New York State Court of Claims

New York State Court of Claims

BURROWS v. THE STATE OF NEW YORK, #2000-007-528, Claim No. 94116


Claimant contends that he injured his right shoulder on June 22, 1995 when a wagon in which he was riding with a group of other inmates at Washington Correctional Facility separated from a tractor and struck a small building. Claim dismissed.

Case Information

DWAYNE BURROWS The court has amended the caption, sua sponte, to reflect the State of New York as being the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has amended the caption, sua sponte, to reflect the State of New York as being the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Dreyer Boyajian, LLP (Gerald J. Jennings, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Kathleen M. Resnick, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
July 25, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant contends that he injured his right shoulder on June 22, 1995 when a wagon in which he was riding with a group of other inmates at Washington Correctional Facility (hereinafter "Washington") separated from a tractor and struck a small building. Claimant's theory of the State's liability is premised on (1) the alleged failure of employees or agents of the State to inspect the tractor and wagon, and more specifically, the tongue and hitch that joined the vehicles, before other inmates and claimant were transported on the wagon on the accident date, (2) alternatively, negligent inspection of the hitch mechanism joining the tractor and wagon if an inspection had been performed, or (3) the application of the doctrine of res ipsa loquitur to establish the State's negligence.

Essentially, it is undisputed that the subject accident happened as testified to by claimant and Ralph Underwood, a supervisor of inmates assigned to an outside work crew at Washington.

Claimant related that customarily he was assigned to a "work gang" that often chopped wood and performed other "outside work."[1]
He testified that ordinarily a work gang consisted of six or seven inmates who worked about 20 hours a week. He recalled that following breakfast and shortly before 10 a.m. on the accident date, he and other inmates of the work gang were transported on a wagon pulled by an old tractor to an unspecified area of the facility to perform work. He recalled that the wagon had benches parallel to one another along the inside of the wagon. He stated that a correction officer rather than an inmate always drove the tractor and that Correction Officer Underwood was the driver of the tractor when the accident occurred. His recollection was that the accident occurred about 5:30 p.m. as the inmates were being transported back to H block.
In describing the events leading up to the wagon's striking a small, cinder block building also described as a pheasant coop, claimant asserted that as the tractor and wagon proceeded over a small hill, he heard a pop, the tractor proceeded ahead, but the wagon veered to the left toward the building. He testified that he and an elderly inmate, who were the first two passengers seated on the left bench of the wagon, remained on the wagon until it struck the building and that other inmates jumped off the wagon before it struck the building. He testified that he fell to the floor when the wagon struck the building, got up and felt pain in his shoulder. Although he was unable to be precise as to the distance that the wagon traveled after it separated from the tractor, he recalled that the wagon traveled a "good distance."

Correction Officer Ralph Underwood, a supervisor of the outside work crew at Washington, testified, based upon his personal knowledge, that the tractor and wagon were the property of the facility, were in the sole control of the facility and were used exclusively by the facility. The witness acknowledged that he was the operator of the tractor and was transporting six inmates back to H block when the accident happened about 2:10 p.m. rather than 5:30 p.m. as estimated by claimant. His first recollection of the ultimate collision of the wagon with the building was hearing what he described as a commotion of inmates. When he looked over his left shoulder, he observed that the tractor and wagon were no longer connected by a metal tongue and hitch. He asserted that he then turned the tractor to avoid its colliding with the wagon. He observed the wagon sliding along the road, then veering off the road to its left and coming to rest against a wooden structure or building that had been used as a pheasant coop.

Correction Officer Underwood estimated that the tractor and wagon were proceeding at a speed of approximately five miles per hour when they separated and stated that he remained at the accident scene while certain inmates were taken to the facility's infirmary. He also acknowledged that the inmate work crew was required to travel in the wagon. He was permitted to testify without objection that claimant was without fault as regards the happening of the accident. He had no recollection that he had inspected the tractor and wagon on the accident date before the accident happened. In a signed memorandum prepared following the accident (Claimant's Exhibit 8), the officer, in part, wrote:
"As I passed through the gate area headed towards the Building 90 parking lot, the tongue of the trailer broke free from the hitch on the tractor. The trailer/wagon tongue slid along the road to the pheasant coop area where it turned left and came to rest against the pheasant building. * * * Upon inspection of the tongue it appeared to have broken where the trailer hitch on the wagon connected to the tongue of the wagon. The hitch part remained attached to the tractor with the draw pin."
Sergeant John Girard, who supervised correction officers and inmates at Washington, testified that the subject accident occurred about 2 p.m. on June 22, 1995. In his report of the accident, he stated that the accident occurred at approximately 2:10 p.m. Based on his interview with the inmates riding on the wagon and Correction Officer Underwood, he concluded that the "hitch broke due to fatigue or stress upon it." Photographs taken of the tongue and hitch, which apparently were attached to Sergeant Girard's report with a paper clip, allegedly could not be located and thus were not produced at the trial.

Proof introduced at the trial demonstrated beyond peradventure that facility policy mandated that inmates, such as claimant, who were assigned to work crews had no choice other than to be transported in the subject wagon whenever so directed. Since the State has waived its sovereign immunity as regards negligence in State correctional facilities, it had the duty as the owner of a tractor to which a wagon was attached by a coupling device to have had such device in a reasonably safe condition so that the tractor and wagon might be controlled and not be a source of danger to inmates and others while being used on facility premises (
see generally, Fried v Korn, 286 App Div 107, affd 1 NY2d 691; 1A NY PJI 2:86, at 397 [3d ed 2000]). Claimant did not seek to inspect the tractor and wagon hitch or coupling device prior to trial, and the record is devoid of direct proof that the defect resulting in the separation of the tractor and wagon was patent.
The primary thrust of claimant's contention that liability on the part of the defendant is implicated rests upon the application of the doctrine of res ipsa loquitur. Simply put, claimant urges that notice of the defect of the coupling mechanism may be inferred under res ipsa loquitur so that claimant was not required to offer evidence of actual or constructive notice of the defect.

For the doctrine of res ipsa loquitur to apply, the following three elements must exist: (1) the instrumentality causing the injury was within the exclusive control of the defendant; (2) the event causing the injury must be of a kind that ordinarily does not occur in the absence of someone's negligence; and (3) the event ordinarily must not have been the result of any voluntary action or contribution by the claimant. In the present case the tractor and wagon were in the exclusive possession of defendant. Inmates performed no mechanical work on the subject tongue and hitch. The evidence demonstrates to the satisfaction of the court that the uncoupling of the metal tongue and hitch would not normally occur in the absence of improper maintenance (
see, Buell v SPS Props., 166 AD2d 925, lv denied 77 NY2d 806; 1A NY PJI 2:65, at 310, 314 [3d ed 2000]). Clearly, claimant's own actions did not affect the instrumentality involved in the accident. Indeed, defendant does not claim otherwise.
The court concludes that the collision of the subject wagon with the small building or pheasant coop would not have occurred absent defendant's negligent conduct and next considers the issue of damages.

As the proof unfolded, it was demonstrated from a review of claimant's ambulatory health record and by the testimony of nurse Sandra Whelan, a Department of Correctional Services (hereinafter DOCS) employee, that immediately following the subject accident on June 22, 1995 claimant was examined at Washington's infirmary and complained that his left shoulder and side of his neck hurt "a little." He was directed to take Advil and a hot shower. The following day, June 23, he was a "no show" at sick call but thereafter appeared at the infirmary and, based upon his ambulatory health record and nurse Whelan's credible testimony, advised nurse Whelan that his
left shoulder and neck hurt. Nurse Whelan directed claimant to continue taking Advil, apply hot compresses and perform gentle range of motion exercises to his neck and shoulder while taking a shower and to return to the infirmary in three to five days "if not better."
Nurse Whelan testified that Donna Aquasanto, another DOCS nurse, had made the entry in claimant's ambulatory health record on June 22 relative to his left shoulder complaint. Interestingly, an entry in claimant's ambulatory health record on July 3, 1995 and nurse Whelan's testimony prove that claimant appeared at Washington's infirmary with a 1¼ inch abrasion of his
right shoulder. The abrasion was cleansed with water and a Band-Aid was applied. Claimant professed no recollection of injury to his right shoulder on July 3, 1995.
In a required written report to one of his superiors, dated June 22, 1995, Sergeant John Girard related that claimant had struck his left shoulder on part of the wagon when it struck the subject building, but he was unable to state whether such information was reported to him by claimant or whether the reported information came from infirmary records.

