Opinion
# 2015-040-018 Claim No. 114414
04-17-2015
KEVIN VANDERPOOL v. THE STATE OF NEW YORK
GULLO & ASSOCIATES, LLC By: Cristina Carollo, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Claimant fell in shower area of C.F. bathroom. Court finds Claimant failed to establish State was negligent.
Case information
| UID: | 2015-040-018 |
| Claimant(s): | KEVIN VANDERPOOL |
| Claimant short name: | VANDERPOOL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114414 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GULLO & ASSOCIATES, LLC By: Cristina Carollo, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 17, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Kevin Vanderpool, failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with injuries he sustained on September 27, 2007 in a slip and fall accident. The accident occurred in the inmates' bathroom of the D-1 dormitory at Wallkill Correctional Facility ("Wallkill") in Wallkill, New York.
A bifurcated trial, addressing liability issues only, was held on October 21, 2014 at the Court of Claims in Albany, New York. There were three witnesses: Claimant; Correction Officer ("CO") Nicholas Gallo, who was on duty at the time and responded to Claimant's accident; and Arthur Nelson, Wallkill's maintenance supervisor. Thereafter, the parties were granted additional time to submit post-trial memoranda.
FACTS
On September 27, 2007, at about 6:30 p.m., Claimant entered the D-1 bathroom at Wallkill intending to take a shower. He did not have to wait for a stall to become free, but rather immediately was able to occupy the middle of three shower stalls. He was dressed in his undershorts and wearing flip-flop sandals. The showers on either side of Claimant's stall were in use and water was running in them at the time. Before he turned on the water in his own stall, however, Mr. Vanderpool left the shower in order to use the toilets located on the other side of the bathroom. On his way back to the shower, Claimant slipped and fell forward, striking his head on the tiled lip, or threshold, of the showers, sustaining injuries to his face (see Ex. C [inmate injury report]; Ex. 2-A [Claimant identified the photograph as the D-1 bathroom, depicting the three shower stalls and the only drain in the floor area. Claimant indicated that a slop sink was beyond the right hand edge of the picture beyond the green arrows]; Ex. 2-B [The green dot indicates where Mr. Vanderpool's feet were located en route from the toilets back to the shower when he fell and the larger green mark and arrow points to the tiled lip of the stalls where Claimant hit his face]). Mr. Nelson has been employed by the Department of Corrections ("DOCS") since 1995 and the maintenance supervisor at Wallkill for the past 10 years. He explained that the black stripes visible on the floor of the bathroom in the photograph that is Exhibit 2 are anti-skid strips to help secure the footing of people in that area and provide them with traction.
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision.
The parties stipulated that 99 inmates were housed on the first floor of the C and D housing units on the day of the accident (see Ex. A [logbook confirms count total]), and that the C-1 bathroom was closed at the time (see Ex. 1). Thus, those 99 inmates all used the D-1 bathroom. Claimant said, however, that there were no more than 10 inmates in the D-1 bathroom at the time of the accident, three (including himself) using the showers, three using the urinals, a few inmates at the slop sink and a couple more at the bathroom sinks.
Mr. Vanderpool said that the tile floor of the bathroom was always wet during the several months he was at Wallkill prior to his accident and that the cause was leaky showers and toilets. Shower curtains that did not reach the floor allowed additional water to splash onto the floor (see Ex. 2-A [shower curtains visible]). Moreover, the slop sink had low side walls which resulted in further frequent splashes occurring. It also lacked a drain so that any liquids in the slop sink had to be removed by inmates using squeegees. He said that the inmates also used two squeegees to push any water on the floor into the one drain in the bathroom floor (see id. [drain visible in front of tiled lip of showers]). Mr. Vanderpool also said that there were no mats on the bathroom floor. He saw water on the bathroom floor before he fell on September 27, 2007.
CO Gallo began his career with DOCS in January 2007, and worked the afternoon shift on September 27, 2007 on the first floor of the C and D housing unit at Wallkill. Among his responsibilities that day, CO Gallo made periodic rounds of the housing unit to ensure the proper care, custody, and control of the inmates under his supervision. Each of those rounds typically took about five minutes to complete and required an inspection of the dormitory rooms, as well as the various common areas, including hallways, stairwells, recreation rooms, and the D-1 bathroom. The officer said that he would walk into the bathroom and spend about 30 seconds there, unless he discovered something unusual. He agreed that it was not part of his normal procedure to bend down and touch the bathroom floor to check if it was wet. CO Gallo made a half dozen such rounds of the housing unit between 3:00 p.m., when the officer's shift began, and the time of Claimant's accident, with the last one being at 6:24 p.m., or about six minutes prior to Mr. Vanderpool's fall (see Ex. A [housing unit C-1/D-1 logbook for September 27, 2007]). In each instance, CO Gallo's logbook entry indicates that he found everyone and everything to be safe and secure when he made his rounds (see id.). He said that he would immediately close any area, including the bathroom, if he found an unsafe condition and any such action also would be noted in the logbook.
