Opinion
# 2014-009-102 Claim No. 116640
06-26-2014
ROBERT SMILEY v. THE STATE OF NEW YORK
STANLEY LAW OFFICES, LLP BY: Joseph P. Stanley, Esq., and Keith Young, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Patricia M. Bordonaro, Esq., Assistant Attorney General, Of Counsel.
Synopsis
The Court found the State 50% liable for injuries suffered by claimant in a slip and fall which occurred at University Hospital in Syracuse.
Case information
| UID: | 2014-009-102 |
| Claimant(s): | ROBERT SMILEY |
| Claimant short name: | SMILEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116640 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | STANLEY LAW OFFICES, LLP BY: Joseph P. Stanley, Esq., and Keith Young, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Patricia M. Bordonaro, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | June 26, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Robert Smiley seeks damages for injuries suffered by him when he slipped and fell while exiting University Hospital (Upstate) on December 27, 2007. The trial of this claim was bifurcated, and this decision relates solely to the issue of liability.
Claimant testified that on December 27, 2007, the date of the accident, he was working as a chef for Compass USA, the food service provider for Upstate. He testified that he had worked for this entity for several months, and that he always entered and exited through the main lobby of the hospital. He testified that he had just completed working the 2:00 p.m. to 7:00 p.m. shift that day, and was leaving the hospital with several other people who had also just completed their shift. He testified that he exited the elevator on the main floor and then had to make a lefthand turn outside the elevator in order to reach the lobby. He testified that he was walking with several other people and looking straight ahead at the lobby doors, and not at the floor, when he slipped and fell approximately 20 feet from the front lobby doors.
Claimant testified that when he fell, he hit his elbow, but that he was able to immediately stand up on his own after the fall. However, he noticed that his pants were damp and that the floor was wet where he had fallen. Claimant testified that a security guard came over to him and offered assistance, but that he (claimant) told him he did not need medical assistance, and that he left the hospital through the lobby doors without any assistance, and got into his car where his girlfriend was waiting for him.
Claimant testified that he did not notice any "wet floor" signs or any caution signs on the floor either before or after his fall, and that he did not notice any mats or carpets on the lobby floor.
John Stalker, a security officer at Upstate, was also called as a witness by the claimant. Mr. Stalker testified that at the time of the accident, he was employed by Securitas, a private company which provided security services to Upstate. He testified that he was working at Upstate on the day of the accident, and was stationed at the desk in the main lobby of the hospital at the time. Mr. Stalker testified that he witnessed claimant's slip and fall.
Mr. Stalker testified that immediately prior to claimant's fall, he had observed claimant walking with a group of people toward the lobby doors. The group was walking fairly quickly, and after the group had passed by his desk, and as he observed the group proceeding to the exit, he saw claimant fall. Mr. Stalker testified that he immediately went to assist claimant, but that by the time he had reached him claimant was already standing and told Mr. Stalker that he was not injured. Mr. Stalker asked if claimant required any medical assistance; claimant responded that he did not and then proceeded to exit the lobby. Mr. Stalker testified that he prepared an accident report (Exhibit 1) detailing this incident.
Mr. Stalker also testified that he had observed a janitor mopping the floor in the same area prior to claimant's fall. He testified that the janitor used a floor cleaning machine and a dry mop to clean the lobby floor, and that the janitor cleaned the floor in sections, since it was such a large area. In his report, Mr. Stalker stated that "[t]he area had just been mopped by housekeeper Michael Malavenda," yet in his trial testimony Mr. Stalker stated that the area had been mopped approximately one-half hour prior to claimant's slip and fall. Mr. Stalker testified, however, that when he went to assist claimant, he looked down at the floor and acknowledged that it was "wet" or "damp."
Additionally, Mr. Stalker stated in his report that "a wet floor sign had been placed at the western edge of the wet area but not on the east edge, which was the direction from which Mr. Smiley had approached."
Finally, Mr. Stalker testified that the incident may have been captured by a video security camera covering the lobby, which was also indicated in his written injury report.
Michael Malavenda, a floor maintenance worker at Upstate, was also called as a witness by claimant. He testified that he worked the 6:00 p.m. to 2:30 a.m. shift on the date that claimant fell. He did not have any independent recollection of that particular day, but testified that hospital procedure required that the lobby floor be cleaned solely with the cleaning machine, and not with a wet mop.
He further testified that he always carries six wet floor signs with him, and that he would always try to place two of those signs by the elevator doors, so as to alert people leaving the elevators.
He also testified that he would not proceed to leave an area of the floor until it was completely dry, and that after using the cleaning machine he would drymop the area to ensure that it was dry before moving on to the next section.
Frank Tees, the Chief of University Police at Upstate, was also called as a witness, and testified with regard to the hospital's accident reporting system, as well as its use of security cameras. Mr. Tees testified that at the time of claimant's accident, the hospital utilized the Automatic Records Management System (ARMS) for reporting incidents. Mr. Tees confirmed that Exhibit 1 was such an ARMS report.
