New York State Court of Claims

New York State Court of Claims

LO RUSSO v. THE STATE OF NEW YORK, #2002-015-567, Claim No. 101972


Pro se claimant failed to establish State's liability for medical condition alleged to have resulted from toilet overflow and denial of proper cleaning equipment.

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:
Joseph LoRusso, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this pro se claim took place at Marcy Correctional Facility on May 13, 2002. The claim seeks recovery of money damages for personal injury allegedly sustained by claimant following his alleged prolonged exposure to human waste attributable to the overflow of his cell toilet at Mid-State Correctional Facility S-Block on June 29, 1998. The toilet began to overflow at 4:30 p.m. and continued for approximately one hour. A plumber was called some five hours later when inmates failed to unplug the fixture. The claim alleges that claimant's requests for cleaning supplies to clean the cell were denied by Correction Officer Holliday and Sergeant Ransom. It is also alleged that the unsanitary conditions resulting from the overflow were allowed to persist for five days and that claimant developed a skin rash as a result.

At trial claimant offered the following testimony[1]
. On June 29, 1998 claimant's cell mate Roy Prindle used the cell toilet and when he flushed it wastewater overflowed onto the cell floor. Claimant called Correction Officer Holliday who shut off the water. Claimant was given a plunger by Sergeant Ransom. The two correction officers refused to order a clean up of the cell and Sergeant Ransom issued claimant a misbehavior report charging him with a violation of Rule 116.10 which prohibits inmates from losing, destroying, stealing, misusing, damaging or wasting State property (see, Exhibit 1) for allegedly causing the blockage by trying to dispose of newspaper in the toilet. Claimant was found guilty on the charge and was sentenced to an additional 60 days in the Special Housing Unit (SHU) and the loss of commissary, packages and phone privileges for 60 days. The Superintendent's designee acting as hearing officer noted in his decision that claimant admitted putting newspaper into the toilet.
Claimant filed an inmate grievance related to the denial of appropriate clean up materials and the grievance was accepted to the extent that cleaning materials will be made available in the future and the S-Block management team will be instructed on the proper method for addressing future occurrences. The Central Office Review Committee further directed that the Watch Commander be notified of future flooding conditions (
see, Exhibit 2).
Claimant offered the Department of Correctional Services (DOCS) General Housekeeping Manual dated October 27, 1989 which the Court received in evidence over an objection by defense counsel on the grounds of relevance. Claimant directed the Court's attention to the last page of Exhibit 3 which describes DOCS decontamination procedures.

The claimant testified that on the night of the incident he went to sick call complaining of rashes on his hands, feet and shoulder and was given cream to apply. He alleges that the unsanitary conditions of the cell persisted for five days during which he was fed in the cell. The only clean up which took place during that five day period was performed by claimant and his cell mate with tissues, newspaper and wash cloths. He asserts that although on the fifth day he was provided with a mop and bucket, he was denied disinfectant or bleach. Claimant alleges that his rash continued for approximately one and a half months during which time he was also being treated for herpes. Claimant offered a certified copy of his ambulatory health records for the period June 22, 1998 through September 3, 1998 which was received into evidence without objection. Claimant's attempt to introduce a treatment sheet from the New York Psychiatric Center dated September 22, 1998 was denied upon the defendant's objection that the medical records were uncertified and bore little relevance to the matters at issue. The Court further refused to accept into evidence three sick call slips containing claimant's own medical diagnosis of his condition and its purported cause. On cross-examination claimant indicated that he attended emergency sick call on the night of the incident, June 29, 1998. He further testified that the herpes for which he was treated prior to the incident did not affect his hands, feet or shoulder. In response to defense counsel's inquiry claimant acknowledged that several hours after the overflow a plumber arrived and fixed the toilet.

The Court asked claimant whether he had been diagnosed with herpes prior to the date of the incident. He indicated that DOCS medical staff did not know the cause of his prior existing rash. He also stated that DOCS medical personnel differed on the diagnosis of herpes prior to the June 29, 1998 incident with some medical personnel indicating it was herpes while others indicated it was not. The herpes diagnosis was later confirmed by a blood test administered at Mid-State Correctional Facility in the year 2000.

Claimant called Correction Officer Scott Robinson who was employed by DOCS and assigned to S-Block Gallery on June 29, 1998. The witness did not recall the toilet overflow incident itself and did not recall the subsequent superintendent's hearing resulting from the filing of a misbehavior report against claimant by Sergeant Ransom (
see, Exhibit 1). He acknowledged that on his assigned shift he was on feed up detail and would have noticed the alleged contamination in claimant's cell while distributing food trays. He described the procedure which was to be followed if a cell were contaminated by human waste which included calling the area Sergeant, removing the inmates from the cell to the rec pen and calling inmate porters to clean the cell area. He admitted that if a toilet overflowed an inmate should not remain in or be fed in a contaminated cell.
On cross-examination the witness testified that the building had been occupied less than a month prior to June 29, 1998. He also testified that if a toilet overflowed the affected inmates would not be required to clean up the cell; that job would fall to two inmate porters. The witness stated that mops and buckets are kept in the slop sink area on the floor but that bleach and disinfectant were stored in a secured area in the basement of the facility. The witness testified that at the time of the incident there was no air circulation system in use in S-Block except for floor fans. The witness recalled that conditions within the facility in June 1998 would have made it unbearable for inmates and staff alike if human waste were permitted to remain on the floor of a cell for a number of days as alleged by claimant.

Claimant questioned the witness on redirect examination about who would have to clean up a toilet overflow if inmate porters were unavailable and the witness stated that in such a case the job would probably be done by security staff. The witness further indicated, however, that porters were always available in S-Block. The witness reiterated his earlier testimony that he did not specifically recall the June 29, 1998 incident.

Claimant next called Joseph Brockway who was employed by DOCS in June 1998 and worked in Mid-State S-Block from its opening day until mid-December 2000. The witness admitted that he performed plumbing work in S-Block and recalled that there were quite a few problems with the plumbing at the newly opened facility but professed having no specific recollection of the subject incident on June 29, 1998 or of a subsequent superintendent's hearing related to the incident.

The witness testified that the toilets of two cells per floor emptied into the same waste pipe and that it would be impossible to tell which of the two cells caused the problem. He could determine which floor was responsible but could not pinpoint which of the two cells on that floor was the point of origin of a blockage unless the blockage itself was found in a specific toilet rather than in the connected sewer line. The witness stated that he was not required to clean up the area of the overflow and that that task would be done by inmate porters usually prior to his arrival. Inmates would generally be removed from the cell `to the rec pen prior to his entry into the cell.

On cross-examination the witness stated that most of the toilet problems in S-Block originated from attempts by inmates to hide or transmit contraband. He testified that when called to the scene of a toilet overflow he would generally wait for the area to be cleaned up prior to entering the cell.

The witness on re-direct examination acknowledged that it was not always necessary for him to enter a cell in order to deal with a toilet blockage problem since sometimes it could be corrected from the pipe chase clean out. He further stated that water would have been shut off by the correction officer upon receiving a report and he could not recall ever having responded to an overflow scene where the water had not been turned off prior to his arrival.

On re-cross examination Mr. Brockway testified that once repairs stemming from an overflow situation were completed he would have entered the cell to verify that the toilet was operating properly.

The defendant called Mr. Brockway as the State's witness and introduced into evidence a certified copy of a Mid-State business record (Defendant's Exhibit A) which in relevant part indicates that Mr. Brockway was employed on the 7:45 - 3:45 p.m. shift and was approved for overtime for the time period 19:25-20:15 p.m (7:25 - 8:15) on June 29, 1998. The exhibit further disclosed that the witness repaired a toilet back up at cells C45-C42.

Claimant's next witness was Kim Cole, a registered nurse since 1977 who was employed at Mid-State S Block from its opening in 1998. The witness indicated that she could not answer claimant's question as to whether human feces or urine are by nature infectious or toxic. The witness stated that when she has contact with such substances she either wears rubber gloves or washes her hands thoroughly. She testified that she did not specifically recall the June 29, 1998 incident involving a toilet overflow.

Asked generally if an inmate should be kept and fed in a contaminated cell the witness stated that the cell should have been cleaned. She admitted that germs can travel but stated that washing of the hands is generally sufficient to prevent the spread of germs. The witness did not recall treating claimant for rashes but after being shown Exhibit 4 she indicated the records showed treatment of a dry, scaly rash on claimant's wrist on July 1, 1998 which was treated with hydrocortisone cream. Her notes also indicated that claimant had showered after exposure to the human waste and that she had attempted to reassure the patient about the risks incident to such exposure.

Defense counsel chose not to cross-examine Nurse Cole but called her as the defendant's witness. She marked claimant's Exhibit 4 with red Xs indicating entries on the exhibit made by her relative to her treatment of claimant. The witness acknowledged that on June 20, 1998 (i.e., prior to the June 29, 1998 incident) claimant appeared at sick call complaining of jock itch which she characterized in the report as a fungal infection.

The defendant offered Exhibit B, a certified copy of claimant's medical records for the period June 3, 1998 to March 12, 2000. The witness testified that those records do not indicate claimant was seen at sick call on June 29, 1998 but show that he reported for sick call on July 1, 1998 and on July 2, 1998. She stated that every sick call involving an inmate must be documented.

Nurse Cole testified that on July 1, 1998 claimant was treated for a rash on his left forearm which was not present upon examination the following day. It was necessary, however, for her to reassure claimant regarding the rash and to counsel him again on the importance of proper hygiene with regard to his fungal infection. Claimant next reported to sick call on July 18, 1998 complaining of a headache. He did not complain about a rash on that visit. The next entry was made July 28, 1998 and indicates a complaint of and treatment for jock itch and athlete's foot. The next entry in the medical record which was made by the witness was for sick call on August 4, 1998 but contains no indication of any complaint of a rash by Mr. LoRusso.

