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
. 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
, 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 (
, 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 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 (
, 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
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
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
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
, 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
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
, 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
, 72 AD2d 886; Sikora v Apex Beverage Corp.
, 282 AD 193,
, 306 NY 917; Miller v National Cabinet Co.
, 8 NY2d
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 (
, 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
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
The Clerk shall enter judgment in accord with this decision.