New York State Court of Claims

New York State Court of Claims

KELLNER v. STATE OF NEW YORK, #2000-018-046, Claim No. 97561


Synopsis


Claim dismissed after trial. Claimant presented no evidence of who assaulted him and failed to prove he did not receive prompt or proper medical care.

Case Information

UID:
2000-018-046
Claimant(s):
VAUGHAN KELLNER
Claimant short name:
KELLNER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97561
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
VAUGHAN KELLNERPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: PATRICIA BORDONARO, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

It appears from the claim, which was prepared pro se, claimant is seeking damages under two theories. The first theory is that the State was negligent in failing to protect claimant from being injured by a fellow participant in the Alternative to Violence Program (AVP). During a session one member of the group, while engaging in a game called Tornado, pushed claimant into the wall causing an injury. Secondly, claimant asserts that he was not given prompt or proper medical care for his injuries.

Claimant testified that on December 5, 1997, while an inmate at Riverview Correctional Facility, he attended an alternative to violence course pursuant to a recommendation by his counselor. It was the first day of a three-day program, and at the beginning of the program the teacher, one Mary Vevins, directed those participating in the program to participate in a game called "Tornado." Based upon the claimant's description, the game appears to be an adult version of musical chairs. While all the inmates were attempting to secure a chair in which to sit, an unknown person pushed claimant into the wall causing him to fall, and land on his hand which resulted in an injury thereto. Claimant submitted medical records from Hepburn Medical Center in Ogdensburg indicating he suffered a fracture of his third finger on his right hand.

Claimant has failed to prove a prima facie case under either theory. In order for the State to be negligent in failing to protect claimant from the assault by a fellow inmate, the State had to be on notice that the individual who pushed claimant into the wall was particularly prone to perpetrating such an assault, or that claimant was at a known risk of being assaulted. (See, Littlejohn v State of New York, 218 AD2d 833; Colon v State of New York, 209 AD2d 842; Sebastiano v State of New York, 112 AD2d 562)

Oddly, as participants of a program entitled Alternatives to Violence, there was obviously some indication that all of the individuals in the program had the potential for violence; however, given the prison setting such a potential is ever present, and not sufficient alone to premise liability. Claimant presented no evidence of who assaulted him or that there was any indication that anyone in the program was particularly prone to perpetrating an assault; nor was there any evidence that claimant was at a known risk of being assaulted. The State must provide inmates with reasonable protection from foreseeable risks of attack by other inmates. (Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329) The State, however, is not an insurer of the safety of inmates and the fact that an assault occurs, even despite the irony of the occurrence during a session of the Alternatives to Violence Program, no inference of negligence can be made. (Padgett v State of New York, 163 AD2d 914, lv denied, 76 NY2d 711; Roudette v State of New York, 224 AD2d 808)

Claimant has also failed to prove that he was not given prompt or proper medical care. To establish such a claim, claimant needed to prove that there was a departure from accepted standards of medical care and such departure was the proximate cause of his injuries. (Brown v State of New York, 192 AD2d 936, lv. denied 82 NY2d 654) Expert testimony is required in order to prove such a deviation from accepted standards of care. (Spensieri v Lasky, 94 NY2d 231, 238-239; Macey v Hassam, 97 AD2d 919, 920) No expert testimony was presented, and as a result, the claimant has failed to prove the State's liability.

Accordingly, the claim is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.


October 5, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims