Opinion
# 2013-048-522 Claim No. 116985
03-21-2013
RILEY REID v. THE STATE OF NEW YORK
Synopsis
After trial, the Court dismissed this Claim, alleging injuries due to trip and fall on stairs, based on Claimant's failure to establish, by a preponderance of the credible evidence, that the alleged defect constituted a dangerous condition of which Defendant had actual or constructive notice, and based on the failure to establish causation.
Case information
UID: 2013-048-522 Claimant(s): RILEY REID Claimant short name: REID Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116985 Motion number(s): Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: RILEY REID, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Anthony Rotondi, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: March 21, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Riley Reid seeks to recover damages for personal injuries he sustained falling on interior stairs at Eastern Correctional Facility (Eastern) where he was an inmate under the supervision of the New York State Department of Correctional Services (DOCS) . He alleges that the accident was caused by Defendant's negligent maintenance of the stairs. A trial in this matter was held by video conference in which Claimant testified on his own behalf, and Correction Officer Conner and Mr. Adao Pereira, a mason employed by DOCS, testified on behalf of Defendant. A total of 11 exhibits were accepted into evidence consisting of roughly 161 pages of DOCS records, the majority of which are Claimant's medical records subsequent to the accident.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, ch 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
At approximately 6:00 A.M. on September 11, 2008, Claimant left his cell in 15-Company at Eastern to report to work at the mess hall for the breakfast and lunch shifts. To get to the mess hall, Claimant had to descend one flight of concrete stairs leading down from South Hall to the Guard Room Floor. Claimant testified that the last step going down was defective and caused him to fall to the floor, hurting his back. Initially, Claimant testified that as he reached the last step going down, his foot caught on a "crack"in the tread of the last step. He later clarified that this defect was not a crack, but more like a "dent or groove" worn into the tread. Claimant had difficulty describing the alleged defect, at one point stating that it was similar to a surface groove that results when "you sharpen, say, a knife or something and it leaves a deep dent inside the concrete." He acknowledged that the defect did not pierce through the tread of the step. Claimant's testimony about the step is not fully consistent with what he alleged in his Notice of Intention to File a Claim (Notice of Intention) or the Claim filed with the Court. The Notice of Intention, dated November 19, 2008, alleges that his "foot got caught in a crack on the bottom of the step and I fell" (Defendant's Exhibit B). The Claim, filed nearly seven months after the date of the Notice of Intention, alleges that "his foot became lodged in an elongated cracked broken step in the South Hall" (Claimant's Exhibit 8).
Quotations are from the trial audio recording unless otherwise noted.
At trial, Claimant testified that the groove began at the far right edge (as one is descending) and middle of the tread and ran approximately eight inches parallel with the nose edge of the tread. When questioned about the dimension of the defect, Claimant acknowledged that his "memory is a little bad," but eventually testified that the groove was one and one-half inches wide, and one inch deep.
Correction Officer Conner has 23 years of experience at Eastern. For the last eight years, he has worked sick call escort and regularly and frequently walks up and down this flight of stairs. He testified that he was familiar with Claimant because of his duties as an escort officer, and remembers the incident when Claimant fell. While Officer Conner does not recall seeing Claimant fall, he remembers being at the top of the stairs and seeing Claimant on the floor at the bottom of the stairs. Officer Conner testified that he used the stairs daily to escort inmates and did not see a crack in the stairs, and is sure that there was never a defect of the dimensions alleged by Claimant.
Adao Pereira works as a mason at Eastern. He testified that he was directed to make a repair of the bottom step at issue in the case, though he does not recall the specific date. He testified that he used a "very, very small amount of material" to make a shallow repair. Mr. Pereira testified that he used no more than a "spoonful of material" to fill a gouge two inches long, one and one-half inches wide and only one-eighth inch deep. Mr. Pereira's description of the gouge was in stark contrast to Claimant's testimony. Mr. Pereira did not believe a repair was even necessary, but performed one because he was directed to.
Photographs of the stairs provided by Defendant were introduced by Claimant and admitted into evidence without objection. Claimant testified at trial that the photographs depict the stairs, including a close-up of the bottom step, after the step was repaired (Claimant's Exhibits 3 and 3-A). Claimant testified that the photographs, especially the close up of the bottom step, show discoloration at the far right edge of the tread where the stair was repaired. The photographs are blurry and washed out in a yellow color. If Claimant is correct that the discoloration shows the repair, then the Court is constrained to infer that the defect in the tread must have been minor because the discolored area is very small. Indeed, the photographs, to the extent they have evidentiary value, support Mr. Pereira's testimony that the gouge was minor, and tend to confirm that the gouge would be difficult to see, consistent with Officer Conner's testimony.
