Opinion
# 2017-041-512 Claim No. 124355
12-14-2017
MICHAEL TOLLIVER v. THE STATE OF NEW YORK
LAW OFFICE OF BEVERLY BENJAMIN-GEORGE, P.C. By: THE VESSUP LAW FIRM Kareem R. Vessup, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Defendant is found 70% liable after trial, with inmate-claimant's culpable conduct in slip and fall claim assessed at 30%, where evidence showed that defendant had notice of recurring dangerous condition caused by water leaking from washing machines and/or PVC pipe, resulting in facility's slop sink floor becoming wet and slick, a condition which the inmate-claimant had observed on prior occasions.
Case information
| UID: | 2017-041-512 |
| Claimant(s): | MICHAEL TOLLIVER |
| Claimant short name: | TOLLIVER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124355 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | LAW OFFICE OF BEVERLY BENJAMIN-GEORGE, P.C. By: THE VESSUP LAW FIRM Kareem R. Vessup, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 14, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Michael Tolliver (claimant) alleges that, while an inmate at Franklin Correctional Facility (Franklin), he slipped and fell on December 21, 2012, on a wet floor, in the slop sink area immediately adjacent to the laundry room of G-1 dorm, and fractured his left wrist. Claimant further alleges that defendant negligently permitted water known to leak from the laundry room washing machines to become a dangerous condition, which caused his fall and resultant injuries. Trial of the claim was conducted May 3, 2017.
"Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens" (Preston v State of New York, 59 NY2d 997, 998 [1983]). "It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).
The State's liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known, that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).
Constructive notice is shown where the defendant "was aware of an ongoing and recurring unsafe condition which regularly went unaddressed" (Kivlin v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]; see Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1208 [3d Dept 2010]). Put another way, when a property owner has "actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific recurrence of that condition" (Columbo v James River, II, Inc., 197 AD2d 760, 761 [3d Dept 1993]; see Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008], appeal dismissed 11 NY3d 770 [2008]; Vincent v Landi, 101 AD3d 1565, 1566 [3d Dept 2012]) .
The Court, upon review of the trial evidence, finds that defendant had both actual and constructive notice of the dangerous condition of wet floors in the G-1 dorm laundry room and in the slop sink area where claimant slipped and fell on December 21, 2012.
Defendant had constructive notice of the dangerous condition. Between July 9, 2012 and the date of claimant's fall, December 21, 2012, no fewer than nine work orders (Exhibits 1-9) were generated at Franklin to address and fix leaking washing machines in the laundry room of G-1 dorm, establishing beyond doubt that washing machine leaks and wet floors were a recurring condition which defendant had reasonable opportunity to observe and remediate, to say nothing of defendant having actual notice of previous instances of leaking water and wet floors.
Additionally, defendant had actual notice of the dangerous condition which caused claimant's fall on December 21, 2012. On December 18, 2012, the ninth mentioned work order (Exhibit 9) noted that in the G-1 laundry room, "Drain pipe busted. Water leaks when washers are in use."
This work order was not addressed and the noted condition corrected until after claimant had fallen. The noted condition was corrected on either December 24, 2012 or December 28, 2012 (see Exhibits 9 and F, respectively), either six days or ten days after the work order had been written, and subsequent to claimant's fall.
The trial record made abundantly clear that the laundry room floor frequently became wet with puddled water in the later half of 2012 by reason of either a leaking washing machine or a cracked PVC pipe behind the washing machines that drained water from the machines, or both. The washing machines sat on a concrete slab, and there was a one to two inch aperture between the concrete slab and the rear wall of the laundry room, immediately adjacent to the slop sink room. The trial proof, both testimonial and documentary, also established, without contradiction, that claimant slipped and fell in the slop sink room that was immediately adjacent to the laundry room (the physical layout of the laundry room and the slop sink room are well depicted by photographic Exhibits 19, 20 and B).
The critical issue upon which potential defendant culpability turns is whether the water leaking in the laundry room, an obvious and self-evident dangerous condition, additionally caused the floor in and around the slop sink room to become wet and dangerous.
Claimant credibly testified to the following:
1) That the laundry room floor was puddled with water in the week before his accident (Trial Transcript, hereafter "TT," pp 168-173);
2) That he had previously observed times that the laundry room "water accumulated to a point where the slop sink area was affected by the leaking condition" (TT, pp 172-173);
3) That water leaking from the washing machines and/or from the draining PVC pipe would leak along the rear wall of the laundry room, immediately adjacent to the slop sink room, and would pool three to four inches from the slop sink room threshold (TT, pp 175-182);
4) That water was puddled in the slop sink room on the day of his fall, claimant concluding his testimony, "There was a puddle of water on top of - - I thought it - - at first, I thought it was a drain that was plugged, but now I come to realize that it's - - how would you describe it, it's something they use to snake the pipe to clean it. There was a - - the puddle of water, because the plug that's there, there was a puddle of water on the plug, that little area in the slop sink area" (TT, pp 180-183);
5) That within seconds of entering the slop sink room to wash his cooking utensils and pots and pans on the evening of December 21, 2012, claimant slipped and fell on a wet floor and, in the process, banged his left arm against the edge of the slop sink (TT, pp 188-192 and p 221);
6) That claimant reported being injured and sought medical attention on the evening of his fall (TT, pp 193-199); and,
7) That claimant, prior to his fall, was well aware ("absolutely") of the propensity for leaking washing machines to cause puddling of water in the G-1 laundry room (TT, pp 160-162).
Claimant's credited testimony is further supported by Exhibits 19 and 20, which clearly show the close proximity of the slop sink room to the washing machines' leaking water that would flow along the rear wall of the laundry room, in the immediate area of the slop sink room threshold.
Given the regularity with which the laundry room flooded, the manner in which it flooded, water coursing through a small opening which guided the leaking water along the rear wall and emptying into the laundry room within inches of the slop sink room threshold, that the flat floor of the slop sink room contained a drain that was plugged (see TT, pp 66-69), and claimant's testimony of having observed puddled water in the slop sink room the evening of his fall, the Court finds that, based upon the credible and persuasive trial evidence, water that had leaked was puddled in the slop sink room on the evening of December 21, 2012. Said another way, the claimant proved by a preponderance of the credible evidence that water leaking from the washing machines and/or PVC pipe, in addition to causing water to slicken the laundry room floor, caused the slop sink floor to become wet and slick, and caused the dangerous condition upon which claimant slipped and fell on December 21, 2012.
As such, the Court concludes that defendant's negligence caused a dangerous condition, of which defendant had notice, and that defendant's negligence proximately caused claimant's fall and injuries.
On the day of his accident, claimant failed to avoid accumulated water that he, prior to his fall, observed to be puddled in the slop sink room. That fact, combined with claimant's testimony acknowledging that he was well aware that the laundry room had frequently flooded previously, and that he had previously observed that flooding to have affected the slop sink area, implicate a measure of claimant culpability for his fall.
By reason of all of the foregoing, the Court finds that defendant is 70% culpable and that claimant is 30% culpable for claimant's fall on December 21, 2012, and for the injuries claimant thereby sustained.
All motions not previously decided are hereby denied.
Let interlocutory judgment be entered accordingly. A trial on damages will be scheduled as soon as practicable, upon consultation with the parties.
December 14, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims