Otis Barrow, Claimant, v. The State of New York, Defendant. (2025)

In this claim, Otis Barrow, a formerly incarcerated individual, seeks damages for physical and emotional injuries that he suffered after slipping and falling on a wet floor in the mess hall at Bare Hill Correctional Facility in January 2023. Claimant also alleges he did not thereafter receive adequate medical care for his resulting shoulder injury. In addition to his testimony, claimant called an incarcerated individual who had witnessed the accident, and the Court received several of claimant's exhibits into evidence; defendant proffered the testimony of a corrections officer and a certified copy of claimant's grievance records which was also received in evidence.¹ After considering the testimony and documentary evidence presented at trial, as well as the parties' arguments and the applicable law, the Court makes the following findings of fact and concludes that defendant is 100% liable and awards claimant the sum of $2,000.

Trial Evidence

The Court found claimant's testimony to be earnest, consistent, and credible. In the evening of January 26, 2023, claimant and other incarcerated individuals with special diets were called out to the mess hall for dinner. Individuals with special diets were generally the first to be called to the mess hall to receive their meals. Sometime between 5:15 and 5:30 p.m., claimant walked from his nearby dorm to the mess hall, which was located in a separate building and could only be accessed by walking outside. It was a wet, rainy, and snowy day. Claimant was among the first to arrive at the mess hall. When he arrived, there were some other incarcerated individuals present waiting for the regular meal service to start, as well as the mess hall employees. After he grabbed his tray and sat down to eat, he saw the first group of corrections officers walking up to the building and making their way into the mess hall. Claimant completed his meal in about ten minutes and, as he prepared to leave, claimant went to the spoon and tray return area which was located by the mess hall exit. Claimant was the first incarcerated individual to reach that area and, as he turned toward it—approximately 10-15 steps away from it—he suddenly slipped on the floor and fell back and landed on his left side, injuring his left shoulder. He was unable to get up and, although several corrections officers were in the immediate vicinity and saw him fall, they just stood there and did not help claimant. Rather, while he was lying on the floor, the officers were ridiculing and laughing at him. A sergeant also witnessed claimant's fall. When an officer known as "Ms. B" eventually approached claimant and demanded he get up, claimant informed her that he was hurt and could not get up on his own; yet the officer did not assist him. After several minutes on the floor, two incarcerated individuals working in the mess hall were finally permitted to come over and help claimant up.

After falling, claimant observed that the floor in the spoon return area was wet. No wet floor sign had been posted in the area, however. Based on his own prior experience of working in a prison mess hall at another facility in the past, claimant also testified that there was also no dry mop and bucket placed nearby as it should have been on a wet and snowy day—particularly given the slippery nature of the mess hall floor.

Feeling extremely embarrassed and humiliated, as well as stunned by what had just happened, claimant did not want to be taken to the medical unit immediately after his fall. He testified that he just wanted to get back to his dorm. Thus, despite the pain he was in, he very slowly walked back to his room. When the pain did not subside, however, claimant sought medical attention later that day and was given ibuprofen and Tylenol for the pain and swelling in his shoulder (see Exh 3). An accident / injury investigation report was created indicating that claimant had fallen (see Exh 4; Exh A, at 12). Claimant testified that an x-ray taken the next day revealed swelling of his left shoulder, but no fractures; no further testing was done at that time. Claimant thereafter continued to complain of excruciating pain in his shoulder and facility medical staff ordered him to physical therapy, which only made the pain worse. According to claimant, in May 2023 the facility finally sent claimant to an outside hospital for an MRI, which revealed a nearly completely torn rotator cuff. After his release from prison in September 2023, claimant testified that he received further medical treatment for his injury, and ultimately underwent shoulder replacement surgery. Claimant testified that, while he has good and bad days, his shoulder still hurts to this day. He also can no longer put his left arm behind his back, but it feels better than before. Claimant has been formally adjudicated disabled by the Social Security Administration due to several conditions, including his shoulder injury.

Claimant's testimony was corroborated by the equally credible testimony of Mark Schinnerer, an incarcerated individual, who witnessed claimant's fall and provided a similar description of the accident.² Schinnerer was not a friend of claimant's but knew him because they lived in the same dorm. On January 26, 2023, Schinnerer was also among the first group of individuals called to dinner to receive their special diets, and he arrived at the mess hall before claimant. On the day of the accident, after the special diet individuals had completed their meals and were clearing their tables, Schinnner was right behind claimant as they walked toward the spoon and tray return area. Schinnerer saw claimant slip and fall, landing hard on the floor and complaining that he had hurt his back and shoulder. The witness also observed claimant gripping his shoulder in pain. After claimant fell, Schinnerer testified that the officers who came over—including Ms. B—did not provide any assistance to claimant and began to berate and ridicule him. Eventually, two porters arrived to assist claimant to his feet.

Schinnerer further testified that there was snow on the floor in the area that claimant had fallen from the boots of the corrections officers "trudging it into the cafeteria."³ Schinnerer stated that when the special diet individuals had initially walked in to the mess hall it was dry, but that 5-7 minutes later when they had eaten their meals and were allowed to leave their tables, he saw snow and water on the floor in the area where incarcerated individuals return their spoons and trays. Upon being asked how certain he was that the puddles of water and snow on the floor there came from the officers' boots, Schinnerer explained that the officers had come in after the first group of prisoners had been seated and were roaming around the mess hall for 5 to 6 minutes before he and the other incarcerated individuals were called out to leave and got up to exit. He also stated that the area where claimant fell was an area where the officers would stand guard. Schinnerer did not himself see any officers walking into that area, however, because he had arrived at the mess hall for his meal before the officers arrived. Like claimant, Schinnerer also not had seen any mop bucket or wet floor warning signs in the mess hall either before or after claimant fell, even though there was snow and melting snow on the tile floor.

On cross-examination, Schinnerer provided a detailed description of the layout of the mess hall. He testified that the mess hall had two doors approximately six feet apart from each other, but that incarcerated indivdiuals cannot go in and out of the same door—one door was the entrance, and the other the exit. The ingress and egress area was in a vestibule that then opened up into the main cafeteria area. Schinnerer further explained that, as incarcerated individuals move toward the exit after completing their meals, the spoon drop off area and the tray return area are in the mess hall before you reach the vestibule where the doors are located. Incarcerated individuals leaving the mess hall drop their spoons in a bucket, then return their trays, and then proceed out through the exit door. Schinnerer emphasized that claimant fell just before reaching the spoon drop area and noted that any water being tracked in from outside by the officers would be right there. Schinnerer also testified on cross-examination that there were not many incarcerated individuals in the mess hall at the time the accident occurred because his group was the first to arrive and, further, that the tables were not filled and there was only one table in between the area where he was sitting and the area where claimant fell.

Finally, Schinnerer testified that he is aware of other individuals who have also fallen in the mess hall and described the mess hall floor as very slick. He noted that the building is over 30 years old and explained that the floor of the mess hall is a smooth polished marble surface that has gotten very slippery over time, and that the presence of any water makes the floor even more slick.

Defendant called Corrections Officer Jamie Premo. Officer Premo has been employed at Bare Hill for approximately 20 years. His regular duties in 2023 included working in the mess hall every day, and among his responsibilities was calling incarcerated individuals down to the mess hall for meals. Premo was working in the mess hall on the date and time of claimant's accident. Although Premo was present at the scene and observed claimant on the floor by the spoon return after he had fallen, Premo did not personally see claimant fall. Premo could not recall if claimant's dorm was the first that he called out or how far into the meal run it was when the incident happened, but eventually recalled that it would have been at the beginning of the run around 5:30 p.m. Premo later filled out documentation regarding the incident, which indicated that claimant declined medical attention at that time (see Exh A, at 10). Premo also testified that he did not laugh at or threaten to kick claimant, nor see any other staff do so (see also id. at 14). He further stated that two incarcerated individuals working in the mess hall eventually helped claimant get up.

Given his experience working the mess hall at Bare Hill, Premo acknowledged that there would sometimes be water on the floor either from spills or being tracked in. He explained that a dry mop and bucket were available in the mess hall, along with wet floor signs that were accessible within 10 feet of the spoon return area that could be put out if needed. The incarcerated individuals who worked in the mess hall, in addition to cleaning tables, would sometimes also stand by the spoon drop off area and be tasked with mopping up if needed. Premo also testified that there are specific stations within the mess hall where officers are posted, including a station near the spoon drop area which he described as "just about on top of it," approximately three to four feet from the spoon drop. Premo explained that there is also a railing that officers can stand behind in that area to observe the mess hall run and the spoon drop itself because there is "accountability for the spoons." Premo also stated that the guard rail continues all the way around the mess hall. In addition, Premo confirmed that the mess hall had two doors. He explained that entry to the mess hall is through the door on the left, which leads into what he called a glass foyer. Premo would sit in that foyer doing the meal call out phone calls. He further testified that the other door is used by incarcerated individuals to exit the mess hall so that there is no contact with any individuals coming in. Premo noted that, upon exit, incarcerated individuals do not have to go into the foyer to return their spoons; rather, the spoon drop off is in the mess hall itself and they would walk by it on their way out to exit through the right-hand door. Thus, he stated that exiting incarcerated individuals would not be passing over the same area through which they had entered.

On cross-examination, Premo could not recall whether the mop bucket or any wet floor signs were out on at the time of claimant's fall. But Premo testified that any time there is water on the floor, he knows it is cleaned up. Upon being asked if there are any rugs at the entrance where corrections officers would be able to wipe off their boots upon entry so as not to track snow and water into the mess hall building, Premo testified that there were no mats by the doors or in the foyer area. He stated that there is a steel "boot kick" by the entrance door where officers can rub their boots off and that there were several rubber mats for officers to stand on behind the mess hall railing. Premo gratuitously added that "you don't have to walk in front of the spoon drop off or that area to get to the mats." Premo testified that officers would just stand behind the railing and would not have needed to go into the spoon return area at all. He surmised that the only two ways that the spoon return area could get wet would be by a spoon being thrown into a dish of water or possibly from incarcerated individuals' boots when they are leaving the mess hall after eating. However, upon further cross-examination and after initially hesitating to answer, Premo ultimately acknowledged that officers would sometimes walk over by the spoon return area if they needed to.

Defendant did not dispute that claimant fell but argued in closing that the State was not on notice of any dangerous condition and that claimant had not met his burden of proof. Claimant asserted that the slippery and dangerous condition of the floor was created by corrections officers who entered the mess hall from outside and tracked in water and snow on their boots and then failed to take action to ameliorate the condition.

Analysis

Like any landowner, the State has "a duty of reasonable care under the circumstances to maintain [its] property in a safe condition" (Tagle v Jakob, 97 NY2d 165, 168 [2001], citing Basso v Miller, 40 NY2d 233, 241 [1976]; see Preston v State of New York, 59 NY2d 997, 998 [1983]). Correctional facilities are no exception; however, "while the State is under a duty to take every reasonable precaution to protect those who are in its institutions, it is not an insurer against any injuries which might occur" (Condon v State of New York, 193 AD2d 874, 874 [3d Dept 1993], citing Killeen v State of New York, 66 NY2d 850, 851 [1985]; see also Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006] ["negligence cannot be inferred solely from the happening of an incident"]). Thus, to establish liability for a breach of this duty, claimant must demonstrate (1) the existence of a dangerous condition on the premises; (2) that defendant either created or had actual or constructive notice of the condition; and (3) that the condition proximately caused claimant's injuries (see McIntyre v Bradford White Corp., 222 AD3d 1077, 1079 [3d Dept 2023]; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]; Mercer v City of New York, 88 NY2d 955 [1996], affg 223 AD2d 688 [2d Dept 1996]). As particularly important here, "usual questions of notice of [a] condition are irrelevant" if the defendant created the condition at issue (Cook v Rezende, 32 NY2d 596, 599 [1973]). A defendant's affirmative acts creating a condition "need not be intentional or deliberate," and the defendant may be liable for creating a dangerous wet floor condition if it exercised "direction and control over the activity which resulted in the accumulation of water on the floor at the accident site" (Padula v Big V Supermarkets, 173 AD2d 1094, 1096 [3d Dept 1991]).

Claimant established by a fair preponderance of the credible evidence that corrections officers tracked in snow and water from their boots onto the mess hall floor, thus creating a dangerous condition that caused claimant to fall and injure himself. As discussed below, this was demonstrated through the credible testimony of both claimant and Schinnerer. Claimant and Schninnerer each testified consistently and without embellishment, and Schninnerer was a disinterested witness. On the other hand, although Premo's testimony corroborated much of that of claimant and Schinnerer, Premo's testimony was, at times, inconsistent and less than forthcoming.