The court concludes that claimant did not injure his right shoulder on June 22, 1995. Such conclusion is strengthened by the testimony of Dr. Lawrence H. Fein, a Saratoga Springs orthopedic physician, who operated on claimant's right shoulder. Claimant, who has resided in the Bronx since his parole from prison in December 1995 and has been examined by a number of physicians in the downstate area, was referred to Dr. Fein by claimant's former attorney who, like Dr. Fein, practices in Saratoga Springs. Dr. Fein proved to be not only a very impressive medical witness but also a very credible and candid one.

Dr. Fein testified that his original consultation with claimant, at the request of claimant's former attorney, had occurred on November 9, 1998 and that he had obtained a history from claimant detailing the happening of the subject accident. He testified that claimant told him that he had injured his right shoulder and also his neck on June 22, 1995 when, while an inmate at Washington, he was thrown from a wagon on which he was riding during a work detail. Claimant advised Dr. Fein that he also had headaches and that his right shoulder problem had continued after June 22 and he had numbness and tingling in his right hand.

Upon his initial examination of claimant, Dr. Fein found a full range of motion of claimant's right shoulder. He reviewed records of various physicians and a chiropractor relative to claimant. He found claimant to be a muscular man with normal overall alignment of his shoulders and neck and full range of motion of his shoulders. He further found a "sag" sign. Dr. Fein's initial impression was that claimant had a post-traumatic glenohumeral instability. He explained that the term glenohumeral refers to the ball and socket joint of the shoulder and that instability relates to an excess degree of laxity or play in the shoulder. Dr. Fein then requested an MR arthrogram, which is an MRI scan performed with dye injected into the joint, to better evaluate claimant's pathology and to confirm the doctor's diagnosis. The test was conducted on March 3, 1999. Dr. Fein next saw claimant on September 22, 1999, at which time claimant had complaints similar to those of November 9, 1998. Concluding that claimant had symptoms consistent with instability of his right shoulder and upon reviewing the MR arthrogram that confirmed the diagnosis of laxity of the glenohumeral ligament of claimant's right shoulder, Dr. Fein decided that surgery was required.

On October 22, 1999, Dr. Fein performed surgery on claimant's right shoulder. Upon finding that the glenohumeral ligament was lax, Dr. Fein shortened the ligament. Dr. Fein next saw his patient on November 18, 1999 and found no numbness or tingling in claimant's right arm and hand and referred claimant for physical therapy.

When claimant's counsel asked Dr. Fein whether he had an opinion based upon a reasonable degree of orthopedic certainty that the injury to claimant's right shoulder that he had observed, treated and operated on was causally related to the accident of June 22, 1995, Dr. Fein expressed the opinion that the injury was causally related to the accident.

On cross-examination, Dr. Fein acknowledged that he had no history of claimant's engaging in athletic activities, including weight-lifting, and, in expressing an opinion relative to causal relationship, relied upon claimant's description of the cause of his injury. Upon questioning by the court, Dr. Fein said that he was required to rely upon his record that claimant fell out of the wagon onto his shoulder. Ultimately, after Dr. Fein was advised that claimant's testimony was not that he had fallen out of the wagon onto his right shoulder but instead remained in the wagon and had fallen onto his shoulder when the wagon struck the building, he had difficulty in explaining causal relationship. Previously, Dr. Fein had testified that for the subject injury to claimant's right shoulder to have occurred the ball of claimant's shoulder had to have been forced out by a direct blow pushing the ball from the back to the front or by an indirect mechanism whereby claimant's arm or elbow was pushed backward and the shoulder was pushed forward. He related that the injury that he found ordinarily is not caused by a direct fall, which, instead, "causes other problems." Dr. Fein did acknowledge that in view of the history of the accident and claimant's fall as described to him by the court and agreed to by both counsel, he had "trouble, you know, figuring out how this occurred."

Thus, in the final analysis relative to the issue of damages, the court concludes that claimant has failed in his burden of proving that he sustained an injury to his right shoulder in the subject accident that occurred on June 22, 1995.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

July 25, 2000
Plattsburgh, New York

Judge of the Court of Claims

All quoted references are to the court's trial notes.