the State on constructive notice of the specific puddle which, according to claimant, caused him to slip and fall. Moreover, the presence of the puddle on the stairwell for a day itself placed the State on constructive notice of its existence. In addition, the State did not take timely steps to repair the condition that gave rise to the leak that the State recognized to be hazardous. Finally, the State has not met its burden to prove comparative fault. The State is therefore 100% liable in negligence for the harm caused by Prince's fall (see Branham, supra [State liable where inmate slipped and fell on puddle on gym floor, and memoranda showed that prison was on notice of recurring problem of such leaks]).
While I find for claimant on the issue of liability, his contentions regarding the severity of the fall, and the nature of the harms he suffered as a result thereof are, however, highly problematic. Prince stated in his administrative complaint that he fell "halfway down the stairway," and in his testimony he now contends that the injuries thereby sustained continue to plague him, causing him pain and placing restrictions on his life activities. Yet the contemporaneous medical examinations received into evidence indicate no physical signs of such injury: Prince walked away from the scene of the accident, his back did not manifest a bruise or a scratch and his x-rays were normal.
Further, even if I were to credit Prince's testimony that he suffered lower back pain in the months and years after his fall, he has introduced no medical evidence on which I could find that such pain was the result of the accident at bar. Indeed, although Prince stated that he was released from prison during the pendency of this litigation, and that during such release his back was examined and treated by a doctor in Georgia, he has preserved no records from such visits, although they would be directly relevant to his claim for damages. As noted above, when he returned to prison, his intake form indicates that he took no medication, and had no medical problems.
Assuming without deciding that claimant could prove, without expert testimony, a causal connection between his fall and the purported back problems he claims to currently suffer (compare Brown v County of Albany, 271 AD2d 819, 821 [3rd Dept 2000] ["the alleged soft tissue damage was beyond the observation of the lay jury, competent expert medical testimony was required to causally connect these injuries to the accident"] with O'Neill v Pelusio, 65 AD2d 914, 915 [4th Dept 1978] [finder of fact may draw conclusion about causal relationship between negligence and injury without expert testimony when fact that particular injury results from negligent act are "within the experience and observation of an ordinary layman"]), the current record is wholly insufficient to support such a claim. Prince's contention is based entirely on his own statements, without any medical records or other objective proof that demonstrated any injury to his back at all, much less tying such injury to a fall that took place on September 9, 2004. The record is also devoid of any medical evidence to corroborate claimant's account of the pain he suffered during this period when engaged in certain activities (see Dowling v Dowling, 138 AD2d 345 [2d Dept 1988] [the court may appropriately exercise discretion to limit recovery for conscious pain and suffering to the period corroborated by medical record]).
I credit Prince's testimony that he suffered some pain in the initial wake of his fall, but find that he has failed to sustain his burden to show that he incurred any other injury or impairment as a result thereof. On the basis of these rulings, the State is directed to pay damages in compensation for past pain and suffering in the amount of two hundred fifty dollars (see e.g. Walsh v State of New York, UID No. 2003-032-529, Hard, J. [Dec. 31, 2003] [court awards three hundred dollars upon finding based on claimant's testimony that he suffered "some degree of discomfort" from injury]; Flower v State of New York, UID No. 2002-030-005, Scuccimarra, J. [Feb. 13, 2002] [finding liability for fall on stairs, but in the absence of "medical evidence linking the alleged fall to . . . injuries or anything else indicating some ongoing course of treatment related to this fall" awarding two hundred dollars for past pain and suffering]). In view of the foregoing, claimant is not entitled to an award for any future pain and suffering.
Finally, as to Prince's allegation that he was denied prompt and adequate medical care, he has failed to prove his claim in this regard. There was no testimony at trial, or any other evidence, that would support this aspect of his case. Moreover, the sufficiency of the medical treatment Prince received is a matter outside the ordinary experience of laypersons, and claimant cannot prove his claim in this regard without expert testimony (see e.g. Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]).
Accordingly, claimant is awarded the sum of two hundred fifty dollars. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).
All motions on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 22, 2011
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims