| Jackson v State of New York |
| 2008 NY Slip Op 04427 [51 AD3d 1251] |
| May 15, 2008 |
| Appellate Division, Third Department |
| Derrick Jackson, Appellant, v State of New York, Respondent.(Claim No. 107075.) |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the Court of Claims (Schaewe, J.), enteredFebruary 23, 2007, upon a decision of the court in favor of defendant.
Claimant, a prison inmate, slipped and fell when exiting a shower at the WoodbourneCorrectional Facility in Sullivan County and thereafter commenced this action seeking damagesfor his injuries. Following a nonjury trial on the issue of liability, the Court of Claims found thatclaimant had failed to demonstrate that the condition of the shower on the night of his fall wasunusually dangerous or defective. The court dismissed the action, prompting this appeal.
In reviewing a decision following a nonjury trial, as here, this Court may independentlyreview the evidence and grant judgment as warranted by the record, giving due deference to theCourt of Claims' credibility determinations (see e.g. Atkinson v State of New York, 49 AD3d 988, 989 [2008];Seaman v State of New York, 45AD3d 1126, 1126-1127 [2007]; Martin v State of New York, 39 AD3d 905, 907 [2007], lvdenied 9 NY3d 804 [2007]). Upon our review of the record, we agree with the Court ofClaims' finding that claimant failed to establish that the condition of the shower in which he fellconstituted an unreasonably dangerous condition or, in any event, that defendant had actual orconstructive knowledge of any dangerous condition (see Seaman v State of New York,45 AD3d at 1127). Thus, we affirm.[*2]
At trial, claimant offered testimony from two factualwitnesses, himself and another inmate who witnessed his fall. According to claimant, he hadbeen housed in the subject unit for two weeks prior to this incident. During this period, heshowered daily and typically observed water on the floor of the shower area. He never reportedthis condition to anyone. According to claimant, no shower mats were provided or available (hewas, however, wearing rubber shower slippers on the night of his fall). However, according tothe other inmate witness, while mats were not routinely used in the shower area itself, they werenevertheless available under a sink. According to both witnesses, a squeegee was readilyavailable in the shower area for the express purpose of pushing excess water into the showerdrains.
Claimant further testified that he observed water in the shower area before entering it on thenight in question. The level of water at this time was no different than it had been on prioroccasions, that is, deep enough to come in contact with his feet over his rubber shower slippers.With regard to the squeegee that was readily available, claimant conceded that, although he hadused it on prior occasions to clear the floor of water, he failed to do so on this occasion. Claimantalso conceded that the shower drains were working properly. No expert proof was presented.
As recently noted by this Court, "a wet floor—especially in a bathroom where one canexpect some water to make its way out of the shower to the floor—is not enough, standingalone, to establish negligence" (45 AD3d at 1127). Here, while the shower area was wet andwithout a mat, claimant, who was wearing protective shoes, was aware of the water and had theoption of removing it with the squeegee, failed to demonstrate that the amount of water on theshower floor at the time of his fall was unusual such that it created an unreasonably dangerouscondition above and beyond that typically encountered in such area (see e.g. Todt v SchroonRiv. Campsite, 281 AD2d 782, 783 [2001]; Conroy v Saratoga Springs Auth., 259App Div 365, 367 [1940], affd 284 NY 723 [1940]; Sciarello v Coast Holding Co.,Inc., 242 App Div 802 [1934], affd 267 NY 585 [1935]). In any event, claimant alsofailed to demonstrate that defendant had actual or constructive notice of the alleged condition ofthis particular shower (see Seaman v State of New York, supra). To this end, we areunpersuaded that a general memorandum issued to facility staff 16 months before claimant's fallwithout reference to any particular cellblock or bathroom provided actual or constructive noticeof the condition of the shower area where he fell (see Piacquadio v Recine Realty Corp.,84 NY2d 967, 969 [1994]).
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed,without costs.