New York State Court of Claims

New York State Court of Claims

ROSARIO v. STATE OF NEW YORK, #2001-018-060, Claim No. 93531


Court found State 100% liable for injuries sustained by wheelchair-bound, inmate Claimant. Claimant fell when exiting a building which was not handicap accessible, and he was unassisted

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:
Attorney General of the State of New York
By: TIMOTHY P. MULVEY, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant instituted this lawsuit against the State of New York to recover for injuries he sustained on September 7, 1995, while incarcerated at Watertown Correctional Facility (hereinafter Watertown). Claimant, who is confined to a wheelchair, asserts that the State was negligent in failing to install a handicap ramp or otherwise provide ingress or egress from the building where he was housed. The trial of this matter was bifurcated and this decision addresses only the issue of liability.

In 1992, Claimant lost a leg as a result of a gunshot wound and has thereafter been confined to a wheelchair except for short periods of time when he uses crutches or braces. After he was incarcerated, Claimant was assigned to the Watertown facility in February 1995, which lacks handicap accessibility. Claimant resided in that facility's infirmary because it was the building easiest for him to enter and exit. Although there is more than one door in the infirmary, Claimant was only allowed to use one door. The other doors were for inmates arriving for sick call or for employees.

Received into evidence were photographs of the door used by Claimant, showing a double metal door. One of the doors remained locked. The unlocked door pushed open to the outside. At the base of the doorway, there was a metal threshold which was raised above the floor of the infirmary about one-half inch. From the doorway, there was a 2-3/4" to 3-1/2" step to the ground.

On a typical day, Claimant would leave and return to the infirmary twice; once to go to school and once for recreation. To leave the infirmary, Claimant would go down the hall, past the guard, to the door. He then threw the door open; and before it could close on him, he lifted the front wheels of his wheelchair up over the threshold and set them down on the ground outside. Claimant would then catch the door. That was how he was trained, after his injury, to use the wheelchair at Bellevue Hospital. Claimant had to lift the front wheels, or he would fall forward down the step. To go inside, Claimant would hold the door open with his left hand and use his right hand to lift the wheels up over the threshold.

On September 7, 1995, Claimant was leaving the infirmary at approximately 6:15 p.m. for recreation. Correction Officer Derrigo was at the officer's station located in the main hallway; the door Claimant used was at one end of that hall. Claimant remembers passing the officer and notifying him that he was going to the yard for recreation. He threw the door open, lifted his wheels, and started falling backwards. His next memory was awakening in Good Samaritan Hospital in Watertown.

Officer Derrigo did not witness the accident, but heard a noise as if something was falling to the floor. He looked toward the main door and saw Claimant on his back in his wheelchair with the door propped open. He and another officer assisted Claimant who was taken by ambulance to the hospital. On direct examination, the officer testified that he had observed Claimant "popping wheelies" (lifting the front of his wheelchair and balancing on the larger back wheels) on many occasions, including when leaving the infirmary. Mr. Derrigo had warned Claimant that he would tip over backwards if he continued that behavior.

On cross-examination, Officer Derrigo said Claimant always lifted his front wheels going out the door when the door was closed; he needed to throw the door open and negotiate the approximately three-inch drop. When the door was propped open, Claimant could ease himself over the threshold without lifting the front wheels first.

Testifying on behalf of the defendant, in addition to Officer Derrigo, was Correction Officer Ronald Reynolds. In September 1995, he was the Hospital Officer from 3:00 p.m. until 11:00 p.m. He recalled that Claimant was assigned to live in the infirmary because of Claimant's confinement to a wheelchair. Officer Reynolds testified that like Officer Derrigo he spoke to Claimant about the danger of "popping wheelies" on a couple of occasions telling Claimant that if he kept doing it he was probably going to get hurt. Claimant performed this activity when he was going to "rec"[1]
as he went out the door. Generally, he would be about three-to-four feet from the door when he lifted the front wheels up. On cross-examination, the officer said he did not know if it was necessary for Claimant to lift the wheels to get in and out of the door.
Both officers saw Claimant move about the infirmary without his wheelchair. Officer Reynolds recalled he would go to the yard without his wheelchair toward the end of his stay at Watertown. He could not recall if it was before or after the accident in question. Officer Derrigo saw Claimant use braces or crutches on occasion in the infirmary. Claimant testified he could get around by holding onto something, and that he does use crutches for short periods of time.

Received into evidence, subject to objections contained therein or any made by post-trial submissions,[2]
were transcripts from the depositions of the Nurse Administrator, John O'Kay, Correction Officer Derrigo, and Mary Detterich, the nurse on duty at the time of Claimant's accident. Nurse Detterich testified that when she reached Claimant after his fall, he was unconscious, on his back, and "the wheelchair was inside and probably his legs were sticking outside."[3] Her notes of this incident reflected that he was half-in and half-out of the doorway.
On the issue of notice to the State, the Court received documents that indicate the Claimant filed a grievance in May 1995, approximately four months before this incident, indicating that on April 22, 1995, Claimant hit his head after he fell backwards in his wheelchair while exiting the infirmary. In the grievance he requested that a ramp be installed or that he be transferred to Green Haven, a maximum security facility with handicap accessibility and physical therapy services. Also received (for purposes of notice only) were letters dated June 7, 1995 from the Assistant Director of Health Services of the Department of Correction which were sent to Claimant's mother and wife, indicating a transfer for Claimant was under consideration and that he would receive assistance in entering and exiting the infirmary.

Both parties addressed this matter under theories of premises liability.[4]
The claimant, who was pro se when the claim was filed, alleged that the State was negligent "in falling [sic] to mantain [sic] the aforesaid premeses [sic] in a safe condition by failing to provied [sic] adecute [sic] ramp for disable [sic] or handicap [sic] and by failing to keep the surfaces clear of any substances.[5]
The State owes a duty to maintain its premises "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk." (
Basso v Miller, 40 NY2d 233, 241) This duty extends to protect those in the State's institutions. (See, Killeen v State of New York, 66 NY2d 850) The question is whether under these circumstances, the State breached its duty to Claimant.
The Commissioner of Correction has discretion in transferring inmates from one facility to another and the inmates have no right to choose their housing status or facility. (Correction Law §23,
Matter of Davis v Office of Classification & Movement, New York State Dept. of Correctional Servs., 208 AD2d 922) Clearly, Claimant had no control over where he would be housed. (Matter of Davis v Office of Classification & Movement, New York State Dept. of Correctional Servs., supra at 922)
The State had ample notice of the potential for injury, as well as notice of the specific condition which Claimant alleged was dangerous based upon Claimant's previous fall trying to exit the infirmary and the grievance he filed with the facility. In its grievance response in June, the State agreed to install a ramp to make the infirmary handicap accessible but had not done so as of the date of the accident. Even if the ramp could not be immediately constructed, this was not the only action the State had available to it for avoiding Claimant's injury. The claimant had to get permission from a correction officer before leaving the infirmary. The burden on the defendant would have been negligible to have an officer or one of the nurses on duty assist Claimant in exiting the building. Another option would have been to transfer Claimant to a handicapped accessible facility, which he had requested when he filed his grievance, and which was being considered at the time Claimant was injured. It is inexplicable why Claimant would be housed in a facility which is not handicapped accessible in the first instance. Accordingly, the Court finds the State 100 percent liable for the injuries to Claimant. The Clerk is directed to enter an interlocutory judgment and this matter will be set down for a trial on damages.

February 7, 2001
Syracuse, New York

Judge of the Court of Claims

[1]All quotes are from either the Court's trial notes or the trial transcript unless otherwise noted.
[2]No objections were noted in the post trial briefs.
[3]This quotation was taken from the deposition transcript.
[4]This action was not brought for a violation of the Americans with Disabilities Act (42 USCA §12101, hereafter ADA). Accordingly, this Court does not address the issue of jurisdiction or the applicability of the Act.
[5]Claim, paragraph 5.