As the State's witness Nurse Cole was cross-examined by the claimant and admitted that if claimant were given a cream at sick call and the treatment appeared to be working it would not be necessary for that patient to report to sick call every day. She testified that it would be necessary for him to report if he exhausted his supply of prescription medication but that over the counter medicine could be refilled upon request without a sick call appearance.

The final witness was Gregory Ransom who identified himself as a Sergeant employed by DOCS and assigned to S-Block at Mid-State in June 1998. The witness testified that he did not recall the subject incident specifically but knows that it resulted in the filing of a misbehavior report. His review of the misbehavior report refreshed his recollection concerning the incident to the extent of the details contained therein. Sergeant Ransom stated as several previous witnesses had that upon discovering an overflow problem the correction officer on duty would turn off the water and contact the area supervisor.

The witness testified that he filed the misbehavior report against claimant based upon claimant's admission that he placed newspaper into the toilet. Sergeant Ransom could not recall if claimant and his cell mate had been moved out of their cell prior to his arrival on the gallery but stated that he does not believe that claimant's request for cleaning supplies had been denied or that his cell was not cleaned following the overflow.

On cross-examination Sergeant Ransom indicated that the misbehavior report was written on the same day as the incident, probably shortly after its occurrence. He testified regarding the procedure to be followed in the event of a toilet overflow which substantially conformed to Officer Robinson's earlier testimony described above.

On redirect the witness indicated that if porters were used to clean claimant's cell he would hope that the console officer would document that occurrence. He asserted, however, that the cleanup of the area would take precedence over documenting the use of porters.

Claimant rested his case and the defendant moved to dismiss the claim due to claimant's failure to prove a prima facie case by failing to show a causal relationship between the events of June 29, 1998 and any alleged injury. Specifically, counsel argued that claimant offered no medical proof tending to establish a connection between the event and his reported injury. The defendant rested without calling any witnesses and the court reserved on the motion.

The State is required to use reasonable care to protect inmates of its correctional facilities from foreseeable risk of harm (
Flaherty v State of New York, 296 NY 342; Hann v State of New York, 137 Misc 2d 605). It is not, however, an insurer of the health and safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY 711; Priester v State of New York, 2002 WL 139036 [NY Ct Cl] and negligence will not be inferred from the mere happening of an incident (see, Mochen v State of New York, 57 AD2d 719. To establish liability an inmate must prove that the defendant had notice of a dangerous or defective condition, that it failed to remedy the condition within a reasonable time and that such failure was a proximate cause or substantial factor in causing the injury for which claimant seeks compensation (Gordon v American Museum of Natural History, 67 NY2d 836; Goldblatt v State of New York, 72 AD2d 886; Sikora v Apex Beverage Corp., 282 AD 193, affd, 306 NY 917; Miller v National Cabinet Co., 8 NY2d 277).
Since none of the State's employees called to testify in this matter could recall the incident of June 29, 1998 claimant's testimony in that regard stands unrefuted. Such uncontradicted testimony certainly establishes that a seemingly dangerous condition existed in and around Cell C-41 in S-Block at Mid-State Correctional Facility beginning in the afternoon hours of June 29, 1998. The alleged duration of the contamination is, however, another matter. Officer Robinson, Sergeant Ransom and plant utility person Brockway all testified that the area in and around claimant's cell would not have been permitted to remain in a contaminated condition since the overflow would have affected the entire gallery as well as claimant's cell and would have exposed staff as well as inmates to both unsanitary and unpleasant conditions. Furthermore, Mr. Brockway testified that overflows were generally cleaned up prior to his arrival on the scene and since he had no specific recollection of this incident it may be inferred from his testimony that the usual clean up had occurred prior to his appearance on June 29, 1998. Claimant's testimony regarding the duration of the contamination is questionable at best and incredible at worst. It further appears to the Court that claimant would have expressed his concerns about the alleged continuing unsanitary conditions of his cell when he reported to sick call on July 1 and 2, 1998. His ambulatory health record is silent in that regard and casts doubt upon the credibility of his trial testimony.

More importantly, however, claimant offered no medical proof that the rash of which he complained was causally connected to his alleged exposure to human waste over a period of several days (
see, P.A., Matter of, v State of New York, 277 AD2d 671). According to claimant's medical records he was being treated for herpes and was suffering from a rash prior to the date of this incident. No medical proof was offered to differentiate his prior condition from the symptoms complained of after June 29, 1998. Absent such proof the Court would be required to speculate as to the cause of claimant's skin condition which it declines to do.
Claimant has not met his burden of proving the State's liability in this case and the claim is accordingly, dismissed. Any motion not previously decided is denied.

The Clerk shall enter judgment in accord with this decision.

August 23, 2002
Saratoga Springs, New York

Judge of the Court of Claims

[1]The synopsis of the testimony is drawn from the Court's trial notes and the tape recording of the trial.