New York State Court of Claims

New York State Court of Claims

JOHN v. THE STATE OF NEW YORK, #2001-017-616, Claim No. 96028


A prison inmate's allegation that he was denied proper medical treatment for a broken arm was supported by the evidence and results in an award of $1,000.00. Claimant failed to prove either that his injury was caused by the State's negligence or that he had been assaulted by correction officers

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:
Benjamin Vinar, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Michael Zeytoonian, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2001
New City

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose at approximately 6:45 a.m. on November 7, 1996, when claimant Michael John, then an inmate at Fishkill Correctional Facility, was injured when he slipped and fell while working in the serving line of the facility's small mess hall. Claimant contends that the State is liable for the broken arm and other injuries that he suffered as a result of the fall because it was negligent in failing to repair a leaking radiator, the ostensible cause of his fall, and in failing to provide prompt medical treatment for his injuries. In addition, claimant alleges that he was assaulted by correction officers in connection with a grievance that he filed following the November 7
th incident.
At trial of this action, claimant testified that he fell as he was carrying a tray of coffee cups when he stepped in a pool of water. He had been working at the serving area for approximately 15 minutes before walking over to the coffee station unit to get the cups. The pool of water into which he stepped came, he alleged, from a leaking radiator located in a pantry behind the coffee service area. Claimant stated that after he fell, an assistant cook named Joel Mojica opened the door to the pantry and showed claimant the source of the water. He observed that it flowed in a straight path leading from the radiator, beyond the doorway and toward the coffee service area. Claimant testified that on November 5
th and 6th, the two days prior to his accident, water had accumulated in this same area and the correction officer in charge had directed that it be mopped up by inmates.
After he fell, claimant asked one of the correction officers in charge of the area, Officer Moore, if he could get medical treatment for his back and arm but was told to complete his work assignment. Officer Moore also, according to claimant, failed to fill out the required inmate injury report. Claimant asserted that his subsequent efforts to obtain treatment over the next several days were futile, until five days after the injury when he saw a physician's assistant who applied a soft cast and ordered X rays. Claimant's ambulatory health record (Ex.3) shows that he was seen at 8:20 a.m. on November 7
th, but the physician's assistant's notes for that date contained no reference to any complaint about his arm, mentioning only that he was experiencing pain in his back. On November 12th, claimant's right arm was observed to be significantly swollen, and a soft cast was applied. The next day, claimant's arm was x-rayed, revealing a non-displaced fracture (Ex. 4), and a hard cast was applied, which he testified he was required to wear for approximately five months. On November 15th, when he was again seen at the infirmary for his complaints of back pain, claimant requested that an accident report be filed with respect to the November 7th incident, and he was advised to direct that request to the mess officer or a civilian worker in the mess hall (Ex. 3).
Claimant testified that he had made complaints about Officer Moore's refusal to allow him to go to the infirmary and failure to make out an inmate injury report. On November 23
rd, he met with a Sergeant Brown to discuss these accusations, and on November 27th, he filed an inmate grievance (Exs. 1a & 1b).[1] The following day he was called to a meeting with Sgt. Brown, Officer Moore and two Lieutenants. He testified that when he repeated his assertion that Officer Moore was required to fill out an inmate injury report and allow him to go to sick call, Lt. Lopicolo hit him twice in the face with his fist. Claimant fell and, while sitting on the floor, he was then "punch-slapped" by Officer Moore. The other officer, Lt. Herber, then acted as peace-maker, getting claimant to his feet and defusing the situation. Claimant testified that he was first taken to "the box" and, an hour or two later, to the infirmary.
At trial, Correction Officer Moore stated that on November 7
th, he was assigned as a yard officer and that his duties would have included being in the mess hall during breakfast. Although acknowledging that he was familiar with claimant, Officer Moore stated flatly that the slip and fall incident never happened. If it had, or if claimant had come to him complaining of an injury, the officer would have written an injury report and sent him to the infirmary. Officer Moore also denied that there had been a puddle of water near the coffee service area, either on the day in question or on the two previous days. He stated that if he had observed such a condition, he would have directed that it be mopped up and submitted a work order to have the leak repaired. Because no work order was submitted, he concluded that he had seen nothing to report.
With respect to claimant's allegations of an assault on November 28
th, Moore testified that there was a meeting in an office of the housing unit, attended by himself, claimant, Sgt. Brown, and Lt. Herber. The meeting was not a formal hearing but, rather, an attempt by Lt. Herber to get more information regarding the complaint filed by claimant. Moore testified that when claimant, who was wearing a cast on his arm, was asked about his allegations, he became very loud and threw himself on the ground, yelling "beat me, hit me." At this point Lt. Lopicolo, who was assigned to an adjoining housing unit, entered the office. Moore stated that none of the officers touched claimant, other than the assistance Moore himself gave in helping claimant up from the floor. It should be noted that Officer Moore and claimant agree that there was no history of animosity or dislike between them prior to the events of November 1996.
With respect to the events of November 7
th , testimony was given, or deposition or hearing testimony was read, from two other inmates (Hulse and Cruz), assistant cook Joel Mojica, cook Robert Fisher, maintenance supervisor Roger Maines, and Physician's Assistant Macomber. Inmates Hulse and Cruz (testifying at a deposition and at a Tier II hearing on claimant's grievance, respectively) supported claimant's assertion that there had been a continuing problem with the leaking radiator located in the spice pantry and that there was frequent need to mop up water that collected because of it. Mojica denied having any knowledge of the accident and also stated affirmatively that he had never taken any inmates into the pantry to look at the radiator in question. Fisher, the cook, was at the mess hall on the day in question but did not see claimant fall. He was also unaware of any leak near the spice pantry. Roger Maines, who would have been responsible for repairing any leak in the radiator, acknowledged that there must have been some problem, because a memorandum sent in response to claimant's complaint (Exhibit 7) stated, "This steam leak has been repaired." If no leak had been found, he said, the notation would have been different. Other testimony suggested that the conditions caused by the leaky radiator had been present for some time prior to claimant's accident, but there was no documentary evidence of any repairs being made prior to the post-accident written response provided by Mr. Maines.
As to claimant's accident, inmate Cruz testified that he saw claimant slip and fall, and inmate Hulse stated that he heard a crash and saw claimant being lifted up from the floor by the assistant cook, Mojica. On the other hand, Officer Moore, as indicated, denied that there was such an accident, as did Mojica, whom both claimant and Cruz placed immediately on the scene. Counsel for claimant stresses the inconsistency of the State's two witnesses, noting that a few weeks after the accident they wrote that they had "no recollection" of the event (see Exs 8, A), while at the trial, several years later, both stated unequivocally that the incident did not occur.

At trial, Physician's Assistant Macomber testified that when he saw claimant on November 7
th, he made no notation about his arm because he considered claimant's complaint about his arm, as compared to his complaint about his back, to be "insignificant" and because he saw no swelling. Several years previously, however, at the Tier II hearing approximately a month after the event, Macomber testified that he observed some swelling of the forearm when he examined claimant on November 7th.
With respect to events at the meeting held on November 28
th, Officer Moore, Sgt. Brown, and Lt. Herber all testified that claimant was not harmed and, in fact, not touched by anyone present other than Officer Moore, who assisted him in getting to his feet after he had thrown himself on the floor and, without reason, screamed that he was being hit and beaten (see, Exs 10, 25). They also reported that claimant was subsequently issued a disciplinary report for creating a disturbance in the office.
The State owes to inmates who are directed to participate in a work program during incarceration a duty to provide a reasonably safe workplace (Callahan v State of New York, 19 AD2d 437, 438, affd 14 NY2d 665). On the other hand, the State is not the insurer of the safety of inmates in its correctional institutions (Casella v State of New York, 121 AD2d 495), but has a duty to exercise "reasonable care under the circumstances" to protect against foreseeable hazards (Basso v Miller, 40 NY2d 233, 241). To establish that the State violated this duty, claimant must prove that it had notice of the condition and that it failed to act reasonably to remedy the condition (Gordon v American Museum of Natural History, 67 NY2d 836; Goldblatt v State of New York, 72 AD2d 886; Rinaldi v State of New York, 49 AD2d 361).
It is evident that, despite the too-ready denials made by some of the prison staff, there was some problem with water accumulation from a leaking radiator located in the spice pantry near the food service line of the small mess hall. In addition to general awareness of the condition, there was a work request and reports verifying that some problem existed. The court also accepts that on November 7, 1996, claimant slipped and injured his right arm while working in the mess hall. However, none of the witnesses, including claimant, were able to describe the fall in such a way that its cause can be readily ascribed. There are a number of factors that can cause someone who is carrying a tray to fall, and if, in fact, there was an accumulation of water such as claimant described, it is difficult to believe that he did not see it and take appropriate action to avoid it, particularly if, as he claims, he had been aware of the problem for several days. An individual is bound to see that which could have been observed by a proper use of his senses (Weigand v United Traction Co., 221 NY 39; Doyle v State of New York, 271 AD2d 394). Even if the existence of a leaking radiator is accepted, the evidence presented at trial permits no more than speculation as to the cause of claimant's fall, and it is not proper to impose liability on such a basis (see, Zuckerman v City of New York, 49 NY2d 557, 562; Bernstein v City of New York, 69 NY2d 1020, 1021-1022 ["Where the facts proven show that there are several possible causes of an injury * * * and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury"]). Assuming claimant did report the incident, Officer Moore's failure to make out an accident report may have been a procedural violation but it would not have caused claimant any direct harm, and any decision about whether claimant needed medical attention would have been a discretionary call by the officer. In any event, little more than an hour passed before claimant was able to report to the infirmary.
With respect to the alleged delay in medical treatment, however, there is credible evidence to support a conclusion that claimant sought treatment for his arm injury on November 7th and that his complaints were not given serious attention until the 12th, when a soft cast was applied and X rays were ordered. The timing of claimant's report to sick call on the 7th, and the nearly-contemporaneous statements of Physician's Assistant Macomber that claimant had mentioned during that visit that he had hurt his arm in a fall overcome the negative evidence that Macomber failed to record that complaint on the medical report in the ambulatory health record. No matter what caused claimant to fall in the mess hall, he was entitled to prompt and adequate treatment. "[A] duty of ordinary care is owed by prison authorities to provide for the health and care of their charges" (Gordon v City of New York, 120 AD2d 562, 563, affd. 70 NY2d 839; see also, O'Grady v City of Fulton, 4 NY2d 717). In view of the seriousness of the injury that was revealed once X rays were taken, the court credits claimant's testimony that he made "numerous" complaints before receiving treatment for his injury.
Finally, the court finds that claimant's accounts of the events of November 28
th are simply not credible. There was no evidence to support his version of events, and the statements of the several officers involved in the meeting were consistent and credible.
In summary, claimant has failed to prove by a preponderance of the credible evidence that he fell on November 7
th because of a dangerous condition caused by the State's negligence or that he was the victim of an assault by one or more correction officers on November 28th. Consequently, the State is liable only for the additional pain and suffering that claimant experienced during the six days during which he did not receive treatment for his injured arm. The court finds that the sum of $1,000.00 constitutes adequate and just compensation for such pain and suffering and the Clerk of the Court is directed to enter judgment in favor of the claimant for said amount. Any motions upon which decision had been reserved are denied.

July 13, 2001
New City, New York

Judge of the Court of Claims

[1] This grievance was subsequently dismissed because by the time of the hearing claimant had since been transferred to another correctional facility and was "no longer affected by the matter at hand" (Exh 2).