Padilla v State of New York
Annotate this CaseDecided on September 24, 2020
Court of Claims
Carmen Padilla, Claimant,
against
The State of New York, Defendant.
126571
For Claimant:
LAW OFFICES OF ANTHONY IADEVAIA
By: Anthony Iadevaia, Esq., Susan Davis, Esq.
For Defendant:
HON. LETITIA JAMES
Attorney General for the State of New York
By: Heather Rubinstein, Assistant Attorney General
Walter Rivera, J.
This claim arises out of an incident that occurred on October 31, 2012, during claimant's incarceration at Beacon Correctional Facility (Beacon) when claimant slipped and fell in the drying area located immediately outside of the shower stall where she had just finished showering. The trial of this claim was bifurcated and this decision pertains only to the issue of liability.
Claimant contends that the State is liable for the injuries that she sustained in her slip and fall due to a dangerous condition created by the State. Specifically, claimant maintains that the State's renovation project in 2009 created a tiled drying area outside of the shower stall that was excessively sloped and prone to becoming wet, soapy and slippery (Exs. 4, 5, E, F). Claimant also maintains that the State failed to provide shower curtains of a sufficient length that would prevent water from splashing out of the shower stall and onto the tiled floor of the drying area. Claimant also argues that the absence of floor mats, anti-slip strips and handrails was a contributing cause of her accident.
The State maintains that it cannot be held liable for claimant's injuries because claimant failed to specify the precise location of her fall and failed to establish that the State either created a dangerous condition in its renovation of the subject area or that the State was otherwise negligent and that such negligence was a contributing cause of claimant's injuries. The State [*2]argues that its renovation complied with the applicable New York State Building Code and that the State was not required to provide mats, anti-slip strips or handrails. Rather, the State's position is that claimant's own negligence was the sole proximate cause of her accident.
Claimant, Carmen Padilla, testified that prior to the date of her accident she had used the shower stall in issue without incident or complaint. On the date of the accident, claimant was 5 feet 5 inches tall and 48 years old. She selected the shower stall in issue because it was the only one available and she did not choose to wait to use a different one. Claimant removed her flip-flops and left her clothing on the ledge adjacent to the shower stall. Claimant noticed that the tiled shower stall was wet before entering it.
The lip of the tiled shower stall basin on the inside of the shower stall was one and one-half inches high. By contrast, the height of the lip on the outside of the shower stall was four and one-half inches. The bottom of the shower curtain stopped at claimant's mid-calf and did not reach the top of the lip of the shower stall basin. Therefore, according to claimant, water splashed out of the shower stall, over the lip of the basin and onto the tiled floor in front of the shower stall. Claimant testified that all the shower curtains in all the stalls were of the same length and that the water always splashed out of the shower stalls and onto the tiled floor.
After showering, claimant remained inside the shower stall and partially dried her body. She did not dry the bottom of her feet because she intended to proceed barefooted out of the shower stall, over the lip of the shower stall basin and onto the wet tiled floor outside the shower stall. Claimant reached out of the shower stall to grab her undergarments from the ledge (Ex. 9A). As she was looking at her clothing on the ledge, she stepped over the lip of the shower stall basin and her right foot slipped and "sort of like . . . skied down" as she fell backwards hitting her neck on the lip of the shower stall basin (T:38, 40, 50-51; Ex. 12).[FN1] This all occurred before claimant was able to place her left foot down onto the tiled floor (T:40). An Inmate Injury Report was prepared and received into evidence (Ex. 3).
Scott Silberman, P.E., provided expert testimony on behalf of claimant. According to Silberman, the area just outside the shower basin had an 11-12.1 percent slope, which he considered to be excessively steep and beyond the maximum permissible slope. He further opined that the presence of soap and water on the slope would make it easier for someone to slip and fall. Silberman's review of the State's plans showed sloping from the edge of the shower to the drain inside the shower stall (Ex. 5, p 9; T:72-74). He also opined that where the floor meets the wall tile outside the shower basin "just reinforces . . . the presence of the sloped flooring there" (Ex 6A; T:83). Silberman concluded that, due to the steep slope and that the tiled area was prone to becoming wet and soapy, the area where claimant fell was "unreasonably unsafe" and "a very dangerous situation and that's an accident waiting to happen" (T:142).
