On March 2, 1994 at Wende Correctional Facility (Wende), Claimant Clay Rumley,
an inmate at the time, was seriously injured while repairing a forklift tire.
Retired Court of Claims Judge John P. Lane held a trial on liability only and in
a decision filed May 7, 1999, determined that liability for Claimant's injuries
be apportioned 60% to the State and 40% to Claimant. I held a trial on damages
only on December 16 and December 18, 2002.
At the time of the trial, Claimant was 33 years old and resided in Yonkers, New
York, with his young son. He stated he was employed on an "on call" basis,
working on cars and being paid on a scale according to the task performed. For
example, he is paid $50.00 per car to install a car alarm system and $40.00 per
car to install a stereo system. Claimant stated he works three to four days
each week under this arrangement and makes approximately $150 per day. The work
he does requires him to be under the dashboards of the cars and, sometimes,
underneath the car itself. He now wears protective goggles when he engages in
such tasks. Claimant had been employed in this manner for the four months
preceding the trial. Prior to this, in 2001, he was employed as a car porter.
He was also "on call" for this job and his responsibilities included cleaning
and preparing cars for delivery to new owners. Claimant also performed other
tasks related to automobiles, including "detailing," diagnostic checks, scanning
car computers for problems, and making mechanical repairs. Claimant testified
that he has not been able to acquire a job that would put him on a payroll
because he requires too many days off due to pain caused by his injuries.
Claimant had completed the 10th grade prior to his incarceration and earned his
GED while in the prison system. He has had no further education.
At the time of the accident, Claimant was working at the Wende garage. While
attempting to repair a flat tire on a fork lift, the tire exploded and the metal
rim was propelled into the right side of his face. Claimant indicated that the
rim hit him around the eye and orbit area. The impact knocked Claimant
unconscious and when he woke up, he was in the Erie County Medical Center
(ECMC). Claimant was wearing prescription glasses at the time of the accident.
He stated that he experienced pain on the right side of his face, specifically
in the area of his forehead, inside his eye, his cheek, the side of his nose and
the eyeball. Further, he stated that there was "lots of blood on the side of
his face" when he woke up.
Mr. Rumley did not see his face until the day after the accident, and when he
did, it was greatly discolored and swollen. He was unable to see out of his
right eye at the time as it was swollen shut. Claimant believes his eyelid was
"ripped open" during the accident. He stated he had surgery approximately three
to five days after the accident. Prior to the surgery, glass had to be removed
from his face and eyeball.
The surgery Claimant underwent involved the insertion of plates and wires at
certain points in his skull to repair the broken bones around his eye. The
plates and wires remain in Claimant's face. Claimant demonstrated to the Court
that he has a noticeable scar on the top of his forehead; other scars on his
face were not as noticeable, but the skin color was slightly darker in the areas
he indicated. Claimant's right eye is set farther back than his left eye and
the right side of his face is slightly lower and wider than the left side of his
face. Even with Claimant's beard and mustache, the lack of symmetry was obvious
Claimant testified that, after the surgery and during the several weeks he was
hospitalized, he had "no feeling" in the right side of his face. He stated that
the areas under and above his right eye felt "different" and that it "doesn't
feel the same as on the other side." Claimant stated he suffers from a
throbbing pain on the right side of his face when it becomes cold outside or
when he is under stress. At the time of his testimony, he reported that he was
feeling pain in his cheek and on the top of his forehead. Typically, he takes
an over-the-counter pain reliever such as Motrin or Advil, almost daily.
Claimant stated that, with regard to pain, he has an easier time in the summer,
but that he cannot stay outside too long before his face begins to hurt. He
described the pain as throbbing or pulsating and that a bout can last as long as
three days, despite taking pain relievers.
He testified that he also experiences pain in his eyeball at times. He
described this pain as occurring in the center of his eyeball and said it and it
feels like "sticking a knife in it." As of the time Claimant testified, the
last time this had happened was several weeks before the trial and it lasted a
couple of days. Claimant state that, when this happens, he stays in the house
and takes the pain medications described above. He believes the pain is
triggered by sunlight as he has always been outside when this has
Regarding his eyelid, Claimant wore an eyepatch for a time after the accident
because the eyelid would not open, and then he continued to wear it for several
years thereafter because the light bothered him. He testified that he no longer
wears an eyepatch because his eye seems to have "adapted." Claimant stated
that, although he can open his eyelid today, he cannot open it all the
Claimant stated he also experiences pain in the gum area of his mouth and that
his top teeth hurt when he has pain in his cheek. Claimant stated he feels
dizzy when he experiences the pain described above, or when he exerts himself.
He no longer plays sports; he cannot run because he loses his balance. He has
not had a driver license since 1995. Claimant stated he will not reapply for a
license because he is afraid he will hurt someone if he were to attempt to
drive. Claimant does have a prescription for eyeglasses, but he has not filled
the prescription because he stated he cannot afford to pay for them.
Claimant admitted that he did wear an eyepatch prior to this accident, in 1993,
while incarcerated at Rikers Island. I heard no evidence of injury to the eye
or face other than an allegation that he was "jumped" by officers while
incarcerated there. His medical record contains numerous complaints about
subjective vision loss and pain; however, there is no documented evidence that
he actually suffered an injury. Claimant stated at trial that he lied about his
eye to persuade prison officials to transfer him to another facility. I noted
that, during his testimony, Claimant had no trouble reading his deposition
The surgeon that supervised Claimant's surgery at ECMC testified regarding the
injuries to Claimant's orbital area. I found his testimony credible.
Specifically, the doctor stated Claimant had a fractured right cheekbone, a
fractured upper right jaw, multiple fractures to the floor of the orbit and the
medial wall. He stated that these types of injuries were consistent with
In addition to the fractures, the doctor's review of the x-rays taken before
and after surgery led him to conclude that Claimant's sinuses had, in effect,
collapsed. It was also evident that the eyeball had been displaced and that
foreign objects were lodged in the soft tissue. The infraorbital nerve was
also likely to have been damaged. This is the nerve that provides feeling in
the cheek, the upper teeth and the nasal area.
Claimant was admitted to ECMC on March 2, 1994 and discharged on March 15,
1994. Surgery was necessary to repair the damage. The plan was to perform
"open reduction" where, once the swelling subsides, the tissue is opened to
permit access to the bones. The surgery was performed on March 9, 1994. A
five-hole titanium plate was placed above the eye and then screwed into the
fractured bones. An eight-hole plate with six screws was placed below the eye.
These plates were referred to as "low profile," meaning they were thinner and
made for lighter use in areas where muscle tissue would not be pulling on them.
The surgery also opened up some of Claimant's collapsed sinus cavities.
The doctor observed Claimant in the courtroom, noting that the right sight of
his face is fuller than the left side and that his eyeball is recessed. If
Claimant's eyes do not look level, it is because of this recession. Claimant
also appeared to have some limitation of his lateral gaze. In the doctor's
opinion, nothing surgical or medical could be done, or should be done, for
aesthetic purposes. The plates will remain in Claimant's face. The plates
could cause pain related to changes in the weather, but it is more likely than
not that the pain Claimant has testified to is related to the damage to his
sinuses. There was nothing in this witness's testimony that is in opposition to
Claimant's description of the pain and sensations in his face that he felt both
before and after the operation.
I note that Claimant has made no claim for past, present, or future medical
expenses. Nor has Claimant offered proof of damages for lost income or future
loss of earning capacity. Thus, I am left with the task of ascribing a dollar
value to Claimant's past conscious pain and suffering from the date of the
accident through the date of the damages trial, as well as future damages for
pain and suffering.
I heard no testimony and received no evidence that contradicts Claimant's
subjective description of the pain he suffered both before and after the
operation. Nor do I find any reason to discredit his description of the pain he
continues to endure to this day. Additionally, by the end of the trial, it had
become clear to me that the facial disfigurement I observed, along with the
facial plates, were permanent conditions that further surgery would not
Claimant also offered proof of permanent loss of visual acuity. Claimant's and
Defendant's expert witnesses, both of whom were ophthalmologists, opined that
Claimant did experience a loss of vision as a direct result of the accident. I
found both witnesses credible. Both witnesses testified to the difficulty in
acquiring cooperation from Claimant during their exams and, therefore, performed
their tests with that in mind. As a result, both witnesses were confident in
the results of their physical examinations. In fact, the resulting loss of
visual acuity, as expressed by both witnesses, was only two percentage points
apart. Claimant's expert opined that Claimant had experienced a permanent 5%
loss of total body function due to the eye injury. Defendant's expert opined
that Claimant had experienced a permanent 3% loss of total body function. I
find that Claimant has suffered a 4% permanent loss of total body function. I
believe this figure is appropriate, given that both expert witnesses agree, and
I find that Claimant 1) is not legally blind; 2) is eligible for a driver
license; and 3) can achieve a corrected vision of 20/300. In addition, I find
no proof as to a medical certainty that the incident in 1993 on Rikers Island
had any impact on Claimant's visual acuity.
Finally, both witnesses agreed that Claimant has a permanent scar on his retina
as a result of the accident. Claimant's expert was the only one to conduct a
peripheral vision exam and those results were relied upon by Defendant's
witness. She opined that the test results indicated that the scar tissues on
the eye have contributed to a permanent peripheral vision problem and have
impacted and will continue to impact Claimant's astigmatism for the worse.
The difficult task for me is to ascribe dollar values to pain, as subjectively
experienced and described by Claimant, as well as to the above described
disfigurement of Claimant's face and Claimant's physical limitations resulting
from the accident. However, I must determine reasonable compensation for
Claimant for the conscious pain and suffering he has endured from the date of
the accident on March 2, 1994 through and including the date of the conclusion
of the trial on damages on December 18, 2002. Additionally, I take judicial
notice that Claimant has a life expectancy of approximately 43 years (PJI), and
I must also compensate him for his reasonable future damages for pain and
In making this award, I find that the physical pain Claimant suffered was far
greater in the initial months and years after the accident, though it is
uncontested that he will continue to have pain resulting from this accident for
the rest of his life. I award Claimant the amount of $316,500.00 for his past
pain and suffering. For Claimant's life expectancy of 43 years, I award him the
sum of $9,500.00 per year for a total of $408,500.00 for his future pain and
suffering. Claimant's total damages of $725,000.00, reduced by his 40%
proportionate share, is $189,900.00 for past pain and suffering and $245,100.00
for future pain and suffering, for a total award to Claimant of $435,000.00.
Claimant is entitled to interest from April 20, 1999, the date of the liability
decision herein (Love v State of New York, 78 NY2d 540) at the rate of 9%
per annum (see Auer v State of New York, 185 Misc 2d 254, mod 283
All motions not heretofore ruled upon are now denied. Any and all motions on
which the Court may have previously reserved are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.