CO Gallo said that he had only a vague recollection of Claimant's accident. At about 6:30 p.m., an inmate reported to him that Claimant had fallen in the shower area of the D-1 bathroom (see Ex. A; Ex. D [memorandum from CO Gallo to a Sergeant Delamater]). CO Gallo testified that he found Mr. Vanderpool on the floor with a pool of blood around his head, whereupon the officer alerted the sergeant, who called the response team. CO Gallo did not recall there being an excessive amount of water on the bathroom floor. He noted that the pool of blood around Mr. Vanderpool's head was not diluted, which the officer thought would not be the case if the floor was very wet.
Claimant said that, prior to his accident, he and other inmates made verbal complaints to COs about the wet condition of the bathroom floor. He agreed, however, that he made no such complaint to the COs on duty on the day of his accident. He further agreed that he never made a written complaint, or filed a grievance, about the wet bathroom floor before he fell. CO Gallo could not recall having received any specific complaint about a wet bathroom floor in the D-1 bathroom at any time prior to Claimant's accident, but said such complaints did occur, on occasion, concerning bathrooms at Wallkill generally. Whenever he did receive such a complaint, CO Gallo said that he inspected the area as soon as practicable and, if needed, sent porters in to clean the area.LAW
To establish a prima facie case of negligence in a slip and fall case, 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, 660-661 [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, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; 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]; Preston v State of New York, 59 NY2d 997, 998 [1983]). 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]; Davis v Rochdale Vil., Inc., 63 AD3d 870, 870-871 [2d Dept 2009]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]). A claimant "can establish constructive notice through evidence that the defendant 'was aware of an ongoing and recurring unsafe condition which regularly went unaddressed' " (Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008], appeal dismissed 11 NY3d 770 [2008], quoting Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]). Thus, a property owner who has "actual knowledge of the tendency of a particular dangerous condition to reoccur" also can be "charged with constructive notice of each specific reoccurrence of that condition" (Weisenthal v Pickman, 153 AD2d 849, 851 [2d Dept 1989]).
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, 851 [1985]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Finally, a claimant has the duty to use reasonable care to observe his or her surroundings and to see what is there to be seen (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]).
DISCUSSION
The Court has considered all the evidence, including a review of the exhibits and listening
to the witnesses testify and observing their demeanor as they did so. The witnesses provided generally credible and sincere testimony. Nevertheless, 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.
Claimant did not establish that a dangerous condition existed on the date of the accident. "Whether a condition is dangerous requiring the landowner to take remedial measures depends upon the context or environment within which the condition is found" (Streeter v State of New York, UID No. 2005-028-001[Ct Cl, Sise, P.J., Jan. 31, 2005). "[L]andowners will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property and that could be reasonably anticipated by those using it" (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003], lv denied 3 NY3d 604 [2004]). Thus, water on the floor of a health club locker room walkway that was adjacent to a shower room was "necessarily incidental" to the use of the showers and "did not by itself constitute a dangerous condition" (O'Neil v Holiday Health & Fitness Ctrs. of N.Y., 5 AD3d 1009, 1009 [4th Dept 2004]). The Court also notes that a prison guard was denied accidental disability retirement benefits after a fall under circumstances where he knew that a corridor floor could be wet if prisoners failed to close a curtain that separated the corridor from a shower area. The hazard posed was one the guard could readily anticipate and, as such, did not result from an unexpected event (Matter of Jonigan v McCall, 291 AD2d 766 [3d Dept 2002]).
Mr. Vanderpool said that, in his experience, the tile floor of the bathroom was always wet because of leaky fixtures and splashing water from showers and the slop sink. What Claimant did not say, however, was how wet the floor was. Even when his counsel asked him, "when you say wet, are [the floors] damp, or are they soaking wet," Mr. Vanderpool replied only that they were wet. Asked if there were puddles, he said "it was like constant water." He said that water always flowed over the tile lip or threshold of the showers and that fixtures leaked. He did not indicate, however, if those leaks amounted to drips and splashes, or if, instead, great spumes of water cascaded from the fixtures and the shower threshold, or, indeed, something in between.
