Prisoner’s negligence claim is reinstated

Where a state prisoner alleged in a pro se complaint that he tripped and was injured while falling down stairs that the Department of Corrections negligently maintained, the trial court erred by dismissing the complaint with prejudice.

Overview

AlBritton, an inmate in a state penitentiary, alleged that he tripped and fell while using a staircase that “was ‘damaged and missing edge pieces of concrete from a few of the steps[.]” He averred that he had exhausted his administrative remedies.

The commonwealth filed a plea in bar and a motion for summary judgment. The plea in bar asserted sovereign immunity because AlBritton had not exhausted his remedies. “The motion for summary judgment asserted that no genuine issue of material fact existed on the question of primary negligence or contributory negligence – in other words, no reasonable factfinder could conclude that the DOC had been negligent or that AlBritton had not been contributorily negligent.”

The circuit court granted both the plea in bar and summary judgment.

Administrative remedies

“[T]he circuit court held that AlBritton had failed to exhaust his administrative remedies, and thus, Code § 8.01-195.3(7) did not provide him with a statutory exception to sovereign immunity.”

At issue is whether, after AlBritton’s Level I grievance was denied, he timely submitted his Level II grievance. The grievance procedure provides a five-day deadline in which to appeal a Level I decision to a regional administrator.

AlBritton received the Level I decision on Dec. 22, 2017. “AlBritton’s Level II grievance appeal … declares that it was ‘mailed to the Regional Admin … on this 25th day of December 2017 by placing it in the [prison] mailing system.’”

The commonwealth argued, and the circuit court agreed, that “grievance appeals are ‘submitted for purposes of exhaustion when they are received by VDOC, not when they are sent,’ … and the Regional Administrator never received a Level II appeal before the expiration of the five-day deadline.”

But this interpretation of the relevant grievance provisions “exposes the inmate to a risk over which he has no control. Under this interpretation, an inmate could deposit his grievance in the prison mailing system on day one and still be forever barred from pursuing the claim further in either administrative or judicial forums if the grievance was, for whatever reason, received on day six.

“Given that the prison operates the prison mailing system by employees of the prison and for the benefit of the prisoners, it is difficult to see how or why an inmate should bear the risk of a delayed delivery of his mail – something completely outside of his control. …

“Correcting the circuit court’s mistaken view that the five-day appeal deadline should be measured by the date of receipt, rather than the date of mailing, still leaves an unresolved factual determination – the date on which AlBritton placed the Level II grievance in the mail. On remand, the circuit court should determine whether AlBritton did in fact mail the Level II grievance within the five-day deadline.”

Negligence

“AlBritton’s complaint asserted that while housed in a cell on the ground floor of the prison, he walked up a staircase to shower on the upper floor. When walking down the flight of stairs after showering, he allegedly fell because several steps on the concrete stairway were missing edge pieces and rubber stripping.”

Before AlBritton filed his complaint, prison officials “knew that AlBritton had claimed ‘that he fell down a flight of stairs … due to a missing piece of concrete on the steps, severely injuring himself.’ … They also acknowledged that ‘steps in that area have missing edge pieces on the runners.’ … They did not believe, however, that the missing edge pieces had caused AlBritton to fall because there were no ‘protrusions that would have caused a trip, slip or fall,’ and thus, the ‘missing edge pieces on the runners’ had not ‘cause[d] the staircase to be defective. …

“‘This is the very reason offenders must follow orders,’ the investigating prison official reasoned, ‘and take their showers on the tier that they live.’ …Relevant to that last point, the official observed that AlBritton was ‘carrying [his] shower bag loosely next to [his] legs while walking down the stairs.’ …

“We find unpersuasive the Commonwealth’s arguments in support of its summary judgment motion. The presence or absence of protrusions may be relevant to the issue of primary negligence, but it is hardly dispositive. Similarly unconvincing is the assertion that the ‘missing edge pieces on the runners’ could not ‘cause the staircase to be defective,’ … because inmates should not take showers on the upper level when they live on the lower level. Whether the stairs were unreasonably dangerous does not turn on who is doing the walking.

“It may be true and even relevant that the prison rules prohibited AlBritton from using those stairs, but that fact would not make them safe. At any rate, AlBritton’s affidavit opposing summary judgment contested the Commonwealth’s assertion that the rules had prohibited him from using the staircase.”

As to notice, an inmate-affiant asserted “that ‘other offenders’ had warned prison officials” about the staircase’s condition.

The commonwealth likens the staircase’s condition to cases that refused to impose liability when sidewalks are only slightly uneven. “Most people assume outdoor sidewalks are not going to be perfectly level. But most people walking down a staircase from a shower area would not assume that a cascading series of edge treads securing their descent most of the way down would suddenly disappear on the last several steps. The slightly defective sidewalk cases, therefore, do not support the entry of summary judgment in this case.”

Contributory negligence

“The circuit court also entered summary judgment on the alternative ground that ‘the evidence demonstrates [AlBritton] was contributorily negligent.’” The commonwealth argues that Albritton’s assignment of error on this issue should not be considered because he did not properly raise it on appeal.

“The Commonwealth observes that AlBritton’s opening brief does not identify any specific hearsay statements that were inadmissible. While that observation is true, the question is whether AlBritton limited his challenge exclusively to an error arising out of the circuit court’s consideration of inadmissible hearsay and, therefore, whether we should refuse to review AlBritton’s arguments that fall outside of that narrow issue. …

“AlBritton’s assignment of error, however, challenges the entry of an erroneous summary judgment ‘based solely upon the inadmissible [h]earsay [e]vidence submitted by the defense.’ … AlBritton argues that the phrase ‘based upon’ is best read as being descriptive in nature. The fairest interpretation of his assignment of error, he contends, is simply that the circuit court erred in entering summary judgment based solely upon the Commonwealth’s evidence without considering his evidence. Thus, the words ‘inadmissible [h]earsay,’ regardless of whether they are correct, are mere surplusage.

“Given the grammatical syntax of the assignment of error, we believe AlBritton has the better argument.”

Reversed and remanded.

AlBritton v. Commonwealth, Record No. 191030, Feb. 4, 2021. (Kelsey) From the Circuit Court of Sussex County (Sharrett) Daniel C. Yates (Michael W. Robinson; Venable, on briefs), for appellant. Zachary R. Glubiak, John Marshall Fellow (Mark R. Herring, Attorney General; Toby J. Heytens, Solicitor General; Victoria N. Pearson, Deputy Attorney General; Martine E. Cicconi, Deputy Solicitor General; Michelle S. Kallen, Deputy Solicitor General; Stacie A. Sessoms, Assistant Attorney General; Jessica Merry Samuels, Assistant Solicitor General, on brief), for appellee. VLW 021-6-002, 18 pp.