Mr. Tees also testified that at the time of this incident, there were surveillance cameras in use throughout the hospital, including the lobby area. He testified that hospital procedure required security personnel to note on their report if an incident occurred and if it was caught on camera. He testified, however, that there was no written policy to require security personnel to save the video of every incident that is recorded. He testified that video records were maintained for approximately 25 to 30 days at which time, if not saved, the video would be overwritten and re-recorded.
Mr. Tees testified that it was not the hospital's policy or regular course of business to download every incident or to preserve every incident that was caught on video, and that there was no reason to preserve the video of this incident (assuming that such a video existed) since claimant had immediately gotten to his feet, told security personnel that he was not injured, and walked away.
DISCUSSION
Shortly before trial, claimant instituted a motion in limine seeking sanctions for the spoliation of evidence (the videotape purportedly showing claimant's slip and fall which had not been preserved by Upstate or its security firm). Specifically, claimant requested that as a result of the destruction of this videotape, defendant's affirmative defense of comparative negligence should be stricken, or that an adverse inference should be granted due to defendant's failure to preserve this video. In a separate decision and order filed simultaneously herewith, this Court has denied claimant's request for sanctions.
See Decision and Order to motion number M-82257.
When the State acts as a landlord, it has a duty to maintain its premises in a reasonably safe condition in view of all the circumstances (Basso v Miller, 40 NY2d 233 [1976]; Miller v State of New York, 62 NY2d 506 [1984]; Preston v State of New York, 59 NY2d 997 [1983]). The State, however, is not an insurer of pedestrians on the premises of its institutions, and negligence cannot be inferred solely from the fact that an accident occurred (Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]). Furthermore, an individual has a duty to see and be aware of their surroundings, and to use reasonable care to avoid accidents (Weigand v United Traction Co., 221 NY 39 [1917]).
When a pedestrian is injured in a slip and fall accident, the claimant is required to establish that a dangerous condition existed; that defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and that such a condition was a substantial factor in the events which caused the injury to claimant (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
The credible testimony and evidence submitted at trial has established that claimant slipped and fell on the wet floor of the lobby as he was exiting the hospital shortly after 7:00 p.m. on December 27, 2007. Claimant testified that he was simply walking when he suddenly slipped and fell, and that as he was getting up he noticed that his pants were wet and that the floor was wet as well. This testimony was corroborated by Mr. Stalker, the security guard on duty in the lobby at the time, who actually witnessed claimant's slip and fall. Mr. Stalker testified that when he went to assist claimant immediately after the fall, he also noticed that the floor was wet. Additionally, Mr. Stalker noted in his incident report that "the area had just been mopped" by Mr. Malavenda, a housekeeper at Upstate.
Defendant argues that claimant did not conclusively establish that the slippery and wet condition was created by the State, and contends that is was just as likely that the wet floor was created by pedestrian traffic coming into the building, since the accident happened during the winter months on December 27, 2007. This contention, however, is nothing more than mere speculation, as there was no evidence or testimony presented by the State to suggest that there had been any precipitation immediately prior to the accident, nor was there any evidence or testimony to indicate that weather conditions had contributed to the wet and slippery condition of the floor.
Based on the credible testimony in the record, therefore, the Court finds and concludes that the floor had been recently mopped, and that at the time of claimant's slip and fall the lobby floor was wet and constituted a dangerous condition. Furthermore, since Mr. Stalker's testimony and incident report established that the lobby had been recently mopped by a hospital housekeeper, the Court further finds and concludes that this dangerous condition had been created by an employee of the defendant. Accordingly, the defendant had a duty to post adequate warnings of this dangerous condition, and testimony (again from claimant and Mr. Stalker) establish without contradiction that there was one warning sign which had been placed near the lobby entrance, but that no warning signs had been placed near the elevators on the opposite or east end of the lobby, the direction from which claimant was walking. The Court therefore finds that by failing to post adequate warning signs of the wet and slippery condition of the floor, the defendant violated its duty of care. The Court therefore finds that defendant must be found liable for the injuries suffered by claimant.
Based upon this determination, the Court must also consider whether any comparative negligence should be attributed to claimant. Claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY at 42). In this matter, claimant testified that he was walking briskly towards the exit, since his girlfriend was parked outside waiting to drive him home, and that he was looking toward the front doors and was not looking at the floor as he was walking. Additionally, claimant had not noticed that mats had been placed on the floor, and did not recall that those mats were present. Mr. Stalker, who witnessed the accident, testified that mats were in fact present, and that claimant was not walking on the mats, but was walking adjacent to them on the lobby floor, when he slipped and fell.
The Court therefore finds that claimant did not use reasonable care in observing his surroundings, and therefore must share culpability for his accident.
Accordingly, after considering the credible evidence and testimony presented at trial, the Court finds defendant 50% responsible for the injuries suffered by claimant in his slip and fall, based upon its failure to adequately warn of a dangerous condition which had been created by one of its employees. The Court further finds claimant 50% responsible due to his failure to use reasonable care.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
June 26, 2014
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims