New York State Court of Claims

New York State Court of Claims
SMART v. THE STATE OF NEW YORK, # 2018-029-087, Claim No. 128332


Pro se claimant failed to present prima facie evidence at video trial that defendant breached its duty to provide a reasonably safe shower area at Bedford Hills Correctional Facility. The court found defendant not liable for negligence and dismissed the claim.

Case information

UID: 2018-029-087
Claimant(s): PAMELA A. SMART
Claimant short name: SMART
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128332
Motion number(s):
Cross-motion number(s):
Claimant's attorney: PAMELA A. SMART, PRO SE
By: Matthew H. Feinberg, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 13, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


A video trial of the pro se claim for negligence was held on August 22, 2018. Claimant and Assistant Attorney General Matthew Feinberg were located at Bedford Hills Correctional Facility ("Bedford"), and the court was located at the courthouse in White Plains. The claim alleges that the State breached its duty to provide a reasonably safe shower area for inmates assigned to housing unit 113 C/D at Bedford by failing to put rubber mats inside and outside the shower stalls. Claimant testified on her own behalf and the court admitted one exhibit. Defendant presented Captain Paul Artuz to testify and admitted no exhibits.

Claimant testified that on March 8, 2015, she was assigned to housing unit 113 C/D at Bedford. She went to the shower stalls for that unit to take a shower and was wearing shower shoes that she purchased from outside the facility rather than the shoes provided by the facility. The showers are stainless steel and are cleaned several times a day. No shower mats were inside the stalls. She slipped and fell, cutting her elbow. Claimant filed a grievance on March 10, 2015. The response to claimant's grievance was that mats had been ordered and installed. She is aware of only four mats placed outside the four shower stalls, but none inside. She was told that having mats inside the stalls is unsanitary.

Claimant asserted that other inmates in the same housing unit had fallen in the showers and filed grievances about the lack of shower mats. Exhibit 1 is a redacted grievance by another inmate filed April 21, 2014. The inmate complained that on February 9, 2014, while she was cleaning the showers in housing unit 113 C/D at Bedford, she slipped and fell. She requested that mats be put in the showers. On September 17, 2014, the Central Office Review Committee ("CORC") concluded, inter alia, that:

"CORC asserts that there is no requirement to place mats in the shower areas. CORC notes that all mats were replaced in May 2014 and replacements have been ordered through the Business Office. CORC upholds the discretion of the facility administration in this matter [. . .]

With respect to the grievant's appeal, CORC advises her to address any further concerns to an area supervisor."

Claimant rested. Defendant moved to dismiss the claim pursuant to CPLR 4401 for failure to present prima facie evidence of negligence. The court reserved on the motion.

Captain Paul Artuz testified that he became a correction officer in 1996 and attained the rank of Captain at Bedford in 2012. He worked for ten months at Central Office, then returned to Bedford where he supervises safety and security for the inmates. The facility and administration use discretion in operation of the facility. He is involved in operating decisions. When inmates arrive at Bedford they receive shower shoes, but are also allowed to buy their own from outside the facility. In March 2015, there were mats outside the shower stalls. There are no mats inside the showers for reasons of hygiene and there have not been since 2012. The facility is not required to put mats in the shower stalls.

On cross-examination, Captain Artuz testified that the shower shoes given to the inmates are made of foam. Mats are not needed inside the stalls. Water drains through the ones outside the stalls, where the inmates disrobe. Since returning to the facility in 2012, the facility has not purchased mats to be put inside the shower stalls. He is aware the showers are cleaned three times daily with germicidal solution. There is nothing inside the stalls to prevent an inmate from slipping.

Defendant rested, then moved to dismiss the claim. The court reserved on the motion.

As a landowner, the State has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]). This duty applies to the State's responsibility for its correctional facilities (see Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]), and in that setting extends beyond the State's role as a property owner. "Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [them]" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). That duty does not, however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable (id.; see Villar v Howard, 28 NY3d 74, 80 [2016] [finding facility need not foresee specific harm]).

"[I]n a slip and fall case, it is incumbent upon Claimant to establish that: (1) a dangerous condition existed; (2) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant" (Braithwaite v State of New York, 26 Misc 3d 1239[A] [Ct Cl 2009], citing Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]).

"The determination as to whether a condition is dangerous, requiring the landowner to then take remedial measures to correct the condition, depends upon the context or circumstances of each case" (Forbes v State of New York, UID No. 2013-009-041 [Ct Cl, Midey, J., Jan. 8, 2014] [no proof toilet collapsed due to dangerous condition]; see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [action over minor defect in pavement dismissed]; see also Touloupis v Sears, Roebuck & Co., 155 AD3d 807, 808 [2d Dept 2017]).

Claimant argued that the bare stainless steel floor in the shower stall was a dangerous condition, and defendant's failure to use shower mats to alleviate the condition was a breach of its duty to keep inmates reasonably safe. The court disagrees. The evidence did not establish that the lack of a mat in the shower stall was a "dangerous condition." The fact that a shower floor is wet is "necessarily incidental to the use of the shower stall" (Barron v Eastern Athletic, Inc., 150 AD3d 654, 655 [2d Dept 2017] [summary judgment for gym affirmed where patron slipped on wet shower floor]). Unlike conditions in prisons over which an inmate has no control, such as physical environment and violence by other inmates, claimant "slipped on water [s]he knew was present in the shower before entering" (id.). Claimant was aware she needed to be careful, and she did not present evidence of physical disability or other individual circumstances that could have warranted greater precautions.

The court also notes that defendant established that the facility's decision not to use mats in the shower stalls is discretionary, and there was no evidence the decision violated a specific regulation or policy. Defendant did not argue governmental immunity as a basis for its motions to dismiss, but it did include the affirmative defense in its answer to the claim.(1) "The common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions" (Valdez v City of New York, 18 NY3d 69, 75-76 [2011]; see McCants v Hempstead Union Free School Dist., 127 AD3d 941, 942 [2d Dept 2015] [dismissing complaint where governmental decision as to school crossing guard placement was discretionary], McLean v City of New York, 12 NY3d 194, 203 [2009]). "The courts traditionally have deferred to the discretion of correction officials on matters relating to the administration of prison facilities" (Matter of Doe v Coughlin, 71 NY2d 48, 59 [1987], cert denied 488 US 879 [1988]). As Captain Artuz testified, the decision whether to put mats in the shower stalls was within the discretion of the facility employees responsible for operating Bedford, a maximum security prison. The court will not second-guess the discretionary decisions of those administrators.

The court finds defendant not liable for negligence and dismisses Claim No. 128332. Defendant's motions to dismiss are denied as moot. The Clerk of the Court shall enter judgment accordingly.

September 13, 2018

White Plains, New York


Judge of the Court of Claims

1. The

fifth affirmative defense provides, "[D]efendant took actions which were privileged as being discretionary and governmental determinations and therefore the defendant is absolutely immune from any liability from such actions."