Turning to the elements of the cause of action, the Court first finds that the water and snow on the floor of the mess hall constituted a dangerous condition. To be sure, the existence of a dangerous condition cannot be established by "the mere fact that a floor or walkway becomes slippery when wet" (Todt v Schroon Riv. Campsite, 281 AD2d 782, 783 [3d Dept 2001]). But unlike the ordinary amount of water that may accumulate on an outdoor surface or the floor of a bathroom or shower, the watery condition in this case was not "necessarily incidental" to the use of the mess hall (Todt, 281 AD2d at 783; cf. Briggs v PF HV Mgt., Inc., 199 AD3d 1106, 1108 [3d Dept 2021]). Rather, the accumulation of melting snow and water on the mess hall floor presented an unexpected and uniquely hazardous condition (see Padula, 173 AD2d at 1095-1096 [finding accumulated slush and water on floor at grocery store entrance from wet carts and customers' footwear to be a dangerous condition]). Schinnerer's unrebutted testimony established that the 30-year-old polished marble floor of the mess hall was already extremely slippery and that it became even more slick with the addition of any amount of water. And, given the undisputedly snowy and rainy weather conditions on the date of the incident, as well as the fact that there were no mats in the entryway foyer for officers to dry or wipe off their boots, it can be fairly inferred that a non-negligible amount of water and snow had been brought into the mess hall—which would have made the smooth marble surface even more slippery and dangerous. Although a dry mop was kept near the spoon return area to clean up any water that got on the floor, both claimant and Schinnerer testified that it had not been used before the accident occurred. In addition, defendant failed to put out wet floor signs even though they, too, were readily accessible.

Next, the testimony of claimant and Schinnerer also established by a preponderance of the credible evidence that defendant created the condition because the water on which claimant slipped was tracked into the mess hall by corrections officers. Premo's testimony that the water could have come from some other source—water splashing out of the spoon return dish, for example—was wholly speculative, and the evidence at trial established it could not have come from incarcerated individuals' boots. Notably, claimant and Schinnerer were among the first individuals to enter the mess hall because they were on special diets and, when they did so, they came in through the entrance door, got their meals, and sat down to eat. They would not have passed through the spoon return area before sitting down because it was near the exit door, which incarcerated individuals were not allowed to use for ingress. Likewise, no other incarcerated individuals would have passed through the spoon return area before the accident because claimant and Schinnerer—who finished their meals only 5 to 10 minutes after sitting down—were also the first to go to return their spoons and trays. Officers, on the other hand, could walk wherever they pleased. Schinnerer testified that he observed snow and water in the area where claimant fell; and Schinnerer was certain it came from officers' boots because he saw officers roaming around the mess hall for 5 to 6 minutes after he and claimant arrived but before any incarcerated individuals got up to return their spoons. Claimant also observed the officers coming in after his group of special diet individuals had gotten their meals and had already been seated in the mess hall. For his part, Premo testified that there was a station where officers would be posted near the spoon return to supervise that area. And although Premo initially tried to deny that officers walked around near the spoon return, he ultimately acknowledged that they did. Premo's testimony was not credible to the extent he suggested that officers got behind the railing immediately upon entering and walked all the way around to the part of the mess hall overlooking the spoon return area without walking on the floor there or elsewhere. Put simply, on this record, the only plausible explanation for the accumulated water on the floor is that officers tracked it in with their boots.

As for proximate cause, "there is ample evidence to show that plaintiff slipped and fell," including the accident / injury investigation report made by corrections personnel, as well as other facility memoranda and documentation about the incident (Padula, 173 AD3d at 1097). Indeed, defendant does not dispute that claimant slipped and fell. Claimant "therefore presented a prima facie case showing that the slip and fall was a natural and probable consequence of the condition present on the floor" (see id., citing Gordon, 67 NY2d at 838). And there is no evidence that claimant was comparatively negligent (see Wheat v State of New York, UID No. 2024-038-120 [Ct Cl, Dec. 20, 2024] [DeBow, J.]). Thus, the Court finds defendant 100% liable to claimant.

