Claimant alleges that she aggravated a pre-existing medical condition when she
was injured while an inmate at the Albion Correctional Facility (Albion).
Claimant is of Hispanic origin and is heavily accented, and while she has some
difficulty with the English language, her testimony at trial was comfortably
understood and comprehended by me.
In 1973, while living in Puerto Rico, she was a passenger in a motor vehicle
that was involved in an accident. As a result, Claimant sustained personal
injuries, including a fracture of her right leg which resulted in surgery for
the open reduction of the fracture and the insertion of an intramedullary rod in
her right femur. In 1984, she was sentenced to the custody of the New York
State Department of Correctional Services (DOCS) until her release in 1990.
During that period she complained about her leg and while at the Bedford Hills
Facility in 1986 was sent for x-rays to verify the existence of the
intramedullary rod in her right leg. Thereafter, while still in custody, she
was injured while bathing and fell on another occasion when walking on a hill.
Both incidents involved her right leg. During this entire period under the care
and custody of DOCS, she was assigned to a single bed.
Claimant remained out of custody until 1994, when she was once again placed in
the custody of DOCS and, on August 3, 1994, she was transferred to Albion. Upon
her arrival at Albion she initially was assigned to Reception Center M-2 where
she was assigned at first to a top bunk in the cubicle, but was quickly
reassigned to a lower bunk. While in M-2 she was given a medical examination
and was given an "Assessment for Assignment" which stated that she could not
climb ladders and could only participate in vocational programs which did not
After some seven weeks in reception on September 27, 1994, Claimant was
assigned to general population housing in Unit K-2. Upon entering the K-2
cubicle area, she showed the "Assessment for Assignment" to the Correction
Officer (CO) in charge, but she was nonetheless directed to a top
She complained, explaining that she could not climb and, when the CO refused to
reassign her to a lower bunk, she requested to see the Correction Sergeant
(Sergeant). Her request to see the Sergeant was denied, and Claimant
reluctantly acquiesced, accepting the top bunk assignment. Claimant referenced
a six-step ladder which she used to get in and out of the top bunk. She also
stated that there was a footlocker that she used to climb to and from the top
bunk, with the help of other inmates. She only climbed to the upper bunk to
After only one week in the top bunk, on the evening of October 3, 1994, when
Claimant started to climb down, her right leg gave way. She lost her balance
and fell to the floor.
As a result she was injured and was taken to the facility infirmary for
treatment. She was released and returned to her housing unit, K-2, whereupon
she was immediately assigned to a lower bunk at the direction of the Sergeant.
Claimant remained assigned to a lower bunk for the balance of her incarceration
at Albion. She claims injury to her right knee, her head, and the left side of
her back as a result of her fall from the upper bunk on October 3,
In April 1995 Claimant was transferred to the Defendant's Bayview Correctional
Facility where she was medically assessed in the infirmary and then sent to an
outside hospital for x-rays. Physical therapy was provided every two weeks
until 1996, when she was released from custody. She was given medications for
pain. She continued to suffer and complained of pain in her right knee and leg
for some two years after this accident, ending in 1996.
The Albion employee in charge of inmate movement and control, Bonnie Lugo,
testified that she would assign inmates to housing locations when they entered
the facility and as they moved through the facility. She made the initial
housing and bed location assignments for each inmate. It was her testimony that
she had no medical information available when she made the initial assignments,
and that she "just had names and numbers and she put them in a bed." However,
if the inmate had "a medical slip documenting that she could not be in a top
bunk, she would then show it to a housing unit officer, and they would then call
me back, and we would move them to a bottom bunk."
Ms. Lugo's review of the Claimant's internal movement history documents that on
August 5, 1994, Claimant was placed in the reception center and working in the
community prep program, and then became a library porter and was assigned to a
bottom bunk. On September 27, 1994, Claimant was moved to the general
population and assigned to a top bunk. This assignment officer did not receive
any information or documents about the individual prisoner. She never sees the
medical information about each inmate and indeed she admits that "I have no
knowledge of the inmates at all, so I have no factors to take into
consideration." She stated that the Albion system relies upon the area Sergeant
to call and request different bed assignment where medically indicated, and then
she would reassign such inmate to a bottom bed (lower bunk) location. Here of
course Claimant, despite her objection, was assigned to the top bunk from
September 27, 1994, the beginning date of her assignment to general population,
until October 4, 1994, when, on the first day after her accident, she was
assigned to a bottom bunk. This change of bed location was made without any
input or documentation by Ms. Lugo, the assignment officer - she had no idea why
the change was made. Thereafter, while at Albion, Claimant was never assigned
to a top bunk.
