Moss v State of New York

[*1] Moss v State of New York 2005 NY Slip Op 52046(U) [10 Misc 3d 1060(A)] Decided on September 7, 2005 Ct Cl Schweitzer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 7, 2005
Ct Cl

KENNETH MOSS, Claimant,

against

THE STATE OF NEW YORK, Defendant.



106197



For Claimant:

Kenneth Moss, pro se

For Defendant:

Hon. Eliot Spitzer

Attorney General of the State of New York

By:J. Gardner Ryan

Assistant Attorney General

Melvin L. Schweitzer, J.

Claimant Kenneth Moss commenced this action against Defendant, State of New York, to recover the value of personal property that was destroyed in a fire in his housing area at Fishkill Correctional Facility on December 31, 2001. At trial of this action, Claimant testified that on the day in question, he was at the facility's Medical Unit when he was informed that someone had set a fire in his housing cubicle. At the time, Claimant was assigned to Cubicle 47 located in Housing Unit 21.

The arsonist, who was subsequently identified as a result of an internal investigation, turned out to be someone that Claimant knew slightly. Claimant testified that sometime before this incident, he had had one "altercation" (Claimant's word) with this inmate. While on a work detail, Claimant discovered that the work crew was short one porter and asked the Correction Officer on duty to assign an inmate to clean the bathroom. The officer did so, selecting the same inmate who subsequently started the fire, informing him that Claimant had initiated the request. At trial, Claimant speculated this may have been the reason the inmate set his cubicle on fire, but he emphasized he knew of no reason for hostility other than the bathroom incident. He stated he had never been threatened by the inmate and described the inmate's action in setting the fire as a "total surprise."

The investigation into the fire revealed that after Claimant left his cubicle on the morning of December 31, the fire was set, with the arsonist making use of a butane-type lighter and a makeshift device created from the top of a can to keep the flame from going out. The flame ignited Claimant's bed. At approximately 10:05 a.m., the fire alarm was sounded. (Exhibit 5, 6). [*2]All inmates from Housing Unit 21 were evacuated to the yards; numerous officers responded to the scene; and the Beacon Fire Department also arrived to provide assistance. The fire, which generated a lot of smoke, did not injure any inmates but twenty Correction Officers went to area hospitals to be treated for smoke inhalation. By the time the fire was fully extinguished, it had destroyed Claimant's cubicle and all of the property in it, as well as burning all or parts of other cubicles (see, Exhibits A-D [photographs of Cubicles 45, 48, and 46 and Claimant's Cubicle 47]).According to the Unusual Incident Report completed in connection with the December 31, 2001 fire (Exhibit 5), the smoke detectors did operate.

According to Claimant, the December 31, 2001 fire was the third fire to occur in the sleeping quarters of Housing Unit 21 that year, i.e., during 2001. The two other fires one in Cubicle 21 and one in Cubicle 38 were also set by inmates, although not by the same inmate who started the December 31 fire. The fire in Cubicle 21, which occurred on May 21, 2001, was described as a "small fire" that was started with a match and put out with a water extinguisher (Exhibit 1). No details were provided regarding the fire in Cubicle 38.

A sketch of the center Housing Unit in which the Claimant's cubicle was located (Exhibit 2) and a diagram of the unit to its left (Exhibit 3) were received in evidence and were the basis of a substantial portion of Claimant's testimony on direct and cross-examination. Claimant explained that each cubicle is separated from its neighbor by a board partition that is four feet in height by eight feet in length. There is a long center hallway or corridor running the length of the floor, with cubicles on each side of that hallway. The hallway is constructed with floor to ceiling walls that contain openings that lead to each cubicle area. One of these openings is for ingress and egress to Cubicles 45, 46, 47 and 48. Claimant's cubicle was located approximately 20 feet from the hallway.

The desk used by the Correction Officer on duty was located at the entrance of the hallway of the housing unit, placing it a bit off to the side and opposite the wall in which the passageway leading to Claimant's cubicle was located. Claimant testified that a Correction Officer is assigned to the housing unit at all times, and that he or she can be either "on post" (i.e., at the desk); "on tour" (i.e., walking anywhere in the unit); or "off post," (i.e., standing outside the door leading to the hallway's unit). According to Claimant, the location of the Correction Officer's desk does not permit the officer to see directly into the cubicles, as the view is blocked by the floor to ceiling walls of the hallway. In addition, he stated, the officer's desk is located so that it would be difficult for an officer seated at the desk to see into the entrances to the cubicle areas.

Fishkill Correctional Facility is a "medium security" facility, which means that inmates are allowed to come and go as they please from one area to another. This is in contrast to a "maximum security" facility, where inmates cannot move between different areas without supervision. Because of this free movement and the poor visibility from the Correction Officer's desk, Claimant testified that any inmate can readily enter and leave a cubicle area without being noticed.

According to Claimant, no smoke detectors were located in any of the cubicle sleeping areas but only in the main hallway or corridor. Because Claimant was at the Medical Unit when the fire broke out, he was unable to testify about how and when the inmate who started the fire may have gained entrance to the cubicle or about the circumstances that set off the fire alarm.

In his closing argument, Claimant asserted that the State, as owner of Fishkill Correctional [*3]Facility, was obligated to maintain the facility in a safe condition and to take reasonable precautions in view of all the circumstances, preventing dangerous conditions that could cause serious injury to persons or damage property. This duty would encompass taking adequate fire safety precautions. Claimant further argued that because there had been two prior fires earlier in the year in the same Housing Unit, the State was on "constructive notice" of the need for additional fire safety precautions. These precautions, he argued, should have included redesign of the Housing Unit, in order to provide greater visibility for the Correction Officer, and installation of smoke detectors in the sleeping areas.

At the close of Claimant's case, the State moved to dismiss the claim on the ground that Claimant failed to make out a prima facie case of negligence. Defense counsel argued that Claimant had not proven the State deviated from the design regulations for the facility or that the location of the smoke detectors in the hallway resulted in a slower response to the fire or in greater or faster destruction of the Claimant's property. The State also argued that the fire was the result of an act of arson and that there is nothing in the record to indicate that the arson could have been prevented by greater vigilance.

Claimant did not call as a witness the Correction Officer on duty at the time of the fire, Ms. V. Smith, and so there was no testimony about what she saw or experienced with regard to these matters. Defendant did not call any witnesses.

At the beginning of trial, the parties stipulated and agreed that Claimant's itemized list of property destroyed in the fire and the respective values he ascribed to each item (Exhibit 7) would be accepted as an accurate account of the Claimant's damages, subject to any value adjustments deemed appropriate by the Court, in the event the Court finds the State is liable for such damages.

Applicable Law and Discussion

When it acts as a property owner,[FN1] the State is held to the same standard of care as any private landowner (Basso v. Miller, 40 NY2d 233 [1976]; Preston v. State of New York, 59 NY2d 997 [1983]). It must act as a reasonable person in maintaining its property "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" (Basso v. Miller, supra at 241, quoting Smith v. Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972]; see also, Miller v. State of New York, 62 NY2d 506 [1984]). This standard of care applies to prison facilities in the same fashion that it does to other properties owned and operated by the State (Bowers v. State of New York, 241 AD2d 760 [3d Dept 1997]; Condon v. State of New York, 193 AD2d 874 [3d [*4]Dept 1993]).

The State is not an insurer, however, and negligence may not be inferred solely from the happening of an accident or other event that results in harm (Killeen v. State of New York, 66 NY2d 850 [1985]; Mochen v. State of New York, 57 AD2d 719 [4th Dept 1977]). For the State to be held liable for the loss of his property, Claimant must establish, by a fair preponderance of the credible evidence, that the State breached its duty of care either by creating a dangerous condition or by having actual or constructive notice of a foreseeably dangerous condition and failing to take steps to correct or neutralize it within a reasonable time period; he must also prove that the breach of duty was a proximate cause of his injury (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]; Hammarberg v. Harley Rendezvous, 305 AD2d 895 [3d Dept 2003]; see also Rivera v. 2160 Realty Co., L.L.C., 4 NY3d 837 [2005]).

Claimant's allegations of negligence in this case focus on the absence of smoke detectors in the cubicle sleeping areas, the absence of a visual line of sight from the Correction Officer's station to the individual cubicles, and the failure of State officials to take additional precautions against an inmate-set fire following the two earlier incidents. What was lacking was competent evidence from which it could be concluded that any of these conditions constituted a breach of the State's duty of due care.

A total absence of smoke detectors may give rise to liability on the part of a landlord who has a duty to see that such devices are installed (Gilley v. New York City Housing Auth., 217 AD2d 493 [1st Dept 1995]), but Claimant does not contend this was the case here. In order to establish that the State was required to place smoke detectors in the actual sleeping areas, Claimant would need to have presented expert testimony or, at the least, to have pointed to some regulations or other authority supporting such a conclusion. Despite Claimant's assertion that smoke alarms are now required to be installed in the sleeping areas, the statute cited in his claim (Executive Law §378 [5][b]) applies to one or two-family dwellings and dwellings in condominiums or cooperatives and requires only that smoke detecting devices be "clearly audible in each bedroom or other room used for sleeping purposes."[FN2] The Court's own research has revealed no statute or regulation that would be applicable in this situation. There are regulations calling for smoke detectors in other types of facilities, however, sometimes requiring one on each floor adjacent to sleeping areas (14 NYCRR § 87.9 [family care homes]) and sometimes inside each sleeping room (10 NYCRR 713-1.19 [new nursing homes]). In any event, because there was no testimony from anyone who was on the scene at the time of the fire, there is no evidence in the record from which the Court could determine whether the location of the smoke detectors in any way delayed discovery of this particular fire.

It is true that, in a decision cited by Claimant, the fire safety system at Fishkill Correctional Facility was given a very negative depiction by the plaintiffs in an unsuccessful action alleging that the totality of conditions at the prison constituted cruel and unusual punishment (Alston v. Coughlin, 668 F. Supp. 822 [SDNY1987]). That challenge was unsuccessful, however, with the court holding that "[t]he FCF fire safety and evacuation measures are adequate to protect the inmates' well-being and safety." Moreover, any statement of the conditions that existed in the [*5]early to mid 1980s, even if found to be accurate then, would not constitute competent evidence of the conditions that existed in 2001.[FN3]

With respect to the line of vision from the Correction Officer's station to the individual cubicles, Claimant presented no evidence that this conformation was in violation of relevant building guidelines or correctional facility standards. In any event, Claimant himself acknowledged that it was not required or expected that an officer be at that precise location at all times. Without evidence to indicate where the officer on duty was at the time the fire was set, Claimant cannot establish that the view of the unit available to an individual sitting at the desk would be of relevance to this case.

Sufficient details about the two earlier fires were also missing from Claimant's proof. In order to establish that a previous event put the State "on notice" of a potential danger, it must be shown that the incidents were similar in nature (Sawyer v. Dreis & Krump Mfg. Co., 67 NY2d 328 [1986]; Morman v. Ossining Union Free School Dist., 297 AD2d 788 [2d Dept 2002]), in such a way that knowledge of the earlier event would have made the later one forseeable (Bostic v. State of New York, 232 AD2d 837 [3d Dept 1996], lv denied 89 NY2d 807). All that is known is that one of the other fires was started with a match, quickly put out, and considered to be "small" (Exhibit 1). There was no information about the second fire, nor was there any showing of what would be a "normal" incidence of fires during a year in a medium security facility. One might assume that three fires within the same housing unit would be an unusual number, but judicial decisions are not based on assumptions.

If the Court were to accept, for the sake of argument, that the three fires were similar enough for the first two to have provided notice to the State that there might be a third, then there would be the further question of what reasonable steps should, or could, have been taken that would have prevented the fire in Claimant's cubicle. Since the perpetrators were different in each fire, simply removing them from the facility would not suffice. Claimant's suggestions that the housing unit should have been redesigned or the Correction Officer's desk moved so there could be a direct line of vision into the sleeping areas brings the matter into the discretionary area of institutional planning and design. In order for Defendant to be liable for decisions made in the design and configuration of such places, it must be shown that the plan lacked a reasonable basis or was based on inadequate study (Joyce v. State of New York, 152 AD2d 306 [3d Dept 1989], appeal denied 76 NY2d 703). Again, this would have called for expert testimony. [*6]

The Court holds that Claimant has failed to establish, by a clear preponderance of the credible evidence, that the State breached its duty to maintain its property in a reasonably safe condition. Judgment is to be entered in favor of Defendant, dismissing the claim.

Let judgment be entered accordingly. Footnotes

Footnote 1: Based on evidence that there was little or no contact between Claimant and the inmate who started the fire in his cubicle, there is no basis for finding the State liable on the ground that it failed to use reasonable care to protect Claimant from a foreseeable risk of attack by another inmate (see, Sanchez v. State of New York, 99 NY2d 247 [2002]; Elnandes v. State of New York, 11 AD3d 828 [3d Dept 2004]; Littlejohn v. State of New York, 218 AD2d 833 [3d Dept 1999]; Padgett v. State of New York, 163 AD2d 914 [4th Dept 1990]). In addition, because Claimant was housed in a medium security facility, rather than a maximum security facility where access to an inmate's cell is severely limited, this is not a situation in which the doctrine of res ipsa loquitur could be applied (see, Miceli v. State of New York, 179 Misc 2d 424 [Ct Cl 1998]).

Footnote 2: None of the other statutes or regulations referenced in the claim contain any direction regarding the specific location of smoke detecting devices.

Footnote 3: The second case cited by Claimant, Hoptowit v. Spellman (753 F2d 779 [9th Cir 1985]) stands for the proposition that a panoply of substandard and hazardous conditions in a prison such as "overcrowding, substandard lighting, unsatisfactory plumbing, substandard fire prevention, substandard food service, vermin infestation, lack of an effective maintenance program, inadequate ventilation, safety hazards in the occupational areas, unavailable or inadequate cell cleaning supplies" can rise to the level that their aggregate constitutes a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.