Opinion
# 2012-040-008 Claim No. 113803
02-03-2012
TUCKER v. THE STATE OF NEW YORK
Synopsis
Pro se Claimant failed to establish that Defendant was negligent when Claimant hit his head on a television stand and, later, when the TV fell on him. Case information
UID: 2012-040-008 Claimant(s): EDWARD TUCKER Claimant short name: TUCKER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113803 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Edward Tucker, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG Third-party defendant's attorney: Signature date: February 3, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Edward Tucker, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on September 19, 2006, when he hit his head on a television stand and later had the TV fall on him in the infirmary waiting room at Franklin Correctional Facility located in Malone, New York ("Franklin"). He alleges that Defendant was negligent in that the TV stand was too low and that the TV was not properly fastened to the stand and constituted a dangerous or defective condition.
The trial of this Claim was held by video conference on December 9, 2011, with the parties at Upstate Correctional Facility in Malone New York, and the Judge at the Court of Claims in Saratoga Springs, New York. There were two witnesses: Claimant; and a New York State employee, Ms. C. Johnston, R.N., a nurse at Franklin.
Claimant testified that, on September 19, 2006, he went to Franklin's infirmary at approximately 8:00 p.m., with about 75 other inmates, to get his medication. He stated that a correction officer gave him a direct order to sit on a bench and the only space available was under a TV sitting on a stand located about two to three feet over Claimant's head. Approximately 30 minutes later, he was still waiting, when the inmates were directed to return to their cellblocks. An inmate bumped into the TV stand as Claimant was getting out of the chair, and the TV fell on Claimant's head. Claimant asserts that Defendant was negligent because the TV should have been bolted to the TV stand.
The State submitted into evidence, without objection: Exhibit A, the Inmate Injury Report concerning Claimant's injury; Exhibit B, an Inmate Grievance Complaint filed by Claimant regarding this incident; and Exhibit C, Claimant's Notice of Intention to File a Claim that he served upon Defendant. The Inmate Injury Report, which was completed by Nurse Johnston shortly after the accident, indicates that Claimant stated "I stood up and hit my head on the corner of the TV" (Ex. A). Claimant testified, however, that this is not what he told Nurse Johnston. Rather, Claimant asserted that he signed a blank form and that Nurse Johnston filled in the words afterwards. On September 21, 2006, two days after the incident, Claimant filed an Inmate Grievance Complaint form which states that, as he stood, he was hit in the head by the television and the stand (Ex. B). At trial, Mr. Tucker disavowed that statement, saying that he told an inmate grievance representative that another inmate had bumped into the TV and it fell on his head, but that the representative wrote the different account of the accident, in that person's own words, that is contained in the grievance complaint. He agreed, however, that he did read the grievance before he signed it. Mr. Tucker further agreed that he did prepare the Notice of Intention, which was received by the Defendant on November 16, 2006. In it, Claimant stated that, as he went to sit in the chair, he hit his head on the TV stand and that, when he stood back up, the TV fell and hit him on the head (Ex. C).
Nurse Johnston testified that she has been a registered nurse for 18 years, is currently employed by the State and worked at Franklin from October 2005 until 2011. She stated that, from October 2005, when she began working at Franklin, until the date of Claimant's injury, she was not aware of the TV in the infirmary waiting area falling, or of any other inmate being injured by the TV or the TV stand. She further stated, upon review of the Inmate Injury Report (Ex. A) that she saw Claimant approximately five minutes after he was injured; that he had a laceration of about 1½ inches on the right side of his head, that he was not complaining of headache, dizziness, nausea or vomiting, did not have blurred vision and did not lose consciousness. She cleaned his wound and applied steri-strips. She also stated that she recorded Claimant's exact words as to how the injury happened on Exhibit A and that only then did Claimant sign the document.
To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, [3d Dept 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept 2007]; DeLuke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, Ct Cl, Claim No. 107632, June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Thus, the State does have a common-law duty to maintain its facilities "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," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]). "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 [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]).
The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). Moreover, the State is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Heliodore v State of New York, supra; Bowers v State of New York, supra). Finally, a 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 39, 42 [1917]).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to meet his burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with his accident.
As a preliminary matter, the Court concludes that Claimant was less than forthright in his testimony as to how the accident occurred. In three documents, two written shortly after the incident (Exs. A and B) and the third being his Notice of Intention to File a Claim (Ex. C), Claimant stated that he hit his head on the TV stand when he stood up, causing the TV to fall. The Court finds Claimant's testimony disavowing the versions of events related in Exhibits A and B to be self-serving and not credit-worthy. Similarly, the Court gives no weight to Claimant's testimony that another inmate hit the stand causing the TV to fall. Rather, the Court credits and relies upon the description of the accident in Exhibits A, B and C. The Court finds Claimant failed to establish by a preponderance of the credible evidence that the TV and the TV stand constituted a dangerous condition. However, assuming arguendo that the TV and the TV stand did constitute a dangerous condition, the Court further finds that Claimant failed to establish by a preponderance of the credible evidence that Defendant created, or had actual or constructive notice of, the condition of the TV and the stand. The evidence established that there were no prior complaints or accidents regarding the TV and the stand. The Court concludes that the record is insufficient to sustain Mr. Tucker's assertion that Defendant had notice that the stand was dangerous or defective.
Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with his Claim and the Claim is dismissed. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
February 3, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims