New York State Court of Claims

New York State Court of Claims
LOWE v. THE STATE OF NEW YORK, # 2017-040-152, Claim No. 122594


Pro se Claimant failed to establish by a preponderance of the credible evidence that Defendant was responsible when he fell on the steps of the mess hall at a correctional facility.

Case information

UID: 2017-040-152
Claimant(s): VERNON LOWE
Claimant short name: LOWE
Footnote (claimant name) :
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122594
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Vernon Lowe, 94-A-8613, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Christina M. Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: December 14, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant, Vernon Lowe, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on January 25, 2013, when he fell on the steps of the mess hall at Bare Hill Correctional Facility (hereinafter, "Bare Hill"). The trial of this Claim was held by video conference on August 2, 2017, with the parties at Clinton Correctional Facility, and the Judge at the Court of Claims in Albany, New York.

At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's Answer. Claimant submitted into evidence five documents (Exhibits 1, 3, 4, 5, and 7). The Court also reserved its decision on the State's objections to the introduction into evidence of Claimant's Exhibits 2 and 6. Upon due consideration, the Court now overrules the objections to those exhibits, and they are admitted into evidence and will be considered by the Court. The State submitted one exhibit into evidence (Ex. A). Claimant testified on his own behalf and Defendant called one witness to testify, Lieutenant (hereinafter, "Lt.") Randall M. Coleman.

Claimant testified that, on January 25, 2013, he was exiting the mess hall after the evening meal and two other inmates were involved in a skirmish. Claimant stated that he tried to elude the inmates, but one of them backed into Claimant, causing him to miss a step on the stairs, resulting in him twisting his knee (see Court Ex. 1, 1, 2). Claimant stated he was taken to the medical unit at Bare Hill where he was examined by a nurse and given Motrin. He returned to the medical unit the following week, and he was given crutches and was sent for an MRI of his knee and x-rays. He said that the MRI revealed he had a meniscus tear and an ACL tear, along with a fractured shin bone.

Claimant stated that he believes that the correction officers on duty at the mess hall were negligent in that they did not monitor the area properly because they did not prevent the altercation between the inmates that caused his injury. He stated that having a correction officer (hereinafter, "CO") in the officer's "shack" or "bubble" was insufficient security. Claimant submitted into evidence a response from Bare Hill, dated March 29, 2013, to Claimant's request for documents related to injuries sustained by Claimant on January 25, 2013 (Ex. 1). The document indicated that the records requested do not exist and that medical records must be obtained from the Nurse Administrator. Claimant also attempted to obtain information regarding the altercation that he testified caused his injury by requesting a copy of the facility hospital logbook to obtain the names of the inmates involved in the January 25, 2013 incident (Ex. 2). The request was denied on the basis that the information would endanger the safe and orderly operation of Bare Hill (Ex. 3).

Lt. Coleman testified that he has been employed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") for almost 18 years and has spent most of that time at Bare Hill. He stated that, on January 25, 2013, he was a sergeant working the day shift at Bare Hill. The witness testified that he is aware of the safety procedures and security coverage in the mess hall at Bare Hill. He stated that there are 11 correction officers inside the mess hall at meal time and there is an officers' bubble located outside the mess hall about 20 yards from the mess hall doors, and that the officers in the bubble have an unobstructed view of the outside area.

The witness testified that he investigated Claimant's grievance that he was injured because of an incident involving other inmates. He spoke to the CO in the bubble at the time of Claimant's fall, CO Clary, and learned that CO Clary did not see an altercation, but he did see an inmate fall down, and he responded. CO Clary stated that Claimant told him that he slipped as he was going down the steps of the mess hall. The witness stated that no CO on duty at the time of Claimant's fall reported any incident or altercation at or near the mess hall at or about the time of Claimant's fall. The Fire and Safety Officer investigated Claimant's fall and did not find that an unsafe condition existed. He found that the steps were sanded and dry. The witness concluded, based upon his investigation, that Claimant was not injured peripheral to an inmate altercation.

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 Court finds that Lt. Coleman provided generally sincere and forthright testimony, however, the Court finds that Claimant was less credible. The Court finds that Claimant did not meet his burden of proof and failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with its supervision of the inmates on their way to and from the mess hall at Bare Hill and that Claimant was injured as a result of an altercation between inmates.

"[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]). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it 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]). 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 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 [3d Dept 2011]).

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]). "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]).

"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 [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315 [3d Dept 2007]).

"The critical issue to be resolved is whether, under the prevailing conditions, the State fulfilled its duty to take appropriate measures to keep the [roadway/pathway] safe" (Goldman v State of New York, 158 AD2d 845, 845 [3d Dept 1990], appeal dismissed 76 NY2d 764 [1990]; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept 2007], quoting Pappo v State of New York, 233 AD2d 379, 379 [2d Dept 1996]).

The standard of reasonableness in slip-and-fall cases involving snow and ice also must be assessed "with an awareness of the realities of the problems caused by winter weather," meaning that "there must be evidence that the presence of the snow or ice created a dangerous condition which defendant knew or in the exercise of reasonable care should have known existed" in order to establish a breach of duty in such cases (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]; see Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]; Fusco v Stewart's Ice Cream Co., 203 AD2d 667, 668 [3d Dept 1994]). "[A] landowner's obligation to take reasonable measures to correct storm-created snow and ice conditions does not commence until after the storm has ceased" (Hilsman v Sarwil Assoc., L.P., 13 AD3d 692, 693 [3d Dept 2004]) and for a reasonable time thereafter (Wood v Schenectady Mun. Hous. Auth., 77 AD3d 1273 [3d Dept 2010]; Boynton v Eaves, 66 AD3d 1281 [3d Dept 2009]). Claimant bears the burden of showing that the State failed to exercise due care to correct a dangerous condition within a reasonable time after the cessation of the weather (Marcellus v Littauer Hosp. Assn., supra at 681).

In Correa v State of New York, UID No. 2009-013-506 (Ct Cl, Patti, J., Oct. 23, 2009), the Court quoted from Crabtree v State of New York (Ct Cl, Claim No. 85882, Bell, J., March 11, 1994) as follows:

it is virtually impossible to clear all snow and ice from areas in northern portions of New York in the wintertime. The fact that an inmate falls on correctional facility premises does not render the State liable if the conditions existing at the time of the accident were not so unusual, dangerous or different from the conditions ordinarily prevailing during the winter months in the locality (citations omitted).

Moreover, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one's senses. Where the condition is open and obvious, "the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 [1991]; see also Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2d Dept 2007]; Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]; Herman v State of New York, 94 AD2d 161 [2d Dept 1983], affd 63 NY2d 822 [1984]).

Here, the Court finds that Claimant failed to establish by a preponderance of the credible evidence that a dangerous condition existed, or, assuming that one did exist, that Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time. In fact, the only testimony regarding the condition of the steps where Claimant fell was provided by Lt. Coleman, who stated that the Fire and Safety officer determined that the stairs were dry and sanded.

Based upon all the foregoing, the Court concludes that Claimant failed to establish his Claim by a preponderance of the credible evidence and the Claim is dismissed.

All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

December 14, 2017

Albany, New York


Judge of the Court of Claims