Pascual v. State

23 A.D.2d 518, 255 N.Y.S.2d 450, 1965 N.Y. App. Div. LEXIS 5064

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1965
• Docket: Claim No. 37864
• Status: Published

Opinion

Hamm, J.

Appeal by the State from a judgment of $1,841.32 in favor of the claimant. The claimant was injured in a corridor of Kings Park State Hospital on a visit to her son, a patient. She was walking toward a room connecting with the corridor when she fell. She testified: “ I slipped and I fell. My hand got dirty with something that appears to be Jello and my coat got dirty.” The trial court found that “ there was no evidence of actual notice to the defendant of the alleged condition in the corridor” and that “no proof was offered at trial that the alleged slippery condition had existed prior to the time of the claimant’s fall.” No facts or circumstances -were adduced to warrant an inference that the hospital’s employees created the condition complained of and, of course, no finding to that effect was made. The theory on which an award was based appears in this excerpt from the court’s decision: “ It was incumbent upon the hospital authorities to supervise the area in question with a sufficient degree of regularity during visiting hours to know of the existence of the hazard and to take measures to warn of its presence or to remove it.” We find no basis for this theory nor any ground for departing from the familiar rule that, absent notice, proof that the State created the dangerous condition is prerequisite to recovery. (See, e.g., Beutenmiller v. West End Tavern, 1 N Y 2d 652.) Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P. J., Herlihy, Reynolds and Taylor, JJ., concur.