Correction Officer (CO) Estep testified that while he was not present on
October 3, 1994, when Claimant fell and was injured, and had no personal
knowledge of the accident, he did perform the duties of an Albion Hall Captain.
He would direct incoming inmates to their assigned bed location. He stated that
it was the duty of all incoming inmates to provide the Hall Captain with a copy
of the "Assessment for Assignment" document when they first reported to the
dormitory. However, he testified that that document would have no application
to the bed assignment of the inmate, regardless of its restrictions. He stated
that there would have to be a separate medical restriction sheet in the
possession of the inmate to change the bed location. Such a form was never
produced by the Defendant, including one for Claimant's permanent transfer on
October 4, 1994, from an upper bunk to the lower bunk.
CO Estep admitted that he had the authority to call the inmate movement and
control office to change the bed assignment, but only if he had the proper
documentation. He noted that an Area Sergeant can also call to make a change of
He further testified that there were never any ladders in any of the
dormitories as ladders could be used to climb a fence. It goes without saying
that if there are no ladder devices to access the top bunks, then there must be
some device(s) that would assist inmates to reach the top bunk. However this is
accomplished, with whatever nomenclature used for such climbing devices, it
would inherently entail a "ladder function/climbing function" to reach a height
of five feet or more. There is a headboard, a foot board and side rails. CO
Estep observed that as a Hall Captain, the method that an inmate uses to access
the top bunk "... is not my decision. Usually they step ... they're short
lockers. Some actually jump up. I don't exactly know how they all get up there
... I just know they all get up there ... they may [climb the post]." He claims
that he does not know the exact height of the lockers in the dorms but estimates
it as five feet. He states that inmates get down the same way. "They climb
down. They're assigned the top bunk and it's their responsibility to sleep
there." When asked, "Do you think that someone who has difficulty climbing
ladders might have difficulty getting to the top bunk?", CO Estep responded,
"That's not up to me ... to decide."
This testimony on behalf of the Defendant is simply not creditable. Beyond
that, it reeks of a callous indifference and is not believable. Claimant is
five feet two inches tall and, in 1994, weighed approximately 170 pounds and had
a documented leg disability.
It seems clear, and I find, that there was no ladder system in place to access
the top bunk, and that Claimant used a footlocker and the help of other inmates
to assist her in climbing to and from the top bunk. I find that the Defendant
had actual knowledge of her then-existing medical condition, including her 1973
operation and the intramedullary rod. I fully credit the testimony of the
Claimant that she requested the assistance of the Sergeant, and the fact that
the K-2 housing unit Correction Officer refused.
Claimant's expert orthopaedic surgeon testified persuasively that Claimant's
pre-existing injury to her right leg in 1973 was a substantial contributing
factor in causing the fall when she was attempting to climb down from the bunk
on October 3, 1994. Thus, the Defendant must be held answerable in damages for
its negligence in assigning Claimant to an upper bunk when it should have known,
and in fact did know, that Claimant was medically disabled from assignment to an
upper bunk. That negligence was the sole proximate cause of the aggravation of
her pre-existing condition and other injuries described below. Claimant is not
in any way culpable for the injuries she sustained.
Claimant's expert found that the injury at Albion caused pain and suffering,
including a two year aggravation of the pre-existing degenerative arthritis of
Claimant's right knee. He finds no permanent disability after the two year
period relating to this accident. To the extent that Defendant argues that
aggravation of a pre-existing injury must be specifically pleaded and proven,
Ogunti v Hellman
, 281 AD2d 404, the Court, sua sponte
, amends the
pleadings to conform to the proof (CPLR 3025), and I note that the Defendant was
placed on notice of such allegations more than two years prior to trial (Exhibit
5), and thus no prejudice would appear arguable.
Claimant states that she suffered pain, disability, and a limp, and indeed, her
ambulatory health record is replete with her complaints of leg and knee pain and
the aggressive treatment performed by the Defendant, not at Albion, but only
several months later at Bayview Correctional Facility. That treatment involved
x-ray examinations, a knee brace, exercise therapy, medications, a
rehabilitation program, physical therapy, limited activity and a referral to a
Hospital Orthopaedic Clinic, including consultations, for surgical removal of
the intramedullary rod.
Claimant alleges that the sequellae of this fall and her additional pain and
suffering ended some two years after the accident.
Based upon all of the above, including Claimant's highly creditable testimony,
I award her the sum of $24,500, for all damages past, present and future. All
motions not heretofore ruled upon are now denied. The Clerk is directed to
enter judgment accordingly.