Nevertheless, Claimant testified that, as a result of catching his foot on the gouge in the last step, he fell to the floor and hurt his back. Officer Conner escorted Claimant to the infirmary where an Inmate Injury Report was completed (see Claimant's Exhibit 1, Inmate Injury Report dated September 11, 2008). Medical staff prescribed medical rest and pain medicine, and ordered x-rays (see Claimant's Exhibit 2, Ambulatory Health Record Progress Note dated September 11, 2008). X-rays were taken on September 18, 2008, and the DOCS radiologist issued an x-ray report stating:
Exam LS spine 3 views shows normal alignment & curvature. Mild degenerative osteophyte formation levels T11, T12, L1, L3 & L4. Productive articular changes in posterior facet joints L5-S1. Remainder LS spine including both SI joints unremarkable.(Claimant's Exhibit 2, X-Ray Requisition and Report). According to his medical records, Claimant was seen by a DOCS doctor who advised Claimant of his degenerative spondylosis condition, and prescribed pain medicine and a muscle relaxant (see Claimant's Exhibits 2 and 6).
IMP: NO EVIDENCE FRACTURE OR MALALIGNMENT.
MILD DEGENERATIVE LOWER THORACIC & LUMBAR SPONDYLOSIS.
DISC SPACES WELL MAINTAINED.
DEGENERATIVE POSTERIOR FACET JOINT DISEASE L5-S1
On September 22, 2008, shortly after the incident, Claimant filed an Inmate Grievance Complaint, which requested that he "be given proper medical treatment and the bottom step in South Hall be fixed" (Claimant's Exhibit 8). The Inmate Grievance Review Committee reported on October 1, 2008 that "Per investigation, bottom step has been repaired (South Hall); advise grievant to address medical concerns through sick call" (Claimant's Exhibit 1). Claimant appealed to the Superintendent and the Superintendent's determination was issued October 20, 2008, stating: "Housing unit step in question was inspected on September 25 and no crack was found. Investigation indicates that grievant received appropriate medical treatment" (Claimant's Exhibit 8). Claimant appealed this determination alleging that there was a crack and that it was fixed around September 25, 2008, but the Central Office Review Committee upheld the determination of the Superintendent (see Claimant's Exhibit 8).
On December 4, 2008, Mikhail Gusman, MD, a DOCS physician at Eastern, sought approval to have Claimant receive physical therapy. The Doctor's request for consultation stated:
PATIENT HAS MORBID OBESITY, WEIGHT 338. PATIENT TWISTED HIS BACK IN AUGUST. PAINS AND DIMINISHED ROM IN LS SPINE. CAN NOT BEND. RECEIVES FLEXERYL AND MOTRIN W/O SIGNIFICANT IMPROVEMENT. X-RAYS OF DEGENERATIVE SPONDYLOSIS. NEEDS PT EVALUATION ANFD [sic] TREATMENT
(Claimant's Exhibit 2, Health Services System Request and Report of Consultation). According to his medical records, Claimant received physical therapy from January 8, 2009 through June 2, 2009 (Claimant's Exhibits 4 and 7). Claimant was evaluated by an outside consultant on March 20, 2009, was measured for a back brace on April 23, 2009, and received his back brace on May 14, 2009 (see Claimant's Exhibit 2). While Claimant was denied additional physical therapy in August 2009, he was referred to a pain specialist in September 2009 (see Claimant's Exhibit 2).On December 29, 2009, Claimant underwent an MRI of his lumbar spine. The doctor's report from that evaluation states:
While the medical records before the Court do not appear to be complete to the date of trial, there is evidence of additional physical therapy in October 2011 (see Claimant's Exhibit 7). Claimant also testified that he was issued a cane for walking, but the Court has seen no evidence of that in the admitted medical records. The record does contain numerous DOCS records, entitled "Medical Excuse/Permit," which document that Claimant periodically received a variety of restrictions to his daily routine to address his condition including cell confinement, no stairs, no heavy lifting, no strenuous exercise or competitive physical sports (see Claimant's Exhibit 5).
Poor quality study due to patient's large body size.(Claimant's Exhibit 4).
Large disc herniation, right paramedian, at L5-S1.
Small central subligamentous disc herniation at L2-3.
Mild degenerative disc changes seen elsewhere. No gross stenosis of the neural foramina.
To prove a prima facie case of negligence, Claimant must establish the existence of a duty, the breach of the duty, and that the breach of the duty was a proximate cause of the damages sustained (see Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981], rearg denied 54 NY2d 831 [1981]). In this case, Defendant is obligated to maintain its prison "property in a reasonably safe condition in view of all the circumstances" (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]). Defendant is not, however, an "insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]). Thus, while Defendant has a duty to maintain its property in a reasonably safe condition, the burden is upon Claimant to show that Defendant breached that duty. In a premises liability case such as this, Claimant must prove that there was an unsafe or dangerous condition on the premises and that Defendant either created the dangerous condition, or that Defendant had actual or constructive notice of a dangerous condition and failed to take appropriate remedial action (see Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]). To constitute constructive notice, "a defect must be visible and apparent and it must exist 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]).