Having established that defendant is liable for creating a dangerous condition that caused claimant to fall, the Court turns to the question of damages. "An award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]; see also McDougald v Garber, 73 NY2d 246, 257 [1989] [recognizing that "[t]ranslating" an individual's pain and suffering "into dollars and cents involves no mathematical formula"]; DeMarco v DeMarco, 154 AD3d 1226, 1228-1229 [3d Dept 2017]). The starting point in determining the appropriate damages award is examination of awards in "comparable cases" (Ciuffo v Mowery Constr., Inc., 107 AD3d 1195, 1197 [3d Dept 2013]; see Garcia v CPS 1 Realty, LP, 164 AD3d 656, 658 [2d Dept 2018]). Although compensation awarded in prior cases involving similar injuries is instrumental in "guid[ing] and enlighten[ing]" a court in its consideration of the proper damages in a particular case, such prior awards "are not binding" (Garcia, 164 AD3d at 658 [internal quotation marks omitted]). Factors to be considered in establishing an award for pain and suffering include "the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, NY, 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see Fabiano v State of New York, 170 AD3d 1301, 1303 [3d Dept 2019]).

Claimant established through his testimony that he suffered a serious shoulder injury and substantial pain and suffering over an approximately eight-month period as a result of his fall. The facility's injury investigation report itself documented that claimant experienced pain and swelling in his left shoulder immediately following the accident on January 26, 2023. And the uncontroverted evidence at trial indicated that medical staff at Bare Hill prescribed claimant pain relief and anti-inflammatory medications for his injuries, and then later referred him to physical therapy—which claimant testified only made his already excruciating pain worse. Claimant's pain and suffering continued up until his release from prison in September 2023; indeed, he was not sent to an outside hospital for evaluation until approximately four months after his fall, and did not receive any additional treatment until after his release another four months later. Despite claimant's testimony at trial about his lingering pain and reduced range of motion, however, he failed to establish that the accident caused permanent injury or permanent physical limitations, or that any specific injury incurred during the fall rendered shoulder replacement surgery medically necessary. Claimant "was competent to testify as to his past and present physical condition," but the causal link between the accident and the underlying nature of the damage to his shoulder, as well as the permanency of his injury, is beyond the understanding of lay persons and could only have been proven through expert medical testimony—which claimant did not present (Brown v County of Albany, 271 AD2d 819, 821 [3d Dept 2000], lv denied 95 NY2d 767 [2000]; Morgan v State of New York, UID No. 2018-038-103 [Ct Cl, Jan. 17, 2018] [DeBow, J.]).⁴

Finally, the Court credits claimant's testimony that corrections officers mocked and berated him instead of helping him get off the floor, leaving him feeling humiliated and embarrassed. However, no award may issue for the "emotional injuries" he suffered at the hands of these officers (Claim, ¶ 17), because claims for intentional infliction of emotional distress do not lie against the State in the Court of Claims (see Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], citing Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986]; Wheeler v State of New York, 104 AD2d 496, 498 [2d Dept 1984]).

In sum, defendant is 100% liable to claimant for its negligence and claimant is entitled to recover for past pain and suffering and the injuries he sustained as the result of his fall. After considering a range of awards in similar cases, the Court awards claimant $2,000.00, together with the appropriate statutory interest pursuant to CPLR 5001 and 5002 (see e.g. Wheat, supra; Adams v State of New York, UID No. 2019-059-021 [Ct Cl, Oct. 31, 2019] [Liccione, J.]). To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). But to the extent claimant seeks to recover other litigation fees and costs, such relief is not available in the Court of Claims (see Court of Claims Act § 27).

Let judgment be entered accordingly.

September 3, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

FOOTNOTES

1.   Claimant's exhibits 2 through 4 were admitted into evidence upon defendant's consent and stipulation. Exhibits 5 and 6, constituting claimant's medical records, were admitted over defendant's objection. Claimant stipulated to the admission of defendant's exhibit A.

2.   Schinnerer was still incarcerated at the time of trial and appeared by video from Bare Hill Correctional Facility.

3.   Unless otherwise indicated, all quotations are from the audio recording of the trial of this claim.

4.   To the extent the claim alleged that the State failed to provide claimant with adequate medical care for his shoulder, claimant did not press this claim at trial, and expert medical opinion testimony would similarly have been required to support a medical malpractice cause of action in any event (see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]). Accordingly, any such cause of action is dismissed.

Zainab A. Chaudhry, J.