MAHONEY v. THE STATE OF NEW YORK, #2008-013-501, Claim No. 108642

Synopsis

Inmate claimant fell at night in the dark on a bat that had been left on the floor of an equipment storage shed. DOCS had deliberately cut off electricity and thus disabled the overhead lightbulb and all direct illumination in the shed at least five weeks earlier. The interior darkness created a dangerous condition which was a substantial cause of the events leading to the accident, even though Claimant did not demonstrate that the precise manner in which the accident happened was foreseeable. The State is answerable in damages.

Case Information
UID:

2008-013-501
Claimant(s):

JAMES MAHONEY
Claimant short name:

MAHONEY
Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

108642
Motion number(s):

Cross-motion number(s):

Judge:

PHILIP J. PATTI
Claimant?s attorney:

ROBERT W. NISHMAN, ESQ.
BY: SCHNEIDER, KAUFMAN & SHERMAN, P.C.BY: HOWARD B. SHERMAN, ESQ.
Defendant?s attorney:

HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant?s attorney:

Signature date:

January 23, 2008
City:

Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim relates to a slip and fall at Groveland Correctional Facility (Groveland) on July 31, 2001 at approximately 9:45 to 10:00 p.m., and was filed on December 12, 2003 pursuant to a decision and order granting Claimant permission to file a late claim. The trial of this matter was bifurcated, and this decision addresses issues relating solely to liability.

The underlying facts are little in dispute, and their brief recitation below will suffice. Claimant was an inmate at Groveland and was assigned to work as a recreation aide at the upper yard recreation shack[1] between the hours of 7:00 p.m. and 10:00 p.m. daily. The shack included an enclosed room measuring 8' x 10' or 12', which had a double or ?Dutch? door that allowed the top half of the door to be opened and closed independently of the bottom (see Exhibits 4 and B). The shed had a vertical ?sidelight? a little longer than the upper half of the door on the left looking from outside (Exhibits 4 and B)[2] and a rear horizontal window at the back of the shack, half of which was blocked by plywood (see Exhibits 8 and B). The other half of the building, adjacent to the enclosed storage room, was covered with a roof but otherwise open to the elements and was what might be called a porch. The entire structure sat on a platform which was one step elevated off the ground. The height of the step to the platform is not in issue before me and has no bearing on the accident. The shack was unlocked and opened at the beginning of Claimant?s shift and locked at the end of the shift, and was used for the storage of athletic equipment, including baseball bats, gloves, softballs and a heavy punching bag.

The back of the shack faced athletic fields which were illuminated in the dark by lights on tall poles, estimated to be at least 40' to 50' off the ground and perhaps as high as 60' to 70', which were aimed away from the shed toward the playing fields. Facing the front of the shack, behind and to its left, is a picnic table and a slightly elevated and covered stand which housed a television set (see Exhibits 2, 3 and 4). It is undisputed and the subject of a stipulation between the parties (Exhibit 9) that an employee of the Defendant had removed the television set and interrupted all electrical service to the rec shack in question on June 22, 2001, and that such electrical service was not restored until sometime after July 31, 2001, the date of the accident in question.

Claimant?s responsibilities as the recreation aide included the distribution of and retrieval of various pieces of athletic equipment stored in the shed. The Equipment Shack and Weight Yard Rules (Exhibit F), included the formal procedure calling for the exchange of an inmate?s ID card for a piece of equipment. The recreation aide would retain the ID card and return it to the inmate when the piece of equipment was returned. Claimant testified that he normally followed this procedure, but that when there was a softball game, with 18 gloves, baseball bats, etc., it was too much stuff, the inmates were in a hurry to play the game and he would just send it out without requiring the exchange of ID cards. He added that he had never had a problem with missing equipment, as it was always returned to the shed. Sometimes, however, it would not be handed to him, and might be thrown on the floor or outside the door. When that happened he would return the equipment to its proper place in the shack. It also appears that on occasion other inmates would not return borrowed equipment to the shed, and thus Claimant would retrieve the unreturned equipment himself, storing the same in the shack.

And thus, on the night of the incident in question at about 9:45 p.m., Claimant walked to the area adjacent to the rec shack and in front of the dormitory, depicted in Exhibit A, perhaps some 30 to 40 feet away, and retrieved the heavy punching bag to return it to its proper place in storage. This particular item was one that often would be left outside, sometimes overnight. The ?heavy? bag was estimated to weigh between 70 and perhaps as much as 100 pounds. He was carrying it on his right shoulder as he stepped with his left foot up onto the platform and took one step with his right foot into the shed. Claimant testified that he stepped on a baseball bat which had been left inside on the floor of the shed, roughly one foot from the entrance. He slipped and fell, hitting the leg of a table and the wall as he fell to the floor, causing the injuries complained of. He didn?t feel right, particularly his back, so he locked the door[3] and walked to his housing unit where he notified the correction officer at his dorm of his injury and was directed to ?medical.? He had no idea how or when the bat was left there and only noticed it after he fell. The only direct source of artificial light in the shed was from a single overhead light bulb, which as noted above had been inoperable for some five weeks prior to this incident.

The Defendant urges that there were other sources of what might be termed residual or ambient illumination near the shed, specifically two lights on the outside brick wall of the dormitory, some 15 to 20 feet from the shed. One light was directly above two exit doors about 8 feet above ground, and the other was on the same outside wall perhaps 25 to 30 feet above the ground, just below the roof and gutters of this two story structure. There was no evidence with respect to the number of bulbs or their wattage, although Matthew Crane, a civilian employee at Groveland, did suggest that they were either mercury or halogen lights. Interestingly, CO Kreisler had a clear recollection that those lights were operative that particular evening, while he had no recollection that the light in the shed was not working. The other source(s) of illumination suggested by the Defendant were the lights on the poles, directed toward the softball fields behind the shed on the opposite side of the door. Of course, the back wall of the shack facing the ball fields contained a horizontal window, one-half of which allowed light and the other half was boarded up.

While no evidence was presented which established the time of sunset on July 31, 2001, Claimant testified, and CO Kreisler allowed, that it became dark starting at about 8:30, and surely by 9:30 or 9:45 p.m., it was dark. Mr. Crane, employed at Groveland as a civilian recreation leader, in describing what the shed would be like with no electric light inside, grudgingly acknowledged that it would be dark, albeit not pitch dark (Exhibit 11 - pp. 12-13), but was unable to recall if he had actually been inside the shed at any time after the electricity had been shut off. He also suggested that even without the working overhead light, there was enough ambient light that he would have been able to read inside the shed. However, in telling cross-examination he acknowledged that since he had never been in the shed after dark with the electricity turned off, he couldn?t ?possibly know whether [he] could read in that shack when it was dark? (Trial Transcript - p. 117). His credibility was somewhat compromised by this equivocation.

This was an unwitnessed event, and the Defendant has insinuated that the accident did not occur as alleged, implying that perhaps he did not actually trip on a bat. The Report of Inmate Injury (Exhibit 13) memorializes that Claimant reported for medical treatment at 10:20 p.m. on the night of the accident and is roughly contemporaneous with and consistent with Claimant?s explanation of the incident. I am aware that the Defendant objected to the introduction of this document as self-serving and bolstering, but any implied delay was explained by the facility-wide 10:00 p.m. inmate count during which count no inmate movement, even to medical, was permitted. The record before me is devoid of any substantive support beyond the most speculative innuendo that this accident occurred in any fashion other than Claimant?s description. The Defendant, in seeking to avoid or minimize any culpability, proffers that since the light switch was inside the shed to the left, and that in order to reach the switch Claimant would have had to step in the same spot where the errant bat was located, thus speculating Claimant would have stepped on the bat irrespective of the lack of electricity. Hence, the Defendant urges that the absence of electricity for the light inside the shed was not a proximate cause of the accident. This argument is fallacious, as it presupposes that the light would not have been turned on, and that Claimant would have been reaching to turn on the light while carrying a 70 to 100-pound punching bag. This theory requires the assumption that the light would not have already been turned on as nighttime darkness arrived, before the bat was left on the floor and before Claimant retrieved the heavy bag. Indeed, one might similarly speculate and infer that whoever left the offending bat on the floor was deterred from entering the shed and placing the bat in its regular storage place because of the lack of illumination.

