In Doan Nguven v. State of NY. Claim No. 123027 (Ct. Clms. March 3, 2016), the claimant sought to recover damages for a slip and fall that occurred while he was involved in a floor stripping project at Mid-State C.F. When the claimant was told that he was going to be involved in the floor stripping project, he asked the officer if he could go back and change into boots; the officer refused the request. According to the claimant, he was operating the buffer and fell when, in response to an order from an officer, he walked across a floor on which stripping solution had been applied, the point during the process when the floor is most slippery. The claimant testified that although he was walking cautiously, he slipped in the stripping solution, fell violently forward and landed face down on the floor, unconscious. As a result of the fall, the claimant had facial injuries. The claimant further testified that had he worn boots, he would have been safer and probably would not have fallen.

The officer who was supervising the stripping project disputed the claimant’s version of the events. He testified that the claimant was mopping up excess stripper (as opposed to operating the buffer) and was wearing boots (not sneakers) and that he did not order the claimant to come to him and did not see him fall but came upon him after the fall. Several memos submitted by the officer about the accident contained statements that were inconsistent with statements in other memos and with his testimony. For example, one said that the officer had observed the fall and another said that at the time of the fall, the claimant was applying water to the floor.

Claimant’s grievance was denied based on the responses of officers saying that he was responsible for coming to work in proper footwear and that he was wearing boots that day.

At trial, the claimant argued that the defendant was negligent because the officer refused to allow him to return to his dormitory to change into his boots and for ordering the claimant to participate in the floor stripping project knowing that he was not wearing proper footwear. The State argued that the claimant was responsible for his injuries because he failed to use due care and fell even though he was wearing boots.

In deciding on liability, the court first noted that while the State is not the insurer of inmate safety, it is well settled law that when the State directs inmates to participate in a work program, it has a duty to provide safe equipment, adequate training and supervision and a safe place to work. Based on its assessment of the relative credibility of the claimant and the officer, the court concluded that the claimant’s testimony that he was wearing sneakers and the officer refused his request to change into boots was more believable than the officer’s testimony that the claimant was wearing boots. The court reached this conclusion based on its observation that the claimant presented as an earnest, willing and truthful witness.

The court found that the officer’s demeanor (the way he looked) combined with the inconsistencies within and between his testimony and the documentary evidence, undermined the truthfulness of his version of the events. The court was particularly struck by the inconsistencies with respect to whether the officer had observed the fall and the fact that the memo that he wrote on the day of the accident did not mention that the claimant was wearing boots. In sum, the court wrote, the preponderance of credible (believable) evidence established that the claimant was wearing sneakers at the time that he fell and that the officer had refused his request to return to his dorm to change his footwear. For this reason, the court found that the officer’s direction requiring the claimant to strip floors while wearing sneakers breached defendant’s Duty to provide claimant with a reasonably safe work environment.

In Cabassa v. State of New York, Claim No. 119018 (Ct. Clms, February 11, 2016), the court considered whether the State should be liable for injuries that the claimant suffered when, following the orders of an officer, he pushed a wheelbarrow filled with debris across an area that was icy and covered by snow.

The testimony at trial showed that the officer who instructed the claimant to cross the icy area knew that area became icy under the conditions existing at the time but that he failed to determine whether the conditions were icy or to request that the area be treated for ice before requiring the claimant to cross it.

In addressing the issue, the court laid out the elements of a slip and fall claim against the State.  Here as in Nguyen, the court noted that while the state is not an insurer of those who enter upon its premises, it does have a duty to maintain its facilities in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.  Foreseeability is the measure of liability.

To establish liability in a slip and fall case, the claimant must establish that:

  1. The defendant owed the claimant a duty of care;
  1. A dangerous condition existed that breached that duty;
  1. Defendant either created the dangerous condition or had actual or constructive knowledge of the condition and failed to remedy it within a reasonable period of time; and
  1. The condition was a substantial factor in the events that caused the injury suffered by the claimant.

Here, the court found that the officer had constructive notice that the area was icy – he knew that it was an area where ice formed and failed to take steps to lower the risk of falling.  For this reason, the court found that the preponderance of the evidence showed that the Defendant was negligent in failing to determine whether an area where a known recurring dangerous condition existed was safe before directing Claimant to push a wheelbarrow full of debris across the area.


Brian Dratch and Ekaterina Vrykin of The Dratch Law Firm represented Jose Cabassa and Doan Nguyen, respectively, in these Court of Claims actions.