All quotations not otherwise attributed are from the electronic recording of the trial and/or the Court's notes.
CO Gallo, on the other hand, declared the C-1/D-1 housing block, including the D-1 bathroom, to be safe and secure after each of his rounds, including the one he completed only a few minutes prior to the accident, contemporaneous observations that do not support a conclusion that an excessive amount of water was on the floor. In this regard, the Court rejects any suggestion that CO Gallo's inspection was somehow ineffective because he only spent about half a minute in the bathroom during each of his rounds, or because he did not stoop down to touch the bathroom floor with his hand in order to determine if it was wet. To the Court's mind, the brief visual inspections of the bathroom conducted during each of the officer's several rounds that afternoon were more than sufficient to reveal if the floor was inordinately wet so as to require remedial attention. Moreover, CO Gallo did not recall there being an excessive amount of water on the bathroom floor when he responded to the accident and noted that Mr. Vanderpool's blood was not diluted on the bathroom floor. Whatever the merit of Claimant's suggestion that his blood could have been flowing at such a rate as to mask or overcome any dilution caused by water, it suffices to note that the record provides no basis to establish that there were puddles, standing water, or any significant or inordinate accumulation of water present on the bathroom floor when Claimant fell.
As in another claim in which a claimant failed to quantify the amount of water on a bathroom floor, the Court concludes that the floor was moist or wet, but not abnormally so (see Price v State of New York, UID No. 2007-040-015 [Ct Cl, McCarthy, J., Mar. 19, 2007]). Rather, there appears to have been an amount of water that was common to, and to be expected in, such an area and, thus, an amount that was "necessarily incidental" to the use of the showers and bathroom (Conroy v Saratoga Springs Auth., 259 App Div 365, 367 [3d Dept 1940], affd 284 NY 723 [1940]; see Jackson v State of New York, 51 AD3d 1251, 1253 [3d Dept 2008]; Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept 2007]; Moore v State of New York, UID No. 2004-018-330 [Ct Cl, Fitzpatrick, J., Sep. 16, 2004).
Moreover, as in Matter of Jonigan v McCall (supra), Claimant was aware that the bathroom floor could be wet and, thus, should have reasonably anticipated it. In fact, he said that he saw water on the day of his accident so that he actually knew that the floor was wet. As such, the Court determines that the condition of the bathroom that existed was not unexpected.
Mr. Vanderpool also argues that overcrowding constituted a dangerous condition because the D-1 bathroom was the primary facility for 99 inmates on the day of the accident. He cites a regulation of DOCS concerning inmate cleanliness, health and morale which prescribes that there shall be at least one functioning shower for every 15 inmates housed in multiple occupancy housing units (7 NYCRR §1704.3 [b][4]).
Claimant also references a municipal rule that requires one shower for every eight prisoners in New York City correctional facilities (New York City, N.Y., Rules, Tit. 40, § 1-04 [c][3]), a rule that is inapplicable to DOCS.
Claimant's argument is unavailing for several reasons.
First, as Claimant himself notes, the specific mandate does not apply to housing units built prior to September 19, 1990 (id.). As Wallkill appears to have been constructed well before 1990 (see Matter of Witteck v Superintendent of Wallkill Correctional Facility, 48 NY2d 858 [1979]; People ex. rel. Boutelle v O'Mara, 55 AD2d 804 [3d Dept 1976]), and Claimant offered no evidence to the contrary, the Court determines that the requirement does not apply in this instance. Second, the limitation on the mandated ratio of one shower for every 15 inmates is subject to a general proviso that housing units contain a sufficient number of showers (as well as toilets and sinks) to assure the personal hygiene of the inmates housed therein. No evidence was presented to establish that the personal hygiene of the inmates in the C-1/D-1 housing units was neglected solely on account of the number of inmates using the D-1 bathroom. Claimant did not testify that he or any other inmates in those units were denied the opportunity to shower, or otherwise tend to their personal hygiene needs. At most, the record suggests that the bathroom may have been crowded at times so that some inmates might elect to shower during off-peak hours, as Claimant himself did when he went to shower in the early evening of September 27, 2007.
