Opinion
Claim No. 131357
08-17-2022
Adrienne Walker, Claimant, v. State of New York, Defendant.
For Claimant: Jaroslawicz & Jaros, PLLC By: Dominic Boone, Esq. For Defendant: Hon. Letitia A. James, Attorney General of the State of New York By: Albert E. Masry, Esq., Assistant Attorney General
Unpublished Opinion
For Claimant: Jaroslawicz & Jaros, PLLC By: Dominic Boone, Esq.
For Defendant: Hon. Letitia A. James, Attorney General of the State of New York By: Albert E. Masry, Esq., Assistant Attorney General
Javier E. Vargas, J.
This Court, having presided over the instant liability trial, heard the testifying witnesses, examined the pleadings and exhibits in evidence, and listened to counsels' arguments, hereby makes these findings of fact deemed established by the evidence and reaches the following conclusions of law.
I.
This is an action commenced by Claimant Adrienne Walker (hereinafter "Claimant") in the New York State Court of Claims to recover damages for personal injuries against Defendant State of New York (hereinafter "State"). By Notice of Intention to File a Claim timely received on February 10, 2017, and Verified Claim filed April 26, 2018, the Claimant alleges that on December 27, 2016, she was physically injured when she tripped on the edge of a defective rug located at Bedford Hills Correctional Facility in Bedford Hills, New York, where she was incarcerated. Specifically, the Claimant alleges in her Claim that the accident occurred at 6:30 p.m. while walking through the vestibule area of the entranceway to Housing Unit 121A at Bedford Hills. She alleges that the State "had a duty to maintain the vestibule area in a reasonably safe condition" and "is vicariously liable for the negligence of its employees, officers, employees and contractors" (Verified Claim, April 26, 2018, ¶¶ 15, 16, at 3). By permitting the existence of a rug that was "raised, elevated, frayed, old, worn, raggedy, was not taped down, and was otherwise defective," the State was negligent "in failing to have efficient and sufficient personnel; in failing to maintain the vestibule in reasonably safe condition in failing to provide a passageway free of obstruction; in failing to tape down the edge of the rug in creating, permitting and suffering a dangerous condition to exist; in creating a trap and a hazard; in failing to warn of any danger; [and] in failing to monitor the area" (id. ¶ 17, at 3)
With respect to damages, the Claimant alleges in her Claim that she fell and sustained "injury to her left ankle, required surgery, including open reduction and internal fixation of pins, plates, and screws; displaced distal fibular shaft fractures, displaced malleolus fracture, trimalleolar fracture, left ankle; required at least three separate casts for seven (7) months; confined to wheelchair; required walker, cane, and crutches"(Verified Claim, April 26, 2018, ¶ 10, at 2). Due to her injury, she alleges "tingling and numbness [in her] left leg, ankle and foot, decreased range of motion, [in her] left foot, ankle, and leg difficulty walking; difficulty ambulating; difficulty with stairs; [and] required physical therapy" (id.). She was also "unable to attend weekly religious services and services during the month of Ramadan" (id.).
By Verified Answer filed on June 5, 2018, the State denied most allegations in the Claim, and asserted affirmative defenses including, but not limited to, that "the injuries or damages complained of were caused in whole or part by claimant's own culpable conduct or the culpable conduct of others for whom the State of New York has no legal responsibility" and the "Claimant failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages, and disabilities alleged in the verified claim." The matter was initially assigned to Court of Claims Judge Stephen J. Mignano, who held a preliminary conference on July 9, 2018, conferenced the case and supervised all discovery proceedings. A Note of Issue and Certificate of Readiness were filed on May 14, 2019.
It should be noted that, by Decision & Order dated February 10, 2020, the Court of Claims (Mignano, J.) partially granted the Claimant's application for an adverse inference against the State on the issue of liability due to its failure to properly preserve "the actual rug the Claimant tripped over," since it was removed from the vestibule years after the accident; it denied a separate request for sanctions with respect to discarding a video footage of the fall which was taped over in the normal course of business. However, in a subsequent oral ruling, Judge Mignano reconsidered his determination, and modified its ruling so that there would not be an adverse inference against the State, but a rebuttable presumption concerning the evidentiary validity of the rug. The Court then advised the parties, in a pre-trial conference held by Acting Presiding Judge Richard E. Sise on May 18, 2022, that it would await until there was foundational evidence at trial to determine the admissibility of the rug. The instant action was reassigned twice before being transferred to the Undersigned for trial by Order (Sise, A.P.J.) dated June 7, 2022. On June 28, 2022, the Undersigned presided over an in-person, bifurcated trial held at the Westchester County Court of Claims located in White Plains, New York.
II.
The first witness at trial was the Claimant, who testified during direct examination that she is a 58 years old, who cares for her mother and grandson, and was incarcerated in Bedford Hills Correctional Facility for fraudulently using someone else's credit card. She explained that there were about 100 women housed at the same dormitory, Housing Unit A121, at Bedford Hills and there was only one exit and entrance into the dormitory. After being there for about five days, on December 27, 2016, she testified that during her "movement times," she walked through the doorway into the vestibule toward the outside door exit, when her right foot got "snagged on the frayed end of the rug," causing her to fall and "snap" and fracture her left ankle. Following her fall, she noticed that the rectangular rug on the vestibule had a "rubber edge [that was] not flat and frayed" and "not taped down" (id.).
Unless otherwise indicated, quotations are to the Court's own trial notes.
After the Claimant fell on her back in the vestibule area, she testified that she looked over to the left and saw the edge of the rug and saw the patio area. She further testified that she saw the radiator and the ceiling. It was not until after the Claimant fell that she noticed the rug was not properly placed on the floor. She laid on the floor face up until she was carried to the prison hospital. The Claimant maintained she never saw the rug again. She mentioned that the first time she had seen the rug since the accident was at her deposition at the Attorney General's office sometime in 2018.
During cross-examination, Claimant affirmed that she was incarcerated in Bedford Hills because she pretended to be someone else by using a credit card that did not belong to her. She confessed that she took people's property that did not belong to her. In fact, she acknowledged to have previously committed multiple crimes during her life, and been incarcerated, including for seven prior felonies and twenty-three misdemeanor convictions ranging from forgery to petty larceny. She then testified that she had been in Housing Unit 121A for twenty-seven days prior to the accident, not five as she stated on direct. Furthermore, the Claimant stated that she had traversed over the rug seven times a day for 27 days, including that night, and never complained to prison officials about the rug prior to her fall. On the day of her fall, she testified that she volunteered to clean the visitors' room after dinner. To exit the bedroom and common area leading into the vestibule, the inside door of the unit had to be opened by the officer in charge.
Specifically, the Claimant testified that, at around 6:00 p.m., she exited the unit to go to the vestibule on her way to the visitors' room, and a "black male officer" called for movement, at which point, she walked through the door, not "focused" or "paid any mind to the rug" as she was walking, and her foot got snagged on the "frayed" rug. She described the rug as "bumpy and raggedy," but that she fell on the end of the rug that is not shown on the photos in evidence. The Claimant then said somewhat surprisingly that she "braced herself on the door jamb" because she didn't want to "hit her teeth and face" (id.). As impeachment, the State read the Claimant's deposition, where she stated that when she was looking up after the fall, she was "looking up in the sky" (Dep. Trans. at 70). On redirect, the Claimant emphasized that she actually saw the ceiling, radiator, rug, and the outside after she fell.
The Claimant's next witness was Officer Glenda Givans, an African American female unit officer on duty at the time of the fall, who had been assigned to Housing Unit 121A since 2006. On the day of the fall, Officer Givans testified she was scheduled for the night shift from 3:00 p.m. to 11:00 p.m. and that she let the incarcerated persons out during movements. She testified that she witnessed the Claimant falling and landing outside the unit away from the vestibule, however she did not see the cause of the fall. Officer Givans further testified that she did not recognize the Claimant at trial, nor did she see what caused her to fall. She explained that there is a rug between the vestibule of each unit, and those rugs are not tapped to the floor. According to Officer Givans, the rug was regularly maintained by picking up and cleaning it every morning, while the unit officer monitored.
During cross-examination, Officer Givans reaffirmed that the Claimant had been in Unit 121A for approximately 27 days. The Officer testified that there were seventy-two (72) incarcerated females in that unit, and that no one ever complained about the rug or fell on the rug prior to that date. Indeed, the inner door did not get caught on the rug as she opened it for the Claimant. On redirect, Officer Givans stated that she wrote an accident report of the fall, noting that the Claimant was approximately six feet past the outside door when she landed and you could see the sky from where she fell. On re-cross, Officer Givans testified that it was not accurate that the Claimant fell inside the vestibule. After the fall, she explained that Correction Sergeant Damian Skinner and Fire and Safety Officer Mark Oglesby came to the scene in order to take an incident report.
Next, the Claimant called Investigator Michael Christian of the New York State Attorney General's office as a witness. Investigator Christian explained that his duties involve investigating Court of Claims cases, reaching out to client agencies to obtain records, and visiting accident sites. He stated that he asked Captain Ortuse of Bedford Hills for permission to remove the rug, and it was Captain Ortuse who authorized him to retrieve the rug from Unit 121A on July 6, 2018. On that day, he was accompanied by Assistant Attorney General Albert E. Masry, Esq. - the same counsel at trial. Investigator Christian investigated the Claimant's trip and fall, then loaded the dark grey rug with tread marks into AG Masry's car trunk about 18 months after the accident. At the time, Investigator Christian did not notice anything unusual about the condition of the rug. The next time he saw the rug was at AG Masry's office, and it appeared to be in the same condition as when it was removed from the prison.