Silberman also noted that the State's Facility Directive, issued four months before claimant's accident, stated that "[a]nti-slip strips may be installed to prevent slipping" in areas where wet floors cause accidents (Ex. 8, pp 1, 2 [¶C2], 4 [¶ H12]). Silberman opined that the State's directive should have required that the anti-slip strips be installed. According to Silberman, claimant's slip and fall could have been prevented by the use of rubber matting, anti-slip strips, handrails and a longer shower curtain to prevent water from splashing out of the [*3]shower stall.
At the conclusion of claimant's case, the State moved to dismiss the claim based upon claimant's failure to establish a prima facie case. Claimant opposed the motion. The Court reserved decision on the motion and the State presented its case.
Correction Officer Patricia Stevenson prepared claimant's Inmate Injury Report. Stevenson, however, had no independent recollection of the incident. Stevenson worked at Beacon from 2002 to 2012 and did not recall seeing excessive water splashing out of the shower stalls and she did not recall any accidents prior to claimant's accident.
Paul Morentoni, the Fire and Safety Officer from 2006 to 2012, testified that he did monthly facility inspections at Beacon and was not aware of any hazardous conditions in the shower area. He noted that the shower heads produced a low volume of water and that the absence of mats may have been due to a lack of supply. He testified that there was no need for anti-slip strips and, while acknowledging that he was not an expert, he did not think that the slope or pitch outside the shower stall posed a hazard. He also testified that, while there had been some prior falls in the shower area, such as inmates cleaning the shower and falling, there was not a significant number of accidents which would dictate the need for remedial action or mats in the area. Morentoni did not find any work orders for the subject area.
Michael Convertino, the Director and Chief Code Compliance Officer for the Office of General Services, provided expert testimony on behalf of the State. Convertino issued code compliance certificates to the State upon his review of their construction projects. In this matter, Convertino found that the State's renovation project was code compliant and did not present any unreasonable danger (T:231-234, 241, 256-259).
Convertino did not see a specific advantage in providing a handrail and noted that, in a prison setting, even a handrail can become a potential weapon. He further noted that a handrail was only required in the handicapped stall and not the stall used by claimant. Convertino testified that the slope in the shower area was limited to the corner closest to the rear wall. He explained that the pitch increased because the drain was moved closer (Ex. 9A). Additionally, he described the drying area as a pitched sloped floor and not a ramp or an egress. Thus, he maintained that the area did not present a dangerous condition.
Donald Petruncola, a registered architect, also provided expert testimony on behalf of the State. He found the slope of the drying area in issue to be nine percent, which was in compliance with the New York State Building Code. He noted that the Americans with Disabilities Act is not applicable to the shower area and that the area in issue is not a ramp; it is a floor. Additionally, a floor can be sloped and not be a ramp. Also, the drying area is not part of an egress path. According to Petruncola, the shower stall was in complete compliance with the New York State Building Code and did not constitute a dangerous condition.
At the conclusion of trial, the State renewed its motion to dismiss based upon claimant's failure to establish a prima facie case and argued that claimant had failed to specify the precise location of her fall. Claimant opposed the motion. The Court reserved decision on the motion.
Analysis
The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Negligence must be [*4]proven (see Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]). Indeed:
"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury."(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see also Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]).
Claimant has the burden of proving, by a preponderance of the credible evidence, that the State breached its duty of care by either creating a dangerous condition or by failing to timely and reasonably address a dangerous condition of which the State had either actual or constructive notice and that such condition was a proximate cause of claimant's injuries (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Ligon v Waldbaum, Inc., 234 AD2d 347 [2d Dept 1996]; Mercer v City of NewYork, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the evidence presented was insufficient to establish that the State either created a dangerous condition in its renovation project and the resultant slope of the drying area, or that the State had either actual or constructive notice of a foreseeably dangerous condition of excessive wetness in the drying area outside of the shower stall (see Quintanilla v State of New York, 94 AD3d 846 [2d Dept 2012]; Adingra v Henry St. Settlement, 26 AD3d 279 [1st Dept 2006]; Pennie v McGillivary, 15 AD3d 639 [2d Dept 2005]; Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]). In this regard, the Court finds that the expert testimony of the State's witnesses, Michael Convertino and Donald Petruncola, was very persuasive in establishing that the area was compliant with the New York State Building Code, did not have an impermissibly steep slope in the drying area and did not present an unreasonably dangerous condition. The Court also finds that the testimony of the State's expert witnesses established that, in the area in issue, the State was not required to install handrails or anti-slip strips or to provide mats.