Third, and most importantly, there is no evidence in the record to support the theory that overcrowding was a factor in Claimant's accident. Claimant said there were perhaps 10 inmates in the bathroom when he fell in a facility that included three showers, three urinals, some unidentified number of toilets, at least four bathroom sinks (see Ex. 2), as well as a slop sink. Mr. Vanderpool did not have to wait to be able to use a shower. Thus, the Court concludes that the bathroom was not taxed beyond its capacity at the time of the accident. Likewise, there was no testimony that some large number of inmates had lately been in the bathroom only to decamp just prior to Mr. Vanderpool's arrival at about 6:30 p.m., leaving in their wake an excessive amount of water on the floor.
Moreover, assuming, arguendo, that the wet floor constituted a dangerous condition, Claimant did not establish that Defendant either created it, or had actual or constructive notice of its existence. There is no evidence that Defendant created the condition. As to notice, no evidence was presented regarding other slip-and-fall accidents in the bathroom. Mr. Vanderpool said that he did not complain to the COs on duty about the condition of the bathroom floor on September 27, 2007. The Court deems his generic assertion that he and others complained verbally about wet bathroom floors prior to his accident, without providing any particular details or specific dates, is insufficient to establish that Defendant had actual notice concerning the wet condition of the bathroom floor.
Because Claimant failed to establish the existence of a dangerous condition on the date of the accident, the Court further concludes that his verbal complaints, likewise, failed to establish that Defendant had actual knowledge of an ongoing and recurring dangerous condition so that the State could be held to have constructive notice of the condition on September 27, 2007 (see Streeter v State of New York, supra; Perez v State of New York, UID No. 2005-010-038 [Ct Cl, Ruderman, J., June 28, 2005]).
To be sure, there are limits to the risks "necessarily incidental" to showers and bathrooms. Hence, a slippery condition was not "necessarily incidental" to the use of a student locker room where showers, equipped with a drying area, were located at least 20 to 30 feet away from the site of the accident (Van Stry v State of New York, 104 AD2d 553 [2d Dept 1984]). As in Price v State of New York, supra, however, those limits have not been breached in this case.
Claimant also failed to establish that Defendant had constructive notice of the wet floor. To constitute constructive notice, the wet floor would need to have been visible and apparent and the condition must have existed for a sufficient length of time prior to the accident to permit Defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). The Court already has determined that the floor was moist or wet, but not abnormally so. CO Gallo declared the housing unit, including the bathroom, to be safe and secure scant minutes before the accident and he could not recall any excessive water on the floor when he came to Mr. Vanderpool's aid after he fell. Thus, the Court concludes that the amount of moisture on the bathroom floor was insufficient to create a condition that was, or should have been, visible and apparent to the officer, much less one that existed for a sufficient period of time to permit its discovery and remediation (see Guttierez v Lenox Hill Neighborhood House, 4 AD3d 138, 139 [1st Dept 2004]). Claimant's testimony establishes, at most, that some verbal complaints about wet floors were made at unspecified date(s) prior to his accident. A general awareness that the floor could become wet from time to time is legally insufficient to constitute actual or constructive notice of the particular condition that allegedly caused the accident (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Gallais-Pradal v YWCA of Brooklyn, 33 AD3d 660 [2d Dept 2006]; Gibson v State of New York, 13 Misc 3d 1244[A], *5 [Ct Cl 2004]; Reid v State of New York, 8 Misc 3d 1007[A], *4 [NY Ct Cl 2005]).
Claimant also suggests that Defendant breached a duty to him by failing to place a floor mat in the bathroom. Other courts have declined, however, to find liability in similar cases. "If the Court were to accept that argument, then all lavatory rooms similar to the subject one would have to have wall-to-wall mats, since water is inevitably tracked throughout such lavatory rooms by persons who take showers and use wash basins. There is no such requirement in the law. Lavatory room floors, where there are shower stalls and wash basins, are wet by their very nature. That is a fact of life" (Figueroa v State of New York, UID No. 2003-019-008 [Ct Cl, Lebous, J., Sep. 29, 2003], quoting Cuevas v State of New York, Claim No. 85501 [Ct Cl, Hanifin, J., Jan. 13, 1997]; see also Traub v Progress Country Club, Inc., 256 App Div 249 [1st Dept 1939]; Edwards v State of New York, UID No. 2009-030-001 [Ct Cl, Scuccimarra, J., Jan. 12, 2009]; Moore v State of New York, supra). This Court declines to reach a different conclusion in this instance.
Accordingly, Defendant's motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed.
The Chief Clerk is directed to enter judgment accordingly.
April 17, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims