New York State Court of Claims

New York State Court of Claims

JOHNSON v.THE STATE OF NEW YORK, #2000-019-009, Claim Nos. 95572,96053


Claims for negligent, medical malpractice, and deliberate indifference relative to maintenance of weight machine and care provided for resulting injuries were dismissed due to failure to establish prima facie case.

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):

Claimant's attorney:
Defendant's attorney:
BY: Michael Friedman, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 7, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate appearing
pro se, brings two claims against the defendant State of New York (hereinafter "State") arising from injuries sustained on January 27, 1997, while adjusting a weight machine at Shawangunk Correctional Facility (hereinafter "Facility"). Claim No. 95572 alleges negligent maintenance and a lack of supervision and/or training of disabled inmates with respect to the weight machine. Claim No. 96053 alleges deliberate indifference and negligence against the State due to its delay in rendering medical treatment to Claimant for his resulting injuries. These claims were consolidated for trial and heard on May 10, 2000 at Sullivan Correctional Facility. Both trials were bifurcated and this Decision addresses the issue of liability only.
I. Claim No. 95572[1]
Claimant, who uses a wheelchair to ambulate, testified he visited the Facility's weight room on January 27, 1997. Claimant noticed the handle/bar on one of the weight machines was stuck in a forward position away from the machine. Claimant removed the safety pin from the weight adjustment shaft causing the handle/bar to violently snap back toward the machine hitting him in the head. Claimant testified he was knocked unconscious for a short period of time.

On cross-examination, Claimant admitted that at the time of this incident he had been at the Facility for approximately one year. Furthermore, Claimant acknowledged that during the course of that year he had used this weight machine, or one just like it, at least 75 to 80 times prior to this incident.

Claimant called as a witness Carl Mabry, the Facility's Records and Program Leader 1. The witness stated he was familiar with this weight machine and indicated there was no prior history of any problem with this machine's handle/bar or shaft. Mr. Mabry refuted Claimant's contention that this weight machine had been modified in any way based upon his review of the machine's original diagrams.

Claimant also called as a witness Bryon Fox, the Facility's Fire and Safety Officer. Mr. Fox personally inspected the machine after the accident and found it to be in proper working order with nothing appearing broken or missing. (Cl. Ex. 6). Mr. Fox concluded that this injury resulted from Claimant's improper use of the machine. (Cl. Ex. 6). Mr. Fox indicated that this determination was based on Claimant's own description, given during a post-accident interview, of how this accident occurred.

Claimant asserts the weight machine was improperly maintained and/or modified; that the Facility staff failed to train wheelchair inmates such as himself in the proper use of this equipment in accordance with State Department of Correctional Services ("DOCS") directives; and that rules and regulations for using the machine along with instruction should have been posted in the weight room.

There can be no debate with the principal that the State has a duty to maintain its premises in a reasonably safe condition. (
Basso v Miller, 40 NY2d 233). However, the State is not and cannot be an insurer of its facilities and negligence cannot be inferred solely from the occurrence of an incident. (Mochen v State of New York, 57 AD2d 719, 720). In order for this Court to find the State liable, Claimant must establish 1) the existence of a dangerous condition; 2) of which the State had actual or constructive notice; and 3) which the State failed to remedy within a reasonable period of time; and 4) which caused the injury sustained. (Gordon v American Museum of Natural History, 67 NY2d 836).

Claimant offered no proof whatsoever establishing this weight machine was either improperly maintained or modified. Moreover, even if Claimant had established that the machine had been modified or maintained in a dangerous condition, he failed to submit any evidence the State had notice (actual or constructive) of the same.