Additionally, the Court finds that claimant has failed to establish by a preponderance of the credible evidence that there was a recurrent dangerously slippery condition of an excessively wet floor in the drying area outside of the shower stall due to shower water splashing out of the shower stall (see Adingra, 26 AD3d 279 [case dismissed where there was no evidence that defendant created or had either actual or constructive notice of a wet floor where fall occurred]; Dawkins v Long Is. R. R., 302 AD2d 349 [2d Dept 2003] [in the absence of proof as to how long the water was on the floor, there is no evidence which would permit an inference that defendant had constructive notice of the condition]). While proof of prior accidents at the same location and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this case, the record is devoid of any indication that there was an unusual number of prior similar accidents in the drying area (see Martin v State of New York, 305 AD2d 784 [3d Dept 2003] [the number of prior accidents was insufficient to put the State on notice of a dangerous condition or impose a duty to take remedial action]; Light v State of New York, 250 AD2d 988 [3d Dept 1998] [no evidence of an unusual number of accidents to support a finding [*5]that the State had notice of a dangerous condition requiring remedial action]).
Moreover, even if claimant established that the State had a general awareness that the drying area became wet at times, claimant did not meet her burden of establishing that the State had actual or constructive notice of the particular condition which allegedly caused her fall (see Gonzalez v Jenel Mgt. Corp., 11 AD3d 656, 657 [2d Dept 2004]; McDuffie v Fleet Fin. Group, 269 AD2d 575 [2d Dept 2000]). "[A] 'general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall . . . liability could be predicated only on failure of defendants to remedy the danger presented by the [wetness] after actual or constructive notice of the condition" (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994] [citations omitted]; see Toma v Rizkalla, 138 AD3d 1103, 1105 [2d Dept 2016] [a general awareness of a potential problem with the toilet handle was not sufficient to establish constructive notice of the particular condition which caused the plaintiff to fall]; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511 [2d Dept 2005] [defendant's general awareness that ice may be tracked into the building during inclement weather is not sufficient to establish constructive notice of the particular condition which caused the plaintiff to fall]).
It is further noted that "[a] property owner is not obligated to cover all of its floors with mats or to continuously mop up all moisture" (see Curtis, 23 AD3d at 512; see Keller v Keller, 153 AD3d 1613 [4th Dept 2017]). Wetness on a bathroom floor outside of a shower stall is an ordinary condition which is readily observable by one making proper use of one's senses and does not, by itself, establish negligence (see Jackson v State of New York, 51 AD3d 1251 [3d Dept 2008]). Claimant was bound to see that which could have been observed by a proper use of her senses (see Coote v Niagara Mohawk Power Corp., 234 AD2d 907 [4th Dept 1996]; Johnston v State of New York, 127 AD2d 980, 981 [4th Dept 1987]) and when a claimant fails to use ordinary care, she must take responsibility for her own negligence (see Carter v State of New York, 194 AD2d 967 [3d Dept 1993]). Notably, claimant had previously used the shower stall in issue without incident or complaint and, on the date in issue, claimant freely chose to use the same stall, without hesitation and with an awareness that the stall was wet before she used it. Furthermore, contrary to claimant's arguments, the mere opportunity to make the subject area safer, by supplying a longer shower curtain, anti-slip strips, a mat and/or a handrail, does not establish that the State had a legal duty to make the area safer than it appeared to be with a proper use of one's senses.
In sum, the Court finds that claimant failed to establish by a preponderance of the credible evidence that the State either created a dangerous condition in its renovation project and the resultant slope of the drying area, or that the State had actual or constructive notice of a dangerous condition and that claimant's injuries were proximately caused by the State's failure to provide claimant with a longer shower curtain, anti-slip strips, a mat and/or a handrail. Indeed, it would be purely speculative, and beyond the record presented, for the Court to find that a longer shower curtain, a handrail, a mat and/or anti-slip strips would have prevented claimant's fall.
Accordingly, the State's motion to dismiss, made at the conclusion of trial, is now GRANTED and the claim is DISMISSED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 126571.
Dated: September 24, 2020
White Plains, New York
HON. WALTER RIVERA Footnotes
Footnote 1:References to the trial transcript are preceded by the letter "T."
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