New York State Court of Claims

New York State Court of Claims

FRANCO v. STATE OF NEW YORK, #2002-018-157, Claim No. 105230


Claim dismissed after trial; claimant failed to establish a prima facie case.

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: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from defendant for an injury he suffered when he fell trying to get out of a top bunk bed at Riverview Correctional Facility (hereinafter Riverview) on October 2, 2001.[1]
Claimant testified that on the day in question he was assigned to the top bunk in Cube 32 of B-1 Dorm. At approximately 1:00 a.m., on October 2, 2001, claimant attempted to climb down from his bunk bed by placing his right leg on a chair near the bed. Claimant testified that only his toes reached the edge of the chair, and when he attempted to place his full weight on the chair, he slipped off the chair. Claimant's right knee and the left side of his face made contact with the floor, and his left arm struck the back of the chair. Another inmate in the area helped claimant by notifying the guard on duty; and when the guard did not come, he took claimant to the guard. Claimant was then sent to the infirmary where he was examined by a nurse. Claimant's toe was bleeding, and he was complaining of pain in his right knee which had become red and swollen. He also complained of pain in his upper left arm. Claimant was prescribed medication for the pain and swelling and then returned to his dorm.
Upon returning to his cube, claimant indicated he could not climb back into his bunk, and told the guard he would sleep in the chair. Claimant was returned to the infirmary later on October 2, again with pain and swelling in his right knee. He was treated and provided additional medication and remained in the infirmary until October 10, 2001. According to the medical records, upon his release from the infirmary, claimant was given an ace bandage and assigned to a bottom bunk for two weeks. His activities were also restricted for one week following his discharge. Claimant testified that he attended his work program the following day, October 11, 2001, but began to feel dizzy and weak. Claimant, with the assistance of two fellow inmates, then returned to the infirmary. The medical records support the fact that he was readmitted to the infirmary on October 11, and later discharged on October 15. Claimant's knee was x-rayed during that period, and upon his discharge he was given a cane for two weeks. Claimant testified that he continues to have pain in his back and knee, and does not think that the facility is responding adequately to his injury.

On cross-examination, claimant admitted that he had none of the clinical criteria which requires lower bunk placement pursuant to the Department of Correctional Services Policy 1.49 which lists (1) on medication for a seizure disorder, (2) diabetes/insulin dependent, (3) age over 60 years, (4) weight over 300 pounds, (5) documented back problems through physician review and approval, (6) permanent physical disability, and (7) diagnosis of sleep apnea.[2]
Claimant also acknowledged that he had been assigned to the top bunk approximately 45 days before this accident, and he had always gone to bed and arisen without difficulty. Prior to this accident, he had been assigned to the top bunk in a different dorm, where he had no problems.
The State called the Riverview Correctional Facility Fire and Safety Officer, Tim Thompson, who took pictures of an officer climbing in and out of the top bunk of a cube. The pictures showed the way most inmates climb in and out of a top bunk bed, usually by climbing to the top of a large locker from a chair and back down. The Nurse Administrator, Tom Hunter, was also called on behalf of the defendant. Mr. Hunter had reviewed claimant's medical records and indicated that, prior to this incident, there was no reason to assign claimant a bottom bunk.

It is well-settled law that the State is not an insurer of inmate safety (
Hirsh v State of New York, 8 NY2d 125). However, the State does owe a duty to inmates to protect them from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342; Casella v State of New York, 121 AD2d 495). The risk of injury rests on the degree of notice afforded (Mitchell v State of New York, Ct. Cl., J. Fitzpatrick, filed October 5, 2000, Claim No. 96998). In this case, the State had no notice that claimant had any trouble ascending to or descending from the upper bunk prior to his fall. The claimant was assigned an upper bunk bed at another facility; and yet, never disputed his assignment to the top bunk at Riverview until after his injury. For 45 days prior to October 2, claimant accessed his upper bunk without incident. Claimant has failed to show that he met any of the criteria that would require a lower bunk assignment or that the State violated any policy or regulation by assigning claimant to the upper bunk (Taylor v State of New York, Ct Cl, unpublished decision J. Collins, filed April 28, 1998, Claim No. 92111).
At the close of claimant's proof, defendant made a motion to dismiss for failure to establish a prima facie case. Based upon the evidence, the Court now finds that the claimant has failed to establish negligence on the part of the State of New York and grants defendant's motion.


August 6, 2002
Syracuse, New York

Judge of the Court of Claims

[1]The claim indicated that the date of the incident was October 1, 2001; however, after the trial the Court conformed the pleadings to the proof reflecting the actual date to be October 2, 2001.(CPLR 3025(c))
[2]See State's Exhibit A.