Az-Zahid v State of New York

[*1] Az-Zahid v State of New York 2023 NY Slip Op 50544(U) Decided on May 17, 2023 Court Of Claims Vargas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2023
Court of Claims

Salim Az-Zahid, Claimant,

against

State of New York, Defendant.



Claim No. 135011



For Claimant:

Salim Az-Zahid, Pro se

For Defendant:

Hon. Letitia James, Attorney General of the State of

New York

By: Janel M. Kaufman, Esq., Assistant Attorney General
Javier E. Vargas, J.

This Court, having presided over the instant trial on March 1, 2023, having heard the testifying witnesses, examined the pleadings and exhibits in evidence, and listened to the arguments raised during trial, hereby makes these findings of fact and reaches the following conclusions of law.

On July 7, 2020, Claimant Salim Az-Zahid (hereinafter "claimant"), an incarcerated person, filed a Claim for negligence against Defendant State of New York (hereinafter "State"), alleging that, on April 14, 2020 at 11:15 a.m., he was taking a shower at Sullivan Correctional Facility (hereinafter "Sullivan"), "[a]t which time a burst of extremely hot water shot out and burned Claimant, on the lower right side of his stomach causing [him] sever[e] pain" (Claim, July 7, 2020, at 1, ¶ 3). Claimant asserts that the New York State Department of Corrections and Community Supervision ("DOCCS") was negligent and liable "because the shower water control mechanism does not have any handle by which a person can control or adjust the water temperature, . . . making it a dangerous hazard for anyone taking a shower" (id. at 2, ¶ 5). As a result of the accident, the claimant states that he sustained second degree burns to his stomach, "pain and suffering, loss of sleep, heightened anxiety, and depression," for which he requests [*2]compensation in the sum of $10,000 (id. at 2, ¶ 7, Wherefore).

The State filed a Verified Answer on August 12, 2020, denying a majority of the claimant's allegations and interposing thirteen affirmative defenses, including contributory negligence and lack of subject matter jurisdiction under Court of Claims Act §§ 10 and 11. No other proceedings have taken place, until June 30, 2022, upon the retirement of the Hon. Faviola A. Soto, when all matters currently pending at Sullivan were assigned to the undersigned. Upon discovering that this case has been pending since July 2020, this Court scheduled the matter for trial. By correspondence dated January 13, 2023, the parties were notified of the virtual trial to be conducted using the Microsoft TEAMS platform on March 1, 2023, with the claimant and the State appearing virtually before the undersigned in Manhattan.

At the trial held on March 1, 2023, the claimant appeared via a video link from Sullivan and the State appeared by video link from upstate New York. Claimant's Exhibits 1, the Claim, and 2, Reply to Answer, as well as the State's Exhibit A, the Verified Answer, were admitted into evidence on consent. Faced with a self-represented claimant, the Court carefully explained to the parties the rules, procedures and burden of proof for the unified trial of both liability and damages. Both parties waived opening statements at the beginning of the trial.

The first witness to testify at the trial was the claimant, who testified that in the morning of April 14, 2020, he went to take a "medical shower" at the housing unit when "a burst of hot water shot out and hit [him] in the lower part of [his] stomach on the right side," which made him "step back from the shower and try to give the water a chance to adjust."[FN1] Although he kept putting his hand "under the water to see if it would cool down," it stayed hot and he got out of the shower. He testified that he noticed some redness on his stomach as he was getting dressed, and notified the correction officer that he got burned in the shower because the water was too hot. He further testified that he "got blisters" in the area later that evening and was referred to the medical unit, where the nurse dressed the wound with gauze for the night with some bacitracin and told him to go to sleep. On the next day, he stated that he went back down to medical and "they gave [him] some packets of bacitracin and some gauze to continue treating it as the blisters went down." He showed the Court three small successive discolored scars below the navel area on the right side of his stomach of approximately "one and a half inch."

According to the claimant, a "medical shower" is permitted when "you have particular medical issues, then they give you a permit which allows you to take showers at off hours that are the normal shower times" for the general population. He claimed that there have been problems with the showers before when DOCCS had sent maintenance to fix them. Claimant further testified that he filed a grievance form asking for the facility to "have the shower temperature on the hot water turned down and properly adjusted," but that DOCCS instead confiscated his hot pot burner in his unit because they determined that he burned himself with it. However, he explained that the hot pot was eventually returned as it does not reach a boiling temperature. The claimant describes his damages as a "scar on his stomach" and pain and suffering for which he should be compensated $10,000.

Upon cross-examination, the claimant testified that he was housed at Sullivan's D-North Housing Unit where there are several showers at his disposal. He has been incarcerated at Sullivan since 2018, and testified that he "showers once a day everyday" without any incident. [*3]When he requested the medical shower that particular day, there was nobody else around the shower area. He pressed the button to get the shower to start and it automatically runs for approximately 10 to 15 minutes uninterrupted. Claimant recalled that he first reported the incident from his cell later that evening "when he was getting ready to go to bed and noticed the blisters." He filed the grievance to put DOCCS on notice that the shower issue should be resolved for the general population. With respect to the hot pot, the claimant explained it is a "small pot to warm water for tea, soup or coffee," but that it never reaches a boiling temperature. He owns "the hot pot in his cell and can be used at any time without permission."

After the claimant rested his case, the State made a prima facie motion to dismiss arguing that the claimant failed to establish liability by the State because there was no credible evidence that a dangerous condition existed, that the State either created the dangerous condition or had actual or constructive notice of the condition and failed to correct the problems within a reasonable period of time. According to the State, the claimant's testimony and documents did not establish that the State was on notice of any issue with the showers.

In opposition to the motion, the claimant attempted to raise issues of notice which were absent from his case in chief at trial, including vague assertions that other inmates could not shower for a while because of the hot temperature condition, and that the State was made aware of the condition by his grievance. After hearing both parties, the Court denied the motion with leave to renew by the State at the conclusion of the case.

The State then called its own witness, Thomas Lopez, the Plant Superintendent at Sullivan employed by DOCCS since 2012, who oversees the maintenance and engineering department for the facility. He previously worked at Downstate Correctional Facility and transferred to Sullivan in 2022. He testified that he is fully familiar with the shower system at Sullivan, which has "a standard DOCCS procedure to avoid incarcerated individuals from being scalded when cold and hot water are automatically set to a regulated" temperature of between 105 and 110 degree through a system of "mixing valves." "The water is warm, not hot." According to him, there are "three lines of defense," first the main hot water line is regulated not to exceed the 110-degree set temperature, and then the water lines go through two "mixing valves" or "anti-scalding devices," which were installed "to avoid the hot water from getting excessively hot." He testified that he reviewed the log of work orders for Sullivan during the relevant dates and found nothing, no maintenance requests or repairs in regards to the D-North block showers in the prior six months. In fact, he testified that he has never seen or heard about any issues with the anti-scalding devices failing, "never in the five facilities [he has] worked in."

During cross-examination, Mr. Lopez testified that he was not aware of any construction project or any work order being done before or after April 2020. Although "there was a project going on," he was not aware of any problem with the water regulation or water temperature of the showers. He recognized that he was not working at Sullivan in 2020 and wouldn't know if there were verbal or "off the books" requests for repairs. However, he testified that all repairs either from formal or verbal requests would be subsequently documented by a work order. Work orders are filed by either the maintenance supervisor, engineer or correction officer. According to him, "most of the time there is paper work" relating to repairs. There was no redirect testimony of this witness. The State rested.

The State summed up by arguing that the claimant has failed to establish any dangerous condition or notice of such condition prior to his incident of scalding water. The State reiterated that its witness testified to the fact that there were no work orders or maintenance records in the [*4]prior six months showing any problem with the water temperature regulation system, anti-scalding devices or the showers themselves. In opposition, the claimant argued that there were issues with the showers and construction preventing fellow incarcerated individuals from taking showers for a period of time. He maintained that DOCCS may have made repairs to the showers without filing paperwork or a work order. Finally, he denied he was scalded with his hot pot burner because "water doesn't get that hot." The State then renewed its motion to dismiss the case. After listening to both parties, the Court reserved decision on the oral motion to explore whether the claimant sufficiently proved negligence and damages by a preponderance of the evidence. This Court finds that he has not.

It is well settled that the State has a duty to maintain its facilities, including its correctional facilities, in a reasonably safe condition in view of all the circumstances (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Guzman v State of New York, 129 AD3d 775, 776 [2d Dept 2015]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). That duty does not, however, render the State "an insurer of the safety of its [incarcerated individuals] and negligence cannot be inferred solely from the occurrence of an accident" (Perez v State of New York, UID No. 2012-010-056 [Ct Cl, Ruderman, J., December 12, 2012]; see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]). In order to establish a breach of this duty, a claimant must establish that: (1) a dangerous condition existed; (2) the defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (3) the condition was a proximate cause of the accident (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "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 defendant's employees to discover and remedy it" (Gordon at 837; see Rivera v 2160 Realty Co., LLC, 4 NY3d 837, 838 [2005]; Deveau v CF Galleria at White Plains, LP, 18 AD3d 695 [2d Dept 2005]).

Applying these principles to the matter at bar after listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the claimant has failed to prove by a fair preponderance of the credible evidence that the State was negligent in the happening of his accident. At trial, the claimant presented evidence that he had burned himself with a burst of extremely hot water coming out unexpectedly from the shower at Sullivan. He also candidly testified that he has been incarcerated at Sullivan since 2018, and "showers once a day everyday" in the same area without any incident. That amounts to several hundreds of showering by the claimant without any scalding. There were certain inconsistencies in his testimony too. Although the Claim in evidence supported his testimony that he immediately notified the correction officer of the burn that morning, he later testified on cross-examination that he noticed the redness and blisters on his stomach only later that evening while getting ready to sleep. The three small circular scars the Court observed on his belly do not appear consistent with the burn as described. Nor did the claimant recall the name of the correction officer to whom he complained or brought him as an eyewitness.

Significantly, there was no proof that the State had any notice of a potentially dangerous condition with respect to the showers and failed to properly addressed it in a timely manner (see Perez v State of New York, UID No. 2012-010-056). To this point, Mr. Lopez's testimony was more credible than that of the claimant when he testified that there are "three lines of defense" to guard against burns to incarcerated individuals, including the hot water main being regulated to [*5]only reach a temperature of between 105 and 110 degrees, as well as two "mixing valves" or "anti-scalding devices," which receive the water from the cold and hot water mains and further regulate or decrease the water temperature to that preset temperature. Mr. Lopez also credibly testified that he has never heard or experienced any dangerous or scalding condition with the showers temperature regulating system in his ten-year experience at several correctional facilities. With this record, the claimant has failed to establish that the condition of the shower in which he was allegedly burned constituted a dangerous condition created or known by the State.

In accordance with the foregoing, the Court finds that the claimant failed to prove by a fair preponderance of the evidence that the State negligently maintained the shower, or had any notice of the defective condition causing his burn. Accordingly, the Court grants the State's oral prima facie motion to dismiss, and hereby dismisses Claim No. 1350. Let judgment be entered.

Dated: May 17, 2023

New York, New York

Hon. JAVIER E. VARGAS

Judge of the Court of Claims Footnotes

Footnote 1:Unless otherwise indicated, matters in quotations are to the Court's own trial notes or audio recording.