New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2000-016-106, Claim No. 101270


Pro se claimant's claim based on exposure to second-hand smoke at correctional facility and fall while trying to open window because of smoke was dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Alcides Ramos
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mary Kavaney, AAG
Third-party defendant's attorney:

Signature date:
December 18, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

Alcides Ramos alleges that exposure to second-hand smoke at various correctional facilities caused him to suffer from stomach problems. The claim was tried on August 2, 2000 at Mid-Orange Correctional Facility. Ramos testified on his own behalf; defendant called no witnesses.
Claimant testified that while at Great Meadow Correctional Facility in 1988, he was required to go on a bland diet and take medication for stomach problems caused by second-hand cigarette smoke. He recalled that at some point, he was moved to Fishkill Correctional Facility, and his stomach continued to bother him. According to Ramos he requested to have his own non-smoking room, but was told that he would have to wait his turn – first inmates are housed in an open room, then in a four-man room, then a two-man room and finally, "if you're lucky," a private room.

Claimant stated that while at Fishkill, he was taken to an outside hospital, St. Luke's, for treatment of his stomach problems. There, he was prescribed medication which he was ultimately taken off. He recalled that some time in 1996, apparently at Fishkill, he was unable to get up, and was taken to the infirmary and then outside to St. Agnes Hospital, where he was put back on the medication. Ramos testified that thereafter, he filed a grievance because the smoke was "destroying" him. He described the grievance as having been denied because inmates "have a right to smoke in their ‘cubes.'"

Ramos then described a series of attempts to obtain a single non-smoking room at various facilities. From Fishkill, he was moved to Otisville Correctional Facility, where instead of an open room, inmates were housed in connected cubes of six inmates. He described this arrangement as not "really that bad." He recited that in April of 1998, he was transferred to Mid-Orange Correctional Facility, to a housing unit where there were no partitions between the beds. He explained that the inmate in the bed next to him – 20 to 25" away – smoked, so he asked to be moved, but the request was denied. After three months, he again asked to be moved and this time was sent to a four-man room. Unfortunately, two of his roommates smoked, so he asked to be moved again. His request was granted and he was moved to another four-man room, two beds of which were initially empty. Thereafter, two inmates moved in, one of whom smoked. Claimant asked the smoking roommate to use a fan to blow the smoke outside, but the roommate refused.

Ramos recalled that several days later, his cell was searched and it was found that "they" had put a razor under his mattress. Claimant stated that he did not know whether it was the roommate with whom he had argued about smoking who had planted the razor. Claimant recalled that after this incident, he was sent to the "box" for 18 days and was then placed back in the general population, apparently with smokers again. He said that after writing the Deputy Superintendent, he was placed back in a cube, which he described as a "little better," although there was apparently an inmate who smoked in the cube. Claimant said he asked this inmate to use his fan to blow the smoke away from him, but the inmate only complied for several days. Ramos testified that at that point, he became sick for five days, but did not elaborate. He recounted that he was thereafter moved several more times and he stated that as of the time of trial, he was housed in a 22-man unit, between inmates who were cigar smokers.

Ramos allowed as to how he was injured in November of 1997 while attempting to open a window in his housing quarters to rid the area of smoke. He said the window was without a device to open it like other such windows. While using a chair to open it, he lost his balance, hitting his head on the wall. He testified that his head, neck and back still hurt from the incident, for which he apparently received medical treatment at Shawangunk Correctional Facility.
* * *
Ramos called no physician -- or presented any medical records -- to show that second-hand smoke caused his stomach problems. His claim in this regard must thus fail. See, e.g.,
Nitecki v National Fuel Gas Distribution Corporation, 193 AD2d 1098, 598 NYS2d 411 (4th Dept 1993). As to inmate exposure to second-hand smoke, in Warren v Keane, 196 F3d 330, 333 (1999), the Second Circuit, citing Helling v McKinney, 509 US 25, 113 S Ct 2475 (1993), stated as follows:
The Supreme Court [in Helling] identified both objective and subjective elements. Objectively, a plaintiff "must show that he himself is being exposed to unreasonably high levels of ETS [environmental tobacco smoke or second-hand smoke]"... The objective factor not only embraces the scientific and statistical inquiry into the harm caused by ETS, but also "whether society considers the be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk..." Subjectively, the plaintiff must prove deliberate indifference, considering the officials' "current attitudes and conduct" and any policies that have been enacted.

Moreover, as to the State Clean Indoor Air Act (Article 13-E of the Public Health Law), referred to by Ramos, this Act contains a provision that protects an employer from legal liability for noncompliance with the Act -- Public Health Law §1399-w.

Finally, as to Ramos' claim concerning his fall while opening the window, he has failed to prove by a preponderance of the evidence that defendant's negligence was the proximate cause of his injuries. For instance, he provided no details as to the allegedly missing "device" which would open the window or why he chose to open this window if others had such a device. Moreover, the only evidence presented was that Ramos opened the window on his own initiative; he was not directed to open it. Nor did he provide any details which would suggest that defendant caused him to lose his balance.

Accordingly, in view of the foregoing, the claim of Alcides Ramos is

December 18, 2000
New York, New York

Judge of the Court of Claims