After a trial of this claim alleging that the pro se claimant slipped and fell due to the negligence of the State, the Court dismissed the claim as claimant failed to establish that a dangerous condition existed.
|Claimant short name:||LUMPKIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||KENNETH LUMPKIN, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 29, 2020|
|See also (multicaptioned case)|
Pro se claimant Kenneth Lumpkin alleges in claim no. 130926 that he was injured on September 18, 2017 when he slipped and fell on the floor of the dry storage room in the kitchen at the Collins Correctional Facility (Collins), where he was incarcerated. On November 1, 2017, a notice of intention was served upon the Office of the Attorney General and on January 31, 2018, a verified claim was filed. According to the claim, claimant slipped and fell upon a floor that was recently mopped, but where no safety cones were posted warning of the hazard in the Collins mess hall kitchen area. An answer was filed on February 8, 2018 denying claimant's allegations.
On November 22, 2019, a trial was held utilizing video conference technology. Claimant testified and testimony was also received on behalf of the defendant from Tina Errington.FACTS
The claimant testified that he was an inmate at Collins and worked as a cook in the mess hall. On September 18, 2017 at approximately 6:20 a.m., claimant was working in the kitchen and was ordered by a cook to take the remaining contents of a bag of oatmeal and return it to the dry storage room. Claimant testified that he had previously made oatmeal and had been working as a cook in the kitchen for the previous two months. His regular work shift was from 5:00 a.m. to 12:00 p.m.
Upon receiving the order from the cook, later identified at trial to be Tina Errington (Errington), claimant testified that he carried the bag of oatmeal(1) approximately 20 feet to the door outside the dry storage room. Claimant testified that Errington opened the door to the dry storage room and told him to be careful as there was a puddle of water just inside the door. He testified that there was no water on the floor outside the dry storage room and that at night, that floor is washed and there is nothing to stop water from going under the doors and inside the dry storage room. Claimant testified that the puddle inside was two to three feet wide. He testified that he was able to walk around the puddle to his left and proceed straight towards the shelves where he was to place the bag of oatmeal. Claimant testified that at this point his left leg slipped forward and his right leg slipped backward at the same time and he landed on the floor on his left side. He testified that after his fall he did not notice that any part of his clothing was wet and he did not notice whether his boots were wet. Claimant testified that the floor near the door to the dry storage room was rough and that the floor in the vicinity of the shelves where he fell was smooth. He testified that he did not notice any water on the floor in the area where he fell. In fact, claimant testified that the area of the floor where the fall occurred was ten feet from the puddle.
As a result of the fall, claimant testified that he suffered a tear of the quadriceps tendon of his right leg. He submitted the ambulatory health record progress notes for September 18, 2017, that were received in evidence (Exhibits 1 and 2). Claimant testified that following his fall, he was taken to Erie County Medical Center (ECMC) and that surgery was performed on October 3, 2017 (Exhibit 3). Claimant testified that he was discharged following surgery back to Collins and his right knee was placed in an immobilizer for six weeks. He testified that he remained in the infirmary at Collins for 60 days following his release from ECMC and was then transferred to the Wende Correctional facility infirmary for an additional two weeks. Claimant testified that presently, the range of motion of his right knee is 85% and he has to use a cane. He stated that he was advised that the only way to recover a full range of motion would be to undergo additional unspecified procedures. Claimant stated that his current complaints are tightness and buckling in the right knee. Finally, he stated that as a result of the subject injury, he is no longer able to stand to work as a cook.
Tina Errington testified that she is a civilian cook at Collins and has been employed there since April 13, 2017. She stated that she had worked with claimant for two weeks prior to his accident. Errington stated that access to the dry storage room is restricted and only accessed with a key. She stated that it was typical to request an inmate working in the kitchen to return unused items such as the oatmeal bag to the dry storage room. On the day of the incident, Errington testified that she requested that claimant return the unused portion of the oatmeal bag to the dry storage room. Errington identified five photographs that were received in evidence that depicted the kitchen in the vicinity of the dry storage room and the dry storage room doors (Photo exhibits A, B and C); the interior of the dry storage area (Photo exhibits C and D); and the metal shelving upon which claimant was to place the oatmeal bag (Photo exhibit E). Errington testified that the "Floor Is Slippery When Wet" and the "Please Make Sure That Any Water that Goes Underneath the Door Into the IG Room is Mopped and Dried Immediately, Thanks" signs were in place prior to claimant's incident. Claimant testified that only the "Floor Is Slippery When Wet" sign was in place as of the day of the incident. Errington testified that she marked the area where claimant fell inside the dry storage room with a white paper as depicted in the upper photo of Photo exhibit D. During cross-examination, claimant confirmed that this was the area where he fell. Errington testified that she did not recall there being any water inside the dry storage room from underneath the doors and the floor was not wet. Errington testified that there were no safety cones placed in that area as there was no water on the floor at the time of claimant's fall. She testified consistent with claimant's testimony that the floor is smoother in the area where claimant fell and that sometimes they wax that floor. Errington denied telling claimant to walk around a puddle and testified that she did not know why he fell.LAW AND ANALYSIS
The law is well settled that when the State assumes custody of an inmate, it owes that inmate a duty to use reasonable care to safeguard him from foreseeable risks of harm (Sanchez v State of New York, 99 NY2d 247 ). This duty of care to prevent foreseeable risks of harm is defined not simply by actual notice but also by constructive notice, i.e., what the State " 'knew or had reason to know' " and to what the State " 'is or should be aware' " (Id. at 255). However, the State is not an insurer of inmate safety and a claimant must demonstrate a failure by the State to take minimal protective measures when it knows or has reason to know of the likelihood that the harm suffered was a reasonably foreseeable consequence of the State's acts or omissions (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 ).
In order to establish a cause of action for negligence, the claimant must demonstrate by a preponderance of the credible evidence that: (1) the State owed a duty of care; (2) a dangerous condition existed that constitutes a breach of that duty; (3) the State had actual or constructive notice of that dangerous condition for a reasonable and sufficient length of time to be able to remedy that condition; and (4) the condition was a substantial factor in causing the claimant's injuries (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]). As stated above, the duty owed to claimant in this action was to use reasonable care to safeguard him from foreseeable risks of harm.
In order to determine whether claimant has met his burden of proof, the Court, as fact-finder, must weigh the evidence presented and assess the credibility of the testimony of claimant and of the two correction officers. The existence of a dangerous condition is a question of fact to be determined based upon the particular facts and circumstances of the case (Lupa v City of Oswego, 117 AD3d 1418 [4th Dept 2014]; Trincere v County of Suffolk, 90 NY2d 976, 977 ).
In the present action, claimant alleges that he fell as a result of a puddle inside the dry storage room as a result of the negligence of the State. In his notice of intention he makes no mention of a puddle, however, he does state that "the floor was unnoticeably wet". When cross-examined as to the meaning of this wording, claimant testified that he used the wrong words, although he did not clarify what he meant by this phrase. The claim does not clarify this issue either as he states in the claim that he fell upon a floor that was recently mopped but no safety cones were posted warning of the hazard of a wet floor. In any event, claimant's trial testimony was that there was a puddle that he walked around successfully and that he fell ten feet from that puddle when he slipped in an area of smooth floor directly in front of the metal shelves. Furthermore, claimant testified that after he fell, he did not notice that any part of his clothing was wet or that his boots were wet. On the other hand, Errington testified that there was no puddle inside the doors of the dry storage room, that the floor in front of the metal shelves was smooth and that she did not know what had caused claimant to fall on that day.
After considering all of the evidence produced at trial and listening to the testimony of claimant and observing his demeanor while doing so, I did not find the claimant's testimony credible as to the presence of a puddle, or the circumstances of his fall. Although I believe that he did fall and injure himself, I do not find that he established that he fell as a result of the existence of a dangerous condition inside the dry storage room. On the other hand, I did find the testimony of Ms. Errington to be credible and her testimony that there was no puddle in existence that claimant was required to walk around, that there was no water in the vicinity of the area where claimant fell, and that she did not know what caused him to fall (see Gordon v American Museum of Natural History, 67 NY2d 836 ). In that I find that there was no dangerous condition established, the additional elements of a negligence cause of action, i.e., whether the defendant had actual or constructive notice of that dangerous condition for a reasonable and sufficient length of time to remedy that condition; and whether the condition was a substantial factor in causing the claimant's injuries need not be addressed (see Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]). As a result, the Court determines that claimant has failed to establish by a preponderance of the credible evidence that the State was negligent in connection with this claim.
Accordingly, this claim is hereby dismissed. Any and all other evidentiary rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.
January 29, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
1. Claimant testified that when full, a bag of oatmeal is 50 lbs. He did not testify as to the weight of the bag but he did state that carrying the bag of oatmeal did not obstruct his view of the floor as he walked.