Whether a dangerous or defective condition exists in the first place "depends on the peculiar facts and circumstances of each case and is generally a question of fact . . ." (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks and citation omitted]). The issue here is whether the gouge in the bottom step, alleged by Claimant to have caused his fall, constituted a dangerous condition. Claimant testified that he used the staircase a few times every day. Shortly after arriving at Eastern, Claimant was assigned to work in the Mess Hall and would walk to work from his cell and back using these stairs Monday through Friday. He did this for approximately six months without incident, and also used the stairs to walk to sick call and back periodically without incident, although Claimant testified that he had previously noticed the gouge. In addition, Claimant also testified that when he descended the stairs at 6:00 A.M. on September 11, 2008, it was dark and he had just awoken from sleep. On cross-examination, Claimant conceded that there was a handrail on the left side of the stairs (as one is descending), but that he did not use the handrail because he was very familiar with the stairs.Claimant also testified that he walks pigeon-toed, though there was no evidence of that in his medical records, and he further testified that it was the tip of his boot that got caught on the gouge in the bottom step.
Claimant did not allege in his Claim or Notice of Intention to File a Claim that the stairs were inadequately lighted. Furthermore, although Claimant testified that it was dark when he awoke to go to work, he did not testify that there was insufficient light to see the steps.
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After listening to the witnesses testify and observing their demeanor as they did so, the Court credits the testimony of Mr. Pereira, an experienced mason, and Officer Conner, regarding the size of the gouge. Claimant's memory regarding the gouge was weak at best. Moreover, Claimant's description of the gouge, if accurate, would have made it too large to be missed by Officer Conner and would have required much more material for Mr. Pereira to repair it. In contrast, the small gouge described by Mr. Pereira, which went unnoticed by the officer that walked the stairs daily, could not reasonably be considered a dangerous condition. Indeed, a right foot stepping on the tread of the bottom step (as one is descending) would not likely come in contact with a small gouge in the far right corner of the tread that extended only two and one-half inches. That is because the wall along the right of the stairs would act as a barrier to the shoulder of the person descending the stairs, and a normal step is at least several inches inside the shoulder line. Moreover, despite the daily use of the stairs by many inmates and officers, including Claimant and Officer Conner, there is no evidence of other trips or falls to indicate that the last step was a dangerous condition or otherwise difficult to negotiate (see e.g. Bowers v State of New York, 241 AD2d 760, 761 [3d Dept 1997]). The Court concludes, therefore, that the gouge was not a dangerous condition, but rather constituted nothing more than a trivial defect because it did not act as a trap or nuisance to anyone walking normally up and down the stairs. While Claimant fell at the bottom of the stairs, and the Court is sympathetic that Claimant fell, the preponderance of the evidence does not support Claimant's allegation that the bottom step constituted a dangerous condition. As a result, the Court concludes that the gouge did not cause Claimant's fall, but rather that the cause of Claimant's fall was his own inattentiveness.
Nevertheless, even if the gouge was a dangerous condition, there is no credible evidence in the record that Defendant created the gouge or had actual or constructive notice of it. While Claimant testified that he reported the gouge to an officer, he could not testify when or to whom he reported it, and the Court found that testimony not credible. Nor was any written report or complaint of a defect offered for evidence. Furthermore, according to the most credible testimony, the gouge was essentially invisible and not apparent to the officer who regularly climbed up and down the stairs.
Finally, the Court notes that Claimant did not offer any proof that his fall on September 11, 2008 was the proximate cause of his back injuries as set forth in his medical records. While Claimant proved through his medical records that he has degenerative spondylosis and disc herniations, the record here lacks an expert medical opinion that such conditions were or could have been caused by the fall. Failure to present expert medical opinion on the proximate cause of those injuries is fatal because such information lies outside the general experience and knowledge of a layperson.
After hearing the testimony of the witnesses and observing their demeanor, and weighing all the evidence, the Court finds that Claimant did not prove by a preponderance of the credible evidence that the gouge in the step constituted a dangerous condition or, alternatively, that Defendant had actual or constructive notice of any defect. Therefore, Claimant has not met his burden to prove that Defendant breached its duty to maintain its property in a reasonably safe condition. In addition, Claimant did not prove by a preponderance of the credible evidence that his fall was the proximate cause of his degenerative spondylosis and herniated discs. Therefore, Claim No. 116985 is dismissed. Any motions yet undecided are hereby denied.
Let judgment be entered accordingly.
March 21, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims