New York State Court of Claims

New York State Court of Claims

TURCHETTI v. STATE OF NEW YORK, #2002-018-141, Claim No. 94813


Claim dismissed after trial upon defendant's motion. Claimant failed to prove the State had notice of any foreign objects in the food or that the State created a dangerous condition by its food preparation methods or service. Because claimant was pro se, the Court also considered the question of res ipsa loquitur as a basis for the State's negligence. Claimant's proof fails to establish the second element, and therefore cannot gain the inference of negligence.

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, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from defendant for injuries he sustained on April 29, 1996,[1]
while an inmate at Oneida Correctional Facility (hereinafter referred to as "Oneida").
Claimant testified that on the day in question, he had lunch at the facility mess hall. Later that day he developed severe stomach cramps, and the infirmary prescribed a laxative. The next day he returned to the infirmary, and an x-ray was taken showing a foreign metal object such as a staple or twist tie in his colon. Claimant continued to suffer stomach pain, bleeding, and constipation. He returned to the infirmary and was admitted. Another x-ray showed the object had moved to his rectum. After a few days without passing the object and failed attempts at manual removal, claimant was sent to Rome City Hospital on May 3, 1996, where the object was removed via colonoscopy. Claimant was in pain and bleeding from April 29 until May 3, 1996, and continued to have some pain and bleeding after the surgery which subsided over the next two weeks. He was given antibiotics and Motrin.

It is claimant's position that he consumed the foreign object in his lunch from the mess hall. Claimant stated he had no idea how the object got into the food, but he felt the kitchen was improperly operated with only one correction officer for every five inmates. He believes the State should be held liable for failing to properly inspect the food especially because the food served came from another State controlled area.

The defendant called Colleen Brault, a food Service Administrator I at Oneida who identified a portion of Exhibit 2 as part of the Operations Manual Policy and Procedures relating to food service inspections. Ms. Brault testified that there are two routine daily inspections of the kitchen which include cleanliness of all work areas, appliance temperatures and equipment condition. Safety and cleanliness are stressed. Civilian cooks oversee the inmate trainees who work in food preparation, and inmates supervised by correction officers serve the food. The inmates can be discharged if they receive poor evaluations during their kitchen duties. An average of 30 inspections are performed each week, some by outside agencies. Reports of the inspections are made and kept, and if a violation is noted, a written explanation about how the violation occurred and the corrective measures taken is required. Although not hired until after claimant's ingestion of the metal item, Ms. Brault testified that she reviewed the policies in place during April 1996, and they were the same as those contained in Exhibit 2. She searched for any violations of these policies and procedures for the month of April 1996 but found none.

The State moved for dismissal at the end of claimant's case and renewed the motion at the close of proof. That motion is now granted.

Claimant has failed to prove the source of the foreign object he ingested. As a result, claimant has not established negligence on the part of the State. There was no evidence that the State had notice of any prior incidents of foreign objects in the food or that the State created a dangerous condition by its food preparation methods or service. Instead, defendant has shown that the State exercised due care in its food preparation and service by its performance of regular inspections. (
See, McMoore v State of New York, (unpublished decision) Ct Cl., Sise, J., dated October 2, 2000, Claim No. 90481, [2000-028-0007].)[2] Nor is there a breach of an implied warranty that the food is fit for human consumption and contains no foreign or injurious substances. Since inmates do not purchase the food served at prison facilities, no implied warranty applies. (McMoore v State of New York, supra)
Because claimant is pro se, the Court has also considered the question of res ipsa loquitur as a basis for the State's negligence. To obtain the benefit of this doctrine claimant must show that: 1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff (
Dermatossian v NYC Transit Auth., 67 NY2d 219, 226). Establishing these elements permits an inference of negligence to be drawn. Claimant's proof fails to establish the second element, and therefore, cannot gain the inference of negligence. (See, e.g., Miller v National Bread Co., 247 App Div 88)
Therefore, the claim must be DISMISSED. All motions not heretofore decided are DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY.

May 21, 2002
Syracuse, New York

Judge of the Court of Claims

[1]The claim says April 28, 1996, but the medical records indicate the incident occurred on April 29, 1996.
[2]This Court of Claims Decision will be found at