Next, Claimant alleged he never received training on the proper use of this weight equipment prior to his accident, despite the existence of DOCS Directive # 3.601(5) which states that wheelchair bound inmates should receive such training. (Cl. Ex. 3). However, it is well-settled that while such directives "[m]ay establish a standard of care and violation of the standard may lead to liability if a common law or statutory duty is breached...", the mere violation of a DOCS' directive or regulation does not impliedly create a cause of action for money damages. (
A. Rabb Alamin/R. Price v State of New York, Ct Cl., April 26, 1999, McNamara, J., Claim No. 98122, p 2; see also, Campolito v State of New York, Ct Cl., April 27, 2000, Collins, J., Claim No. 94670). Moreover, Claimant had another remedy in place to protect his inmate rights, namely the inmate grievance process by which to request such training.[2] (Lawrence v State of New York, 180 Misc 2d 337, 340-341). Based on the proof submitted at trial, Claimant has failed to establish that the State otherwise owed him a duty to enforce this directive.

In any event, assuming,
arguendo, that Claimant established a breach of a duty to train he did not establish that the failure to receive any training was a proximate cause of his injury. In that same respect, Claimant failed to establish that the posting of any regulations or instructions would have altered in any way his own conduct of removing the safety pin from the weight adjustment shaft. With respect to both contentions, Claimant had a full understanding of the workings of these machines from the 75 to 80 times he used them and failed to establish how the training or posting of any regulations or instructions would have altered his conduct to any degree. The Court finds the proximate cause of this accident was Claimant's own course of conduct in removing the safety pin from the equipment while the handle/bar was in a forward position. In sum, based upon the credible testimony established at trial, Claimant has not met his burden of proof as to any of the allegations contained in Claim No. 95572.

II. Claim No. 96053
Claim No. 96053 has its genesis in the same underlying facts recited above. After sustaining a head laceration on the weight machine, Claimant was in need of medical assistance. Claimant charges the State with what the Claim describes as deliberate indifference and negligence for; 1) a 2 ½ hour delay at the Facility infirmary; and 2) further delay while en route to the hospital.

A. Facility Infirmary
Claimant's uncontroverted testimony was that after the incident he was taken to the Facility infirmary where he waited for approximately 2 ½ hours for a determination whether to bring a doctor in or to send him out to St. Luke's for treatment of his injuries. The only proof as to what transpired during this time was Claimant's own rather nebulous testimony as follows:[3]

Claimant: After that I was taken to the hospital and I waited in the hospital for about two and ½ hours and they ordered the transport officers to take me to the outside hospital to receive stitches. I asked RN Wolf, I asked him whether he was going to approve, you know give me an x-ray or what have you, and he said he would most likely...

State: Objection

Court: Okay, Mr. Johnson you cannot testify to something someone else told you. That's hearsay. He's objecting on an evidentiary basis that that's hearsay. You can tell me that you had a conversation with someone and then what happened as a result of that but you can't tell me what other people said to you.

Claimant: Okay. I had a conversation with the nurse pertaining to my head injury and I requested a x-ray and the x-ray was denied at that time.

Court: So you said that you went to the hospital [Facility infirmary] and you were there for about two hours?

Claimant: 2 ½ hours. They were deciding whether to send me out or have a doctor come in. Afterwards they sent for three officers for an emergency run to St. Luke's Hospital.

Inasmuch as Claimant's allegations go toward the treatment he received, if any, while in the Facility infirmary it appears that this portion of the claim should be categorized as medical malpractice rather than negligence.[4]
As such, in order to establish a prima facie case of medical malpractice a claimant must establish a deviation from the applicable standard of care and that any such deviation was a proximate cause of his injuries. (Tonetti v Peekskill Community Hosp., 148 AD2d 525). With respect to the standard of care, Claimant did not produce the Facility nurse or any Facility medical records from which this Court could conclude what medical treatment, if any, was rendered while he was in the infirmary.[5] Additionally, Claimant testified to at least one discussion with a Facility nurse which contradicts Claimant's assertions he was ignored by the Facility staff. Moreover, Claimant did not offer the testimony of any expert witness that there was a departure from the acceptable standard of care.[6] (Macey v Hassam, 97 AD2d 919). Assuming, arguendo, this Court were to accept Claimant's implied allegation that he received absolutely no medical attention during his 2 ½ hours at the Facility infirmary and that such omission constituted a deviation from the standard of care, Claimant still failed to show that the delay proximately caused harm or aggravated his injuries. (Naughton v Arden Hill Hosp., 215 AD2d 810, 812; Brown v State of New York, 192 AD2d 936, 937-938, lv denied 82 NY2d 654). Consequently, Claimant has failed to establish a prima facie case of medical malpractice.

