Defendant brings a motion to dismiss the claim. There is no view of the evidence which supports a finding that the amount of water in the shower area was unusual or created an unreasonably dangerous condition above and beyond that typically encountered. Nor is there anything to support a finding that Defendant created or had actual or constructive notice of the alleged unusually slippery condition of this particular shower (see Seaman, 45 AD3d 1126). The claim is dismissed.
|Claimant short name:||SANCHEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||LYNN LAW FIRM, LLP
By: Kelsey W. Shannon, Esquire
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 23, 2019|
|See also (multicaptioned case)|
Defendant brings a timely motion for summary judgment (CPLR 3212 [a]) arguing that the claim should be dismissed as a matter of law. In opposition to the motion, Claimant argues that there are questions of fact which require a trial. After reviewing all of the submissions, the Court grants Defendant's request for summary judgment.
Claimant filed a claim with the Clerk of the Court on June 21, 2017, seeking damages for personal injuries he sustained when he fell in the shower area of Housing Unit J1 at Watertown Correctional Facility. Claimant alleges in the claim that he slipped on water which had been negligently allowed to accumulate and remain on the floor which created a slippery, unsafe, dangerous, defective, and hazardous condition. Defendant interposed an answer to the claim and raised 12 affirmative defenses. Discovery has been completed and a note of issue filed on January 7, 2019. The claim is scheduled for trial.
Defendant, in support of its motion for summary judgment to dismiss the claim, relies heavily upon Claimant's deposition testimony and the deposition testimony of Micah A. Northrup, a correction officer for the New York State Department of Correction and Community Supervision who was assigned to Claimant's dorm the night of his fall. Officer Northrup saw Claimant as he came out of the bathroom after his fall and investigated what happened.
Claimant arrived at Watertown Correctional Facility in January of 2017. He had showered regularly prior to his accident and noted that the showers were small - only four showers, dirty, and always wet. Claimant indicated that inmates had to have permission to shower, and the correction officers actually had a button to turn on the showers. The accident happened around 11:00 p.m. on March 25, 2017. Claimant testified that he was trying to shower before the nighttime head count. He took his clothes with him and left them just outside the shower. After he finished showering and dressing, he stepped out and he tripped over an approximate six-inch step(1) with his left leg and slipped. He testified that it was necessary to step up on the step and then down. His leg got caught on the step and he "fumbled" and fell.(2) Claimant was wearing shower shoes at the time. Claimant identified the pictures attached to Defendant's motion.(3) He made a blue circle where he was in the shower area as he began to leave, and a greenish/yellow circle where he tripped on top of the step and fell. He fell forward into the bathroom area. He testified that it was "like wet out of the shower", there were puddles of water on the floor, although he did not indicate how deep the water was. He described the area as more slippery then usual. It was always wet and slippery from inmates showering and then walking out wet to get a towel and their clothes. He was moving from the light tiled area of the shower to the darker tiled area of the bathroom. Claimant did not indicate to the nurse, immediately after the incident, that there was an accumulation of water, and failed to mention an accumulation of water in his grievance filed some time after the incident.
Summary judgment is a drastic remedy that should only be granted when there is no material issue of fact (Vega v Restani Constr. Corp., 18 NY3d 499, 503 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ; Matter of Skelly v Carma Realty, Ltd., 78 AD2d 1005 [4th Dept 1980]). Defendant, as the proponent of this summary judgment motion, bears the burden to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). In considering the evidence submitted, the Court must view it in the light most favorable to the nonmoving party giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
Where the facts are not contested, summary judgment often may be appropriate (Andre v Pomeroy, 35 NY2d 361, 364 ). However, this is not always the case with negligence actions which are classically embedded with factual issues even when it appears the primary facts are not in dispute; because often whether the parties' conduct was reasonable under the circumstances is itself a question of fact (Ugarriza v Schmieder, 46 NY2d 471, 474 ; Chilberg v Chilberg, 13 AD3d 1089, 1090 [4th Dept 2004]). Only in rare circumstances, is it a question only of law whether the defendant has conformed to the required "standard of conduct" (Andrew v O'Brien, 45 AD3d 1024, 1028 [3d Dept 2007]). Typically, "[w]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury." (Clauss v Bank of Am., N.A., 151 AD3d 1629, 1631 [4th Dept 2017]).
Defendant, as a property owner has the duty to maintain its property, including its correctional facilities, in a reasonably safe condition under the circumstances (Preston v State of New York, 59 NY2d 997 ; Basso v Miller, 40 NY2d 233 ; Mosley v State of New York, 150 AD3d 1659 [4th Dept 2017]). For liability to be imposed, there must be proof that a dangerous or defective condition existed that the State either created or had actual or constructive notice of and failed to take appropriate remedial action (Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]). A condition on the property that is inherent or incidental and that can be reasonably anticipated by those using the property will not support a finding of liability (see O'Neil v Holiday Health & Fitness Ctrs. of N.Y., 5 AD3d 1009 [4th Dept 2004]; Stanton v Town of Oyster Bay, 2 AD3d 835[2d Dept 2003], lv to appeal denied 3 NY3d 604 ; Csukardi v Bishop McDonnell Camp, 148 AD2d 657 [2d Dept 1989]; see also Smart v State of New York, UID No. 2018-029-087 [ Ct Cl, Mignano, J., Sept. 13, 2018]; Texeira v State of New York, UID No. 2017-049-104 [Ct Cl, Weinstein, J., Oct. 2, 2017]; Vanderpool v State of New York, 2015-040-018 [Ct Cl, McCarthy, J., April 17, 2015]; Moore v State of New York, UID No. 2004-018-330 [Ct Cl, Fitzpatrick, J., Sept. 16, 2004]). In Seaman v State of New York, the Court found that "a wet floor - especially in a bathroom where one can expect some water to make its way out of the shower to the floor - is not enough, standing alone, to establish negligence" (45 AD3d at 1127; Jackson v State of New York, 51 AD3d 1251 [3d Dept 2008]). There must be some proof that the condition was such that it was unreasonably dangerous from conditions that would typically be expected (see e.g. Zibro v Saratoga Natl. Golf Club, Inc., 55 AD3d 998, 1000 [3d Dept 2008]; Todt v Schroon Riv. Campsite, 281 AD2d 782 ; Sciarello v Coast Holding Co., Inc., 242 App Div 802 , affd 267 NY 585 ). Even if the condition was such that it was unreasonably dangerous, there must be some evidence to show that the State created the condition or had actual or constructive notice of it (Keller v Keller, 153 AD3d 1613, 1614 [4th Dept 2017]).
Here, relying upon Claimant's testimony, the State has established that there was no defective condition, and the accumulation of water on the floor was not unusual but was attributable to inmates showering, being wet, and moving around the area to get a towel and dress. There were no other falls and no complaints about an unusual or slippery accumulation of water. Although Claimant testified that the wetness seemed more slippery than usual, Defendant adequately established that it had no notice of such a condition. In opposition, Claimant has failed to come forward with evidence of an unreasonably dangerous condition or proof of the State's notice. Although the shower area was wet, Claimant was wearing shower shoes and was familiar with the shower area. A wet shower area is inherent or incidental with the use of an area with multiple showers (see Barron v Eastern Athletic, Inc., 150 AD3d 654, 655 [2d Dept 2017] [summary judgment for gym affirmed where patron slipped on wet shower floor]).
There is simply no view of the evidence which supports a finding that the amount of water in the shower area was unusual or created an unreasonably dangerous condition above and beyond that typically encountered. Nor is there anything to support a finding that Defendant created or had actual or constructive notice of the alleged unusually slippery condition of this particular shower (see Seaman, 45 AD3d 1126).
Accordingly, Defendant's motion is GRANTED.
August 23, 2019
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, together with exhibits attached thereto.
3) Defendant's Memorandum of Law in support dated April 29, 2019.
4) Affirmation of Kelsey W. Shannon, Esquire, in opposition with exhibit attached thereto.
5) Claimant's Memorandum of Law in opposition dated June 24, 2019.
6) Defendant's Supplemental Memorandum of Law in support dated June 27, 2019.
1. Claimant's pictures made a part of Attorney Shannon's affirmation reflect a four-inch step.
2. Claimant's deposition transcript, Exhibit 8, p. 63.
3. Claimant's Exhibit 9.