The Defendant also seeks to imply Claimant?s culpability due to his physical condition. It elicited, inter alia, that Claimant had a bad left arm that had nearly been severed in an earlier accident; a left hand that was almost dysfunctional with only two fingers which were fused together; left-knee ligaments held together with staples; and a titanium plate in his back from cervical fusion surgery. Even though Claimant testified that he was able to hold the heavy bag with one hand, his right, and carry it over his right shoulder to the shed, the Defendant was unable to gain an admission that he was bent over or that his vision was obstructed by the heavy bag when he walked into the shed. In any event, it appears that retrieval of the heavy bag was a part of Claimant?s responsibilities as the recreation aide, an assignment he was given irrespective of his physical condition. This provides no measure of culpable conduct on Claimant?s part.

The ultimate questions for me are whether there was culpable conduct by the Defendant in shutting off the electrical service to the only source of direct lighting in the shed while requiring Claimant to perform work inside the shed in the dark until 10:00 p.m., and whether such absence of illumination was a proximate cause of the accident. I hold that the Defendant must be held liable in damages for Claimant?s injuries, with no contributing negligence on his part. I find that the lack of illumination in the shed, in the dark up to 10:00 p.m., was a dangerous condition. Claimant did not create the condition, and, as an inmate in a correctional facility, was assigned by the Defendant to perform the duties which he performed on the night in question.

To the extent that the Defendant here cites Gordon v American Museum of Natural History (67 NY2d 836 [1986]), for the proposition that it was not on prior notice of the errant bat, it misses the point. The Defendant was on notice of the interruption of electrical service and the resultant darkness at night inside the shed. It was the interior darkness that created the dangerous condition, not the baseball bat, and here, unlike Fazzino v State of New York (UID #2001-015-528, Claim No. 95812, Jan. 4, 2001, Collins, J.),[4] there is no factual dispute that it was the Defendant which was aware of and created the dangerous (un)lighted condition. A dark or insufficiently lighted area, such as the shed in question, can be an unsafe condition that will subject the owner of the premises to liability (Klimowich v City University of New York, UID #2001-016-015, Claim No. 99495, Feb. 28, 2001, Marin, J.).

As most recently reiterated by the Third Department in Dawn VV. ex rel. Dallis VV. v State of New York (____ AD3d ____, 2008 NY Slip Op 00152 [3d Dept 2008]):

To establish proximate cause, claimant ?must show that it was reasonably foreseeable that an injury could occur but need not demonstrate that the precise or exact manner in which the [incident] occurred was foreseeable or could be anticipated? (Harris v State of New York, 117 AD2d at 303; see Di Ponzio v Riordan, 89 NY2d 578, 584 [1997]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 316-317 [1980]).


Thus, here as well, it has been shown that it was the Defendant?s negligence that was

a substantial cause of the events which produced the injury, even if Claimant did not demonstrate that the precise manner in which the accident happened was foreseeable, and even with the intervening act of a third person in leaving the errant bat on the floor, the causal connection is not automatically severed (see McGrath v State of New York, UID #2005-030-022, Claim No. 106600, Aug. 12, 2005, Scuccimarra, J., citing Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; accord Schlindler v State of New York, UID #2001-005-006, Claim No. 96692, March 30, 2001, Corbett, J.).

Accordingly, I find the Defendant negligent and answerable to Claimant in damages. All motions not heretofore ruled upon are now denied. The Clerk is directed to enter interlocutory judgment on the issue of liability. The parties will be noticed under separate cover of a calendar call to schedule a trial on damages.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


January 23, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims



1.
[1]The shack, or ?rec? shack, was also referred to as a shed, and for purposes of this decision these terms will be used interchangeably.
2.
[2]In Exhibit 2, the sidelight is partially encumbered by what appears to be two sheets of paper affixed to the window. Exhibits B and E show the window without the papers affixed, but with the residue of some sort of tape with which they were affixed. It appears that photographic Exhibits 1-6 and 8 were taken on May 13, 2003, while Exhibits A, B and D-F were taken on October 4, 2006. Neither the dimensions of the papers nor their presence on the night of the incident was clear from the testimony. Indeed, although their presence might have served to obscure light and thus would have been supportive of his claim, Claimant credibly had no recollection that they were present (Trial Transcript - pp. 51-52).
3.
[3]In a distinction without a difference, Correction Officer (CO) Kreisler testified that as the Yard Officer he was the individual who locked the shed door.
4.
[4]Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.