During cross-examination, the physical rug was brought into the courtroom for the witness's examination and comparison. Investigator Christian compared the rug photographs - A through D in evidence - with the physical rug in the courtroom. He noted that the photographs do not show certain salt stains that are currently on the rug. After comparing the two, however, Investigator Christian believed that the physical rug is the same as the rug in the photographs. On redirect, Investigator Christian testified that there are salt markings on the physical rug that he did not see on the day the rug was collected, and that the rubber border was missing. There is no fraying on the photos. However, on re-cross, Investigator Christian affirmed that the salt stains could have been there, and he just didn't pay attention. He further testified that he used the "distinct tread markings" to recognize the rug photographed and the rug in the courtroom as the same.
Next, the two parties agreed to read portions of the depositions previously taken of Bedford Hills' Correction Officers Damian Skinner and Mark Oglesby because of their unavailability for the in person trial. According to Officer Skinner's deposition of February 11, 2019, when inmates arrive at Unit 121A, they are told to clean the vestibule at the direction of the correction officers, and it is usually cleaned two or three times a day by inmates. The floor is swept, mopped and the rug is not taped down, just placed down, because of heavy traffic. Usually, the unit's inner door is always closed except for movement of inmates. He stated that he remembers the accident happening on the porch outside the vestibule. When he arrived at the scene after the fall, the Claimant was sitting outside the porch area, about five feet from the entrance and was on the floor. He remembers Officer Givans and other officers keeping crowd control over the area. While there was video footage of the fall, it could not be obtained by the Claimant as it was undisputed that the policy of the Department of Corrections and Community Supervision is to tape over the video footage every 30 days, and the Claimant requested the footage after it had already been discarded.
In Officer Mark Oglesby's deposition dated November 8, 2018, he stated that he is the Fire and Safety Officer who is responsible for all fire and safety equipment at the Bedford Hills facility. Additionally, he investigates car accidents and writes injury reports. Officer Oglesby testified that he was at work and investigated the Claimant's fall but does not know what caused her fall. There was a video camera in the vestibule over the inner door facing toward the outer door in the direction of where Claimant fell; however, the footage from the videotape was taped over. He requested nurses for the medical emergency, started investigating by taking photographs of the location and saw the rug at the time of the accident because he arrived there five minutes later. According to what he knew and what Officer Givans told him, Officer Oglesby believed that the Claimant fell outside, in front of the outside door, while leaving the unit. Therefore, the photographs taken do not show the end of the rug that the Claimant claimed to have tripped on. He took the photographs that are admitted into evidence at trial. Finally, his deposition notes that the rug was not removed from the premises until 2018. The Claimant then rested her case.
At the conclusion of the trial, both the Claimant and the State orally moved for a directed verdict in their respective favor. The Court preliminarily denied the Claimant's motion for a directed verdict on liability against the State, pending the presentation of its case. After both parties rested their cases without any additional witnesses for the State, the Court entertained oral summations. In summation, the State argued that the Claimant failed to prove by a preponderance of the evidence that the rug created a dangerous condition or that the State even had notice of the same with sufficient time to correct. For her part, the Claimant maintained that there should be a liability verdict in her favor because the State created the dangerous condition of a frayed, raised, not taped down rug which caused her trip and fall accident and injuries. After summations, counsel waived their right to written memoranda, and the Court reserved decision on both oral motions.
III.
It is well settled that the State has a duty to maintain its facilities, including its correctional facilities, in a reasonably safe condition in view of all the circumstances (see Sánchez v State of New York, 99 N.Y.2d 247, 252 [2002]; Miller v State of New York, 62 N.Y.2d 506, 513 [1984]; Preston v State of New York, 59 N.Y.2d 997, 998 [1983]; Guzmán v State of New York, 129 A.D.3d 775, 776 [2d Dept 2015]; Condon v State of New York, 193 A.D.2d 874 [3d Dept 1993]). "That duty does not, however, render the State an insurer of inmate safety" and negligence cannot be inferred solely from the occurrence of an accident (Sanchez v State, 99 N.Y.2d at 253; see Killeen v State of New York, 66 N.Y.2d 850, 851 [1985]; Muhammad v State of New York, 15 A.D.3d 807 [3d Dept 2005]). In order to establish a breach of this duty, a claimant must establish that: (1) a dangerous condition existed; (2) the defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (3) the condition was a proximate cause of the accident (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]). "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 defendant's employees to discover and remedy it" (Gordon at 837; see Rivera v 2160 Realty Co., LLC, 4 N.Y.3d 837, 838 [2005]; Deveau v CF Galleria at White Plains, LP, 18 A.D.3d 695 [2d Dept 2005]).
Applying these principles to the matter at bar, the Court holds that the Claimant has failed to prove the State's negligence by a preponderance of the evidence, and her Claim, therefore, fails. The first main issue is whether the State either created the alleged defective condition of the rug or had sufficient notice, actual or constructive, about the defect. The testimonial and documentary evidence adduced by the Claimant at trial failed to show that the State had created the alleged defect. Neither the Claimant's nor the Correction Officers' testimonies create a reasonable inference as to whether the State was culpable in creating the allegedly dangerous condition of the rug. The Claimant's own witnesses, Officers Givans, the unit officer the day of the accident, and Officer Skinner testified that the rug was cleaned and maintained every morning by inmates while monitored by a unit officer. Both the Claimant and Officer Givans testified that they did not see any defect or had any complaints about the rug prior to the Claimant's accident. The Claimant testified that she walked on that same rug several times a day for 27 days without incident. In fact, although the same rug was traversed over several times a day by her and approximately 72 other incarcerated persons, it is undisputed that there was no prior accident or complaint logged about the rug's allegedly dangerous condition.
Nor do the photographs presented at trial capture any visibly dangerous defect on the rug. This Court carefully examined the physical rug brought out to the courtroom during trial and compared it to the relevant photographs, which show the same old rug with some threadbare portions in the center, but surprisingly flat and not bumpy or frayed. As such, there was a lack of evidence demonstrating to this Court that the defect was apparent to the State prior to the accident, therefore the Claimant did not show that the State had notice. The remaining testimony failed to establish that the rug condition, which allegedly caused the Claimant's fall, existed for a sufficient length of time prior to the accident to permit the State to discover and remedy it (see Gordon v American Museum of Natural History, supra at 837; Campanella v Marstan Pizza Corp., 280 A.D.2d 418 [1st Dept 2001]). "The absence of evidence demonstrating how long a condition existed prior to a plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law" (Anderson v Cent. Val. Realty Co., 300 A.D.2d 422, 423 [2d Dept 2002], lv denied 99 N.Y.2d 509 [2008]; see McDuffie v Fleet Fin. Group, Inc., 269 A.D.2d 575, 575 [2d Dept 2000]; Campanella at 418). Therefore, the State did not have actual notice or constructive notice of any defect in the rug prior to the accident (see Anderson, at 423; Dane v Taco Bell Corp., 297 A.D.2d 274, 275 [2d Dept 2002]).
IV.
Moreover, the Claimant's testimonial and documentary evidence failed to demonstrate that the rug was the proximate cause of the Claimant's injuries. "Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action" (Vojvodic v City of New York, 148 A.D.3d 1086, 1087 [2d Dept 2017]; see Viviano v KeyCorp., 128 A.D.3d 811, 811-812 [2d Dept 2015]). "Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation" (Ash v City of New York, 109 A.D.3d 854, 855 [2d Dept 2013]; see Alabre v Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 1287 [2d Dept 2011]; Manning v 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435 [2d Dept 2006]).
Here, the Court finds the testimony of the Correction Officers was much more credible than the Claimant's testimony. The Court further finds that Claimant was inconsistent in her testimony, providing different versions at her deposition and trial - she testified that the rug was both "flat and frayed" as well as "bumpy." Additionally, during trial the Claimant testified that she tripped on the rug and landed inside the vestibule, but at her deposition, she clearly said that after she landed, she was "looking up in the sky." The credible and consistent Officer Givans testified that while she did not see what caused the Claimant to fall, she saw the Claimant land outside the vestibule, approximately six feet from the door outside. Officer Skinner's deposition aligns with Officer Givans's testimony that he saw the Claimant on the floor outside of the vestibule when he arrived and called for medical assistance. This appears consistent with the Claimant's unexpected statement at trial that she "braced herself on the door jamb" because she could have done that only while falling outside the vestibule by the outside door. If it is just as likely that the fall was caused by a misstep, "any determination by the trier of fact as to causation would be based upon sheer speculation" (Ash at 855). Based on the conflicting testimony, this Court finds that it is more likely that the Claimant took a misstep and fell outside of the vestibule, than tripping on the rug (see id.; Vojvodic at 1088).
V.
In accordance with the foregoing, the Court finds that the Claimant failed to prove by a preponderance of the evidence that the State negligently maintained the vestibule, or had any notice of a defective condition, causing her to trip and fall. Accordingly, the Court enters judgment in favor of the State, and hereby dismisses the Claim. Let judgment be entered forthwith.