New York State Court of Claims

New York State Court of Claims

RUMLEY v. THE STATE OF NEW YORK, #2003-031-514, Claim No. 93170


Synopsis


Damages awarded to former inmate for permanent injuries, vision loss and facial disfigurement.

Case Information

UID:
2003-031-514
Claimant(s):
CLAY RUMLEY
Claimant short name:
RUMLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93170
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ROSENTHAL, SIEGEL, MUENKEL, & MALONEY, LLPBY: JOSEPH P. MUENKEL, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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 to me.

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 occurred.

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 way.

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 transcripts.

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 Claimant's accident.

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 mitigate.

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 suffering.

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 AD2d 122).

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.


June 10, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims