Terry v State of New York

[*1] Terry v State of New York 2005 NY Slip Op 52380(U) [21 Misc 3d 1124(A)] Decided on October 26, 2005 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 17, 2008; it will not be published in the printed Official Reports.

Decided on October 26, 2005
Ct Cl

Chevis Terry, Claimant,

against

The State of New York, Defendant.



107547



Claimant's attorney:CARTER, CONBOY, CASE, BLACKMORE, MALONEY, & LAIRD, P.C.

BY: LOUIS U. GASPARINI, ESQ.

Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: KRAL, CLERKIN, REDMOND, RYAN, PERRY & GIRVAN, LLP, OF COUNSEL

BY: OLIVER W. WILLIAMS, ESQ.

Thomas H. Scuccimarra, J.

Chevis Terry alleges in Claim Number 107547 that he was injured while walking in the north-yard corridor between housing units 3-1 and 3-2 at Fishkill Correctional Facility (hereafter Fishkill) because of Defendant's negligent failure to maintain the corridor by allowing a dangerous condition to exist there without repair. Trial on the issue of liability was held on August 17, 2005.

Claimant testified that on July 23, 2002 at approximately 7:30 a.m. he was leaving the mess hall on his way to the regional medical unit (RMU), when he fell in a hole near the right side wall of the north-yard corridor created during an ongoing construction project involving the removal of radiators and pipes. Claimant ambulated through the use of two crutches on that day, because of a previous injury to his left ankle. His left foot was immobilized in a cast; while he wore a boot on his right foot. [*2]

When he was called out from the mess hall to go to the infirmary, he was told to "go out in front to set the pace,"[FN1] so that the other inmates heading to the infirmary "would not have to wait."

Claimant described the corridor as "approximately 6 feet wide, and about 30-40 feet long." The corridor, he explained, connects to the "3-1, 3-2 housing unit" on the right side, and the north yard is on the left side of the corridor. The floor is gray and smooth, with a yellow stripe down the middle to designate that walkers should stay to the right. He estimated that there are approximately 3 feet from the yellow stripe to the wall on each side.

After "walking for about 4 feet [along the north-yard corridor] all of the sudden, the ground just disappeared and . . . [he] went down . . . [He] flipped, hit the wall, hit . . . [his] head, and landed on the floor, banging . . . [his] wrist and slamming up against . . . [his] back." He was laying on the ground, when he realized that the tip of his crutch had snapped off and was in a hole. He said he had been walking "straight ahead. . . . and did not see a hole until after . . . [he] fell." Describing the hole as approximately "3½ to 4 inches wide," he said it "went all the way through the floor - you could see the basement;" the latter observation made "a few days later" when he looked at the site.

Claimant said there were "6 to 6½ inches of crutch in the hole" and that the hole was approximately 1½ inches off the radiator, or 2 feet from the wall. From where the hole was to the wall, he said there was also a 4-inch-deep radiator. Asked again to describe the mechanics of his fall he said he fell forward to the right, hit his head on the radiator, flipped over, and landed on his back. His forehead, his lower back and his right wrist hit the cement.

After he fell, he was told to stay still, and was thereafter "put on a backboard with a cervical neck brace and brought to the RMU".

On cross-examination Claimant admitted he lifted weights at Fishkill, and that lifting weights involves the use of his wrists, but would not admit that he had sustained an injury to his wrist in the process of lifting weights. He would not concede that the hole was out of the way of pedestrian traffic, saying that the "hole was 2 inches from the radiator, and that the radiator was 1 foot off." He said that the "hole was a foot, to a foot and a half away from the wall." He did not know how long the hole had been there or who had made it.

He said that before the day of the accident he had walked in the north-yard corridor from the mess hall to the infirmary "maybe twice before."

Claimant admitted that prior to the accident, he knew he would be eligible for parole within 1½ years, but would not concede that his consideration for parole was "soon." He affirmed that he never told anyone that he had faked the incident. He would not characterize the speed at which he was walking that day, although he did say that he usually would be in the back of a line going anywhere because he could not keep up with the other inmates. Because he could not walk at the same rate of speed as the others he generally lingered behind. Although on this day he was in front, Claimant did not concede that he was walking faster than usual. A "slow pace" is how he would describe his rate of speed when walking at the back of the line. He admitted that when he walked down the north corridor on the same route two weeks before his accident, he was in the back of the line. Then, as on the day of the accident, there was no [*3]ongoing work in the north-yard corridor, nor were there any noticeable holes to the right side of the corridor. When he fell, he could see that there were no other holes to that right side near where he fell, but could not see whether there were or were not holes throughout the rest of the corridor. Claimant would not concede that the crutch went in the hole because he wanted it in there. No one pushed him, and no one told him to speed up or advised him of what rate of speed to use.

When asked about his current incarceration as a result of a parole violation, he would not say that he was again behind bars because he had lied to the parole board about keeping free of crime, and drugs. He said he "has a drug problem." He said he was reincarcerated for breaking parole for "dirty urine" and for "sniffing cocaine," not for selling and distributing cocaine. He claimed that he tried to comply with a child support order directing payments to his family after his release from prison, to the "best of . . .[his] ability", yet for a period of 1½ years he paid child support only "a couple of times" and bought cocaine as well.

Charles Kerzer, employed as an engineer-in-charge by the State of New York for projects at various State facilities including Fishkill in July 2002, also testified. He indicated that his duties included the management of construction projects, inspections, and the enforcement of terms of contract documents. In July 2002, he recalled, there were several ongoing construction projects. At Fishkill, there was a general heating-conversion project going on in the main complex, including the north-yard corridor. The project entailed conversion from steam-based heating to hot water. To facilitate the conversion, steam radiators and related piping needed to be removed, and end-tube-based heating, new piping, and new heat exchangers were to be installed. Pipes were removed depending on where they were located. Most pipe removal was in the basement - pipes were taken off hangers and replaced with new hot water piping.

Although radiators were generally removed, Mr. Kerzer recalled that there would be very little if any surface piping removal since the piping fed from the basement up to the radiators. Radiator removal depended on what were the varied installation configurations. He could not say specifically what the procedure had been in the north-yard corridor. He did not know whether piping was removed there from the floor. He said it was "likely" but did "not know for a fact." "Contractually", he explained, "in many places the piping that fed the radiators was abandoned as a practical matter - some areas were simply inaccessible - mechanical contractors were responsible for removal of piping to a nominal depth below the surface, whereas the construction contractors were responsible for the final finish." There were pipes through the floor of the north-yard corridor - feeding from the basement to the radiators - but he could not say for sure whether these pipes were removed. Mr. Kerzer said the pipes typically were not removed because of practical considerations, but in some cases they were.

In terms of the mechanics of the removal, pipes were severed below the surface of the floor. The radiators themselves would be removed, and the mechanical contractors would cut the pipe below the floor. Mr. Kerzer stated that the "only reason . . . [he] was enforcing cutting below the surface was because it was in the contract," not because of safety concerns. He said that a severed pipe below the surface would make an "open pipe-sized gap . . . [He] wouldn't call it a hole, it's an open pipe."

Mr. Kerzer did not recall observing the north-yard corridor on July 23, 2002 or immediately thereafter. He said the only time he observed the corridor was "a couple of months [*4]after the incident."

On cross-examination the witness confirmed that he viewed the area where he was told the hole was from the basement - and saw that the hole was approximately 4 or 5 inches from the wall "at most" and well out of the path of pedestrian traffic.

On redirect examination, Mr. Kerzer could not say whether the hole would be in the path of a crutch, because he "did not have a good feel for what the path of a crutch would be." He said he has had an opportunity to observe people walking with crutches, and would say that generally a crutch would be "alongside the individual's body using it." Mr. Kerzer would not say that the crutch would be "off to the side," when prodded to do so by Claimant's Counsel.

Correction Officer Darcel Powell, employed at Fishkill on July 23, 2002, first saw Claimant in the rear of the mess hall between 7:00 and 7:30 a.m. She said Claimant left the mess hall at approximately 7:30 a.m. under her escort to go to the RMU. Officer Powell described the north corridor as "approximately 8 feet wide and 40 to 50 feet long." She said that inmates are required to walk to the right of the center yellow line - though she really did not know why. She said it was "possible that there are signs that say keep to the right," though she "could not say for sure."

As she entered the north-yard corridor she observed Claimant moving "a little bit faster than normal for him through the mess hall and beyond to the corridor. As . . . [she] was about to holler to slow down . . . [she] saw him falling forward - he appeared to flip." Officer Powell estimated that he was perhaps 15 feet into the corridor when she saw the fall. She walked to the front of the line, asked Claimant if he was alright; and tried to get some response from him.

At one point, she walked back to the rear of the line and then came forward again. One of Claimant's crutches was lodged into a hole in the floor. Half of the crutch was in the hole, and it was sticking out. She thought Claimant's "head might have been 2 or 3 feet above the hole." The hole itself, she said, was 2 to 3 inches in diameter. She did not see how deep it was. There was no radiator in the area that she remembers, and the hole was "about 2 to 3 inches from the wall."

Officer Powell said Claimant was on the floor, flat on his back, and the hole was behind his head. She did not understand how he could have seen the hole at that time as he testified. "He may have seen it later, or after . . . [she] left when he was lifted up." There were no signs or cones or construction tools in the area.

Officer Powell completed a report of inmate injury form at the time of the incident. She explained that such a report is "necessary" in order for the inmate to receive medical treatment. The report of inmate injury form indicates as the "cause of injury, crutch leg went into old hole on floor." [Exhibit 1]. She "had no idea why [she described the hole as an] old hole." She saw no shavings, or disturbed cement; thus she testified that was "probably" why she described it as an "old hole."

On cross-examination, Officer Powell confirmed that she used the corridor on a monthly basis, on route from the mess hall to the RMU approximately 20 to 30 times. She had never observed the hole that Claimant fell in. She explained that she had said on direct testimony that Claimant was walking faster than normal, because on previous escorts she had noted that he lagged somewhat behind the line. She explained that she became alarmed at the rate of speed at which he was traveling because she was "afraid he might hurt himself," because he had crutches and a cast. She had never seen him walk that quickly before, and had observed him ambulate [*5]with crutches between 4 to 8 times on previous excursions to the RMU.

No other witnesses testified on Claimant's direct case, nor was any other evidence submitted.

DISCUSSION AND CONCLUSION

Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. See also Preston v State of New York, 59 NY2d 997 (1983). The duty of care is limited by a claimant's reasonable expectations under the circumstances. The State's obligation is to make the north-yard corridor - in this case - as safe as it appears to be, so that a Claimant can fully comprehend and perceive any risks he may by taking by ambulating down the hallway. Assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any ". . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra at 837.

Claimant's theory is that the Defendant created a dangerous condition, that Claimant was in no sense liable for his own fall in the hole that constituted the allegedly dangerous or defective condition, and that the defect proximately caused his injuries. Defendant argues that Claimant did not establish that Defendant created the condition, or, alternatively, did not establish actual or constructive notice of the dangerous condition, proximate cause and a lack of comparative fault.

As the trier of fact and law, charged with assessing the credibility of the various witnesses and evaluating the evidence, [See Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)] the Court finds that the State is not responsible for the Claimant's fall and resultant injury.

The uncontradicted evidence presented was that the State had exclusive control over the premises at Fishkill, but no one knew exactly when or how any hole was created in the north- yard hallway. Presumably, in the course of the ongoing heating conversion project at Fishkill, a pipe was severed and created an open pipe-sized hole as testified to by Mr. Kerzer. Although no one appeared to be precisely sure of how the hole came to be there, it was established without contradiction that it was only Defendant or its contracting agents who would have attempted the removal of the pipe and created a hole. Although it is axiomatic that "...[m]ere ownership does not give rise to . . . [a] duty [to inspect and remove hazards] . . . " [Preston v State of New York, supra at 998], the Court is satisfied that the condition was one that could only have been created by the State. Notice is not an issue here since the State created the condition. Ohanessian v Chase Manhattan Realty Leasing Corp., 193 AD2d 567 (1st Dept 1993).

That it was a potentially dangerous condition is apparent, although its location approximately 3 to 4 inches away from the wall would require some intentional dexterity to cause a fall. A hole in the floor of a frequently traveled corridor, clearly presents a foreseeable hazard to the unwary walker. That Mr. Terry was unaware that there was a hazard to avoid, [*6]however, is not so apparent.

The Court does not find Claimant's testimony credible. The corridor was described as 6 feet wide, when other witnesses described it as 8 feet wide. He placed the hole in different locations along the right side of the corridor: in front of a radiator, in front of a wall, two feet from the wall, and one foot from the wall. The hole itself stayed the same size during his testimony, and other witnesses - Officer Powell and Mr. Kerzer - clarified that the diameter could be between 2 to 3 inches. Officer Powell based this on her personal observation; Mr. Kerzer premised this on observation of the area he was directed to as well as general knowledge of the diameter of a heating pipe.

Claimant only admitted to utilizing this corridor on two prior occasions; yet Officer Powell recalled escorting Claimant along the corridor more frequently: between 4 to 8 times. On all of those prior occasions, Officer Powell had observed him ambulating slowly with the use of his crutches and noted that on this occasion he went to the front of the line rather than "lagging" as he usually did, and that he was walking fast enough that she was concerned that he might hurt himself and was ready to tell him to slow down. Claimant himself would not characterize the speed at which he traveled. Logic dictates that if he normally traveled at the rear as he acknowledged - lingering behind the other inmates at a "slow pace" - on this occasion if he continued to maintain his spot in the front of the line he would of necessity be traveling more briskly. He would not concede that he was walking faster although he led the inmate procession. No one - including officers or other inmates - told him to speed up, or attempted to dictate his rate of travel.

Based on the Court's observation of Claimant as he testified, and his inconsistent descriptions of the scene of the accident, the Court does not find his testimony concerning its mechanics credible. While ambulating with crutches, he appears to have deliberately moved more quickly than safety concerns would warrant, and to have manipulated his crutch in an odd fashion to make this incident other than one that was orchestrated. The Court cannot help but conclude that Claimant deliberately placed the narrow tip of his crutch into a hole of perhaps 3 inches in diameter within 4 inches of the rightmost wall in a broad corridor, and thus precipitated his fall. As a pure accident, the likelihood of contact between the crutch tip and the hole is far- fetched, given their respective dimensions and the location of the hole to the extreme right of pedestrian traffic.

Accordingly, although the Defendant may have created a potentially dangerous condition, it was not the proximate cause of Claimant's injuries. The Claimant failed to see that which he should have seen and avoided by the proper use of his senses or, having observed the hole, decided to put it to use, and is thus exclusively responsible for his fall. Claimant has not established by a preponderance of the credible evidence that the State of New York is responsible for any injury he suffered.

Accordingly, Defendant's motion to dismiss the claim reserved on at the time of trial is hereby granted, and Claim Number 107547 is in all respects dismissed. All trial motions not otherwise disposed of are denied.

Let judgment be entered accordingly.

Appendices: Footnotes

Footnote 1: All quotations are to trial notes or audio recordings unless otherwise indicated.