Emmi v. State
| Citation | 533 N.Y.S.2d 406,143 A.D.2d 876 |
| Parties | James EMMI, Appellant, v. STATE of New York, Respondent. |
| Decision Date | 24 October 1988 |
| Court | New York Supreme Court Appellate Division |
Harvey A. Levine, P.C., New York City, for appellant.
Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Frank K. Walsh, of counsel), for respondent.
Before MOLLEN, P.J., and BROWN, RUBIN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Lengyel, J.), dated April 23, 1987, which, after a nonjury trial, is in favor of the State and against him.
ORDERED that the judgment is reversed, on the facts and as a matter of discretion, without costs or disbursements, and claimant is awarded judgment against the State on the issue of liability to the extent that the State is found 50% at fault in the happening of the accident, the remaining 50% of the fault is apportioned to the claimant, and matter is remitted to the Court of Claims for a trial on the issue of damages.
The claimant James Emmi, an inmate at the Ossining Correctional Facility, allegedly sustained injuries, including a skull fracture, as a result of his having slipped on some grease while walking along a prison corridor. Although there were no eyewitnesses to the incident, a former inmate, Edward Donald McCormack, testified at the trial that he had observed a skid mark approximately two feet long in a patch of grease on the corridor as he escorted Emmi to the prison hospital. The incident occurred, according to the claimant, in a well-frequented corridor of "7 Building" which led to various administrative offices, the prison hospital and inmate telephone room. The corridor, which was built on an incline, also led to an outdoor trash dumpster.
Emmi and McCormack testified that plastic garbage bags containing leftover food from meals served to prisoners confined in their cells were regularly dragged along the floor of the corridor to the dumpster, causing the bags to break and leaving a trail of refuse on the floor. Typical of the food debris to be found on the floor, according to their testimony, were bits of leftover vegetables, potatoes, meat and butter. Emmi and McCormack maintained that the corridor was generally dirty and only erractically cleaned depending on the diligence of supervision of the inmate porters by individual corrections officers. According to McCormack, the floor remained greasy, even when mopped, because the water would bead up and without close supervision, the porters would not properly scrub the floor. The examination before trial testimony of another former Ossining inmate, Gary E. Valejo, which was admitted into evidence, presented a similar version of conditions in the corridor. No evidence of prior accidents in the corridor was presented.
The State's sole witness, Correction Officer Winston Grell, who was responsible for supervising garbage disposal through the corridor during one eight hour shift per day, testified that the corridor was always kept clean . Grell initially maintained that the garbage transported through the corridor was composed primarily of paper, but admitted on cross-examination that the garbage also included leftover food from the three daily meals served to approximately 75 prisoners who were confined to their cells. According to Grell,...
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