2. Delay while en route to hospital
Claimant established that while en route to the hospital the correction officers transporting him made two personal stops, namely at a local bank to cash checks and at McDonald's for a takeout lunch.[7]
Claimant contends this conduct was in violation of DOCS Directive #4901 relative to medical transports which states, in pertinent part, that "the officer in charge shall proceed with all possible haste" and that "it is not advisable that any stops be made during the trip." (DOCS Directive #4901 IV [F][16] & I). The issue of transport is one of negligence rather than medical malpractice since the judgment of medical professionals is not at issue. The Court finds the correction officers did make the alleged stops, but Claimant failed to show that any delay proximately caused his injuries or aggravated the same. As such, the Court cannot find from this record that the actions of the correction officers amounted to negligence. Additionally, Claimant's contention that he was injured by exposure to second hand smoke during the short time he was in the custody of these correction officers is simply without merit.

Finally, to the extent this Claim pleaded a cause of action for deliberate indifference, Claimant has failed to prove a prima facie case. "An inadvertent failure to provide medical care or the commission of negligence in diagnosis and treatment by a prison physician or medical personnel will not entitle [claimant] to relief [citation omitted]" and does not constitute a claim for deliberate indifference. (
Matter of Ronson v Commissioner of Correction, State of N. Y., 112 AD2d 488, 489).

In view of the foregoing, Claim Nos. 95572 & 96053 are hereby DISMISSED.


July 7, 2000
Binghamton, New York

Judge of the Court of Claims

Claim No. 95572 also contained another cause of action alleging injuries from a fall in the Facility shower area but that cause of action was previously dismissed. (Johnson v State of New York, Ct Cl., filed June 30, 1997, Patti, J., Claim No. 95572, Motion No. M-55137).
In fact, Claimant did file an inmate grievance after this accident and training was provided. (Cl. Exs. 4 & 5).
Unless otherwise indicated, all quotations are from the Court's trial notes.
It is well-settled that medical malpractice is involved, rather than simple negligence, when a claim involves "[a] negligent act or omission...that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment...." (Bleiler v Bodnar, 65 NY2d 65, 72). Stated another way, an action may be based upon simple negligence in cases where the alleged negligent act may be readily determined by the trier of fact upon common knowledge (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256), whereas if it is the treatment received by the patient that is in issue a claimant must establish that the medical professional involved either did not possess or did not use reasonable care in applying the knowledge and skill ordinarily possessed in the field to establish medical malpractice. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
Claimant's pre-trial motion seeking the issuance of numerous subpoenas for trial did not contain a request for any Facility medical personnel or medical records. (Johnson v State of New York, Ct Cl., Lebous, J., May 3, 2000, Claim Nos. 95572 & 96053, Motion No. M-61615).
Parenthetically, it is noted that this Court's denial of Claimant's pre-trial motion requesting subpoenas for "Medical Physician Dichario" and Ray Glen, both alleged to be doctors at St. Luke's Hospital did not prevent Claimant from meeting his burden. (Johnson v State of New York, Ct Cl., Lebous, J., May 3, 2000, Claim Nos. 95572 & 96053, Motion No. M-61615). Claimant sought Ray Glen to testify on "admittance and treatment" at St. Luke's Hospital and Mr. Dichario with respect to his observations that the correction officers had food in the emergency room. Claimant did not proffer that either witness was going to testify that any delay aggravated his injuries nor could this Court have compelled either individual to volunteer such expert opinion testimony in any event. Furthermore, Claimant related both of these witnesses to the delay while en route to the hospital rather than to the alleged delay relating to his care at the Facility infirmary.
Although not offered at trial, discovery in this case includes an internal DOCS report in which it was determined that these stops did, in fact, occur and added about ten minutes onto the trip to the hospital.