New York State Court of Claims

New York State Court of Claims
TILFORD v. THE STATE OF NEW YORK, # 2020-053-008, Claim No. 130677


Following a trial on the issue of liability only, the Court determined that claimant established that the deteriorated condition of the sidewalk where he tripped and fell was a dangerous condition, that the State had both actual and constructive notice and that its condition was a substantial factor in causing claimant's injuries. The Court also determined that claimant bears 50% culpability.

Case information

UID: 2020-053-008
Claimant(s): OTIS TILFORD
Claimant short name: TILFORD
Footnote (claimant name) :
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130677
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH, P.C.
BY: Brian Dratch, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 11, 2020
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Otis Tilford alleges that on September 20, 2017, he sustained personal injuries after he tripped and fell on a cracked and uneven section of sidewalk at the Collins Correctional Facility (Collins) where he was incarcerated. A claim alleging negligence was filed on December 6, 2017. On January 16, 2018, the State filed an answer denying the allegations in the claim.

On March 9, 2020, a trial on the issue of liability only was held in Buffalo, New York, where testimony in support of the claim was received from claimant. In defense of the claim, the State provided testimony from Sergeant Adam Bishop (Sgt. Bishop), a correction Sergeant employed by the Department of Corrections and Community Supervision (DOCCS) assigned to Collins. Following the trial, the parties requested an opportunity to prepare and submit post-trial memoranda, which was granted to June 17, 2020.


The claimant testified that he is currently incarcerated at Collins for a class C felony of arson to which he pled guilty. At the time of the subject incident on September 20, 2017, claimant had been at Collins for about two months. When he arrived, he was assigned to Dormitory D-4. On the evening of the subject incident, a call was made by the correction officer assigned to Dormitory D-4 to inform inmates who needed their prescribed medications to go to the Collins infirmary. Claimant testified that there was a morning and evening call for inmates who needed medications to go to the infirmary. On the evening of the incident, claimant testified that he went down the stairway and exited the dormitory onto a blacktop road where he gathered with 13 or 14 other inmates and they were then escorted to the infirmary (TT: 7-10).(2)

Claimant identified photo Exhibit 7 as depicting the area of sidewalk where his accident occurred next to Dormitory C and marked the particular section of sidewalk where his fall occurred (Exhibit 7A). He testified that the incident occurred between 8:00 and 8:15 p.m. and that the area where he fell was unlit. He testified that the infirmary was about a ten minute walk from the area where his fall occurred. Claimant testified that there were two ways to go to the infirmary from Dormitory D. He stated that the alternative route would go around Dormitory D and was utilized in the event that there was a lot of snow. Claimant also identified the area where he fell in photo Exhibit 9 which depicted a closer view of the sidewalk section. He marked that photo exhibit at the location where his trip and fall accident occurred (Exhibit 9A) (TT: 10-14).

Claimant testified that after his fall he proceeded to the infirmary and told the nurse that he fell and filled out an accident report. Claimant identified the inmate injury report and his signature with the date of September 20, 2017 and the time of the injury to his wrist as 8:20 p.m. He stated that the description in the accident report was in his handwriting (Exhibit 4). Claimant also filed a grievance that he identified dated November 10, 2017 (Exhibit 1). The response by the Inmate Grievance Resolution Committee (IGRC) to claimant's grievance was read into the record indicating that following a hearing "[i]t is our recommendation that the action requested should be accepted. The sidewalk in question is a known problem and the facility is awaiting funding to be received" (Exhibit 2). Claimant also admitted the report of Collins Superintendent Thompson, who accepted the claimant's grievance and stated that "[a]n investigation was conducted and the following information was offered; facility administration is aware of the sidewalk in question and had already submitted for funding to repair the same. Once the funding is available the area will be fixed. The issue was also addressed by the facility Inmate Liaison Committee (ILC) who was informed of the same information" (Exhibit 3). Finally, claimant identified the report of the ILC of a meeting held on June 23, 2017 (Exhibit 6), which indicated that there was no specific timeline but that Collins would be scheduling needed repairs to the sidewalks (TT: 10-20).

On cross-examination, claimant testified that he was incarcerated at Collins for two months prior to the subject incident and during that time participated each day in morning and evening runs to the infirmary for his prescription medications. He testified that he had seen the cracks in the sidewalk where he fell prior to the subject incident and stated that he was "[j]ust not paying attention where I was walking" (TT: 20-21). Claimant testified that on the day of the incident, he was walking alone ahead of the other inmates and that they were distant from him when he fell. He stated that there were no witnesses to his fall and no inmates or correction officers were near him after he fell. Claimant testified that he told other inmates about his fall later but could not remember any of their names. On redirect examination, claimant testified that immediately prior to when he tripped and fell he was looking straight ahead (TT: 21-24).

Sgt. Adam Bishop testified that he held that rank on the date of the subject incident and has been employed by the DOCCS for the past 22 years and as a sergeant for the past seven years. Sgt. Bishop testified that he interviewed claimant with respect to the grievance that he filed. He testified that he prepared a memo after interviewing claimant (Exhibit A) in which he stated that claimant told him that he did not tell the infirmary officer or the nurse about falling and hurting his wrist (TT: 27-28). On cross-examination, Sgt. Bishop was shown the inmate accident report that was prepared immediately following claimant's fall (Exhibit 4) and he stated that he had not seen it previously. He testified that the back of Dormitory C is depicted in photo Exhibits 7 and 9. Sgt. Bishop was familiar with the area of sidewalk where claimant's fall occurred, that these two photos show the sidewalk to be in a cracked condition, but he could not recall if he had seen those cracks during 2017 (TT: 28-31).


In general, the State has a duty to maintain property it owns in a reasonably safe condition in view of all circumstances, which includes evaluating the likelihood of injury to others, the seriousness of the injury and the burden to avoid that risk (Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]). Furthermore, the State having assumed custody of an inmate owes a duty to use reasonable care to safeguard inmates from foreseeable risks of harm (Sanchez v State of New York, 99 NY2d 247 [2002]). In that capacity, the State is not held to be 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 [2001]).

The duty of care owed to inmates 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 what the State "is or should be aware" of (Sanchez, Id. at 255). Where a hazardous or dangerous condition is alleged to exist, the State may be held liable when it has actual or constructive notice of the hazardous condition and fails to take reasonable measures to correct the danger (see Friedman v State of New York, 67 NY2d 271, 286 [1986]). Whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 [1997]).

The Court, as fact-finder, will assess the evidence and the credibility of the witnesses and resolve any factual disputes to determine whether the claimants have met their burden to establish negligence (Ring v State of New York, 8 AD3d 1057 [4th Dept 2004], lv denied 3 NY3d 608 [2004]; Janczylik v State of New York, 126 AD3d 1485 [4th Dept 2015]).

I find that the proof at trial established that the State had actual notice of the deteriorated condition of the sidewalk where the subject incident occurred and had determined that the sidewalk would be replaced when funding was secured for that purpose. Upon examination of the photo exhibits received in evidence, the Court finds that the section of sidewalk where claimant fell was not level and that it and the sidewalk section immediately in front of it are on an incline of several inches. From the photo exhibits received in evidence, I find that the sidewalk section where claimant fell and the section immediately in front of it were both in a deteriorated state with numerous cracks that created an uneven and dangerous walking surface.

The sidewalk section where claimant fell has eight cracks on the right side and two cracks on the left side, while the next section of sidewalk in front of it has six or seven cracks on the left side. While the preceding sidewalk sections are at grade, these two sections have an incline of several inches. I find that the sidewalk section and the area where claimant fell was in a very deteriorated state and was broken into eight irregular pieces on the right side where claimant was walking that evening and that these cracks covered more than one-third of its surface area (Exhibit 10). In examining this photo exhibit and the condition of these two sidewalk sections, I also find that the state of the subject sidewalk section made it extremely difficult for individuals generally, and claimant in particular, to safely walk across it at night without confronting a cracked and deteriorated portion of sidewalk. Although no testimony was received to provide the actual or estimated differential in height of the broken sections of sidewalk caused by the various cracks, New York law recognizes that there is no "minimum depth" in order for a defect in pavement to be actionable (see Bruinsma v Simon Prop. Group, Inc., 74 AD3d 859 [2d Dept 2010]).

Accordingly, I find that the testimony, photo exhibits and other evidence establish that the deteriorated condition of the sidewalk section where claimant fell created a dangerous condition, especially at night when an individual walking on it would not readily notice or discern the presence and location of the cracks in the sidewalk to be able to traverse it safely and maintain their balance while doing so. I find that the State breached its duty to use reasonable care to safeguard the claimant from a foreseeable risk of harm. I also find that the presence of cracks and depressions in the sidewalk section where claimant tripped and fell was a substantial factor in bringing about his injuries. Thus, upon weighing the evidence and considering all of the proof, I find that claimant has established by a preponderance of the credible evidence that the State breached its duty by failing to maintain the sidewalk in a reasonably safe condition or by closing off the broken and deteriorated sections of sidewalk until they obtained funding for its repair and redirecting the inmates to utilize the alternate available walking route to the infirmary.

I also find that claimant must bear responsibility for his injuries. CPLR 1411 provides that in any action to recover damages for personal injury, the culpable conduct attributable to the claimant, including contributory negligence, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. I find that the evidence at trial established that claimant was familiar with this sidewalk as he had walked to the infirmary on this route daily for about two months prior to the subject incident. I also find that the deteriorated condition and cracks existing in the sidewalk section were both open and obvious. However, the law is clear "the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner's duty to maintain his or her property in a reasonably safe condition" (MacDonald v City of Schenectady, 308 AD2d 125, 127 [3d Dept 2003]), and as such relates to the issue of the claimant's comparative negligence (Tulovic v Chase Manhattan Bank, 309 AD2d 923, 924 -925 [2d Dept 2003]). Claimant testified on cross-examination that he was aware of and had seen the cracks in the sidewalk where he fell prior to the subject incident and admitted that he was not paying attention. Accordingly, I find that claimant bears culpability for his injuries and I apportion 50% liability for his trip and fall accident to claimant and 50% liability to the State.

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.

August 11, 2020

Buffalo, New York


Judge of the Court of Claims

2. References to the trial transcript will be with the designation "TT" and page numbers, e.g., TT:1-2.