New York State Court of Claims

New York State Court of Claims

MCMOORE v. THE STATE OF NEW YORK, #2000-028-0007, Claim No. 90481


Synopsis


Claimant failed to prove that the State was negligent simply because of the presence of mouse droppings in a prison facility's salt shaker, where there was no evidence that the State had notice of mouse infestation or failed to use due care in the handling of food.


Case Information

UID:
2000-028-0007
Claimant(s):
JAMES MCMOORE
Claimant short name:
MCMOORE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
90481
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JAMES MCMOORE, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 2, 2000
City:
Coxsackie
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
This claim arose on August 2, 1994 at Coxsackie Correctional Facility. At trial, claimant testified that at the noon meal, he and other inmates seasoned their food with table salt. At the conclusion of the meal, after they had eaten, they discovered foreign objects in the salt shaker. Objects which they recognized as mouse droppings or feces. Claimant testified that later during the day, he began to experience nausea and stomach cramps and was placed on one day of medical cell confinement.

The Court notes that because food served at correctional facilities is not purchased by inmates, the implied warranty that it is fit for human consumption and contains no foreign or injurious substances (
86 NY Jur 2d, Products Liability, § 127) does not apply. To bring an action for food poisoning or other injury from adulterated food that is based on allegations of negligence, lack of due care must be proven by direct or circumstantial evidence, and proof that the food preparer exercised due care is a defense (Annotation: Liability for Injury or Death Allegedly Caused by Spoilage, Contamination, or Other Deleterious Condition of Food or Food Product, 2 ALR5th 1, 39, § 2 [b]; 36A CJS Food § 57). The instant action is founded in negligence, and thus, in order to prove the defendant liable, claimant must establish that the State failed to use due care in handling food served to prisoners and did not exercise "due regard" for the health and safety of persons in its custody (Correction Law § 70 [2]).
Two of the other inmates who were at claimant's table on the day in question also brought suits against the State, alleging negligent handling of food in the facility kitchen. Those claims were tried in 1996 by the Hon. James P. King, who dismissed them both on the ground that those claimants failed to prove that the State was on notice of any mouse infestation, that the method of food storage was faulty, or that the State failed to exercise due care in any other respect (Decision,
Gray v State of New York and Eldridge v State of New York, Claims No. 90995 and 91203, filed March 13, 1996, King, J., opn at 4-5). Claimant in the instant action has likewise provided no persuasive evidence from which the Court can conclude that there was any failure of due care on the part of the State. Consequently, the claim must be dismissed.
Let judgment be entered accordingly.


October 2, 2000
Coxsackie, New York

HON. RICHARD E. SISE
Judge of the Court of Claims