New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2003-034-015, Claim No. 106606


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:
New York State Attorney General
BY: Reynolds E. Hahn, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 26, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant commenced this action on September 10, 2002, alleging negligence by Defendant in connection with an injury he sustained when he fell from an upper bunk in his cell at Attica Correctional Facility ("Attica"). A trial to determine liability and damages was held on October 28, 2003. After hearing from Claimant and a defense witness, Barbara Frisby, and upon the review of two exhibits moved into evidence by Claimant and four exhibits moved into evidence by Defendant, the Court now finds as follows.

The facts of this case are largely undisputed. Claimant suffered a gunshot wound to his left leg during the summer of 2000. He initially underwent surgery to repair a shattered tibia, including an intramedullary rod placement, and later, in December of 2000, required further surgery to repair broken screws and remove a remaining bullet fragment. As a result of the injury, Claimant walked with a cane and leg brace, a requirement that continued through the time of the incident.

At some point in and about 2001 Claimant became incarcerated. While confined to Sing Sing Correctional Facility, he received a "bottom bunk" permit. He continued to be assigned a lower bunk after being moved to Lakeview Correctional Facility. Thereafter, on July 3, 2002, Claimant was transferred to Attica. The next day he was assessed for double-cell suitability pursuant to 7 NYCRR 1701.5 (c) (6) (i), and approved for a ‘bottom bunk only' cell assignment. From July 3, 2002 until July 7, 2002, Claimant was housed in a single occupancy cell. He was then moved to a double occupancy cell and assigned the bottom bunk. On July 26, 2002, Claimant was transferred to yet another double occupancy cell, but assigned to the upper bunk. He complained to the D-4 Housing Unit Officer G. La Venture, who agreed to report the matter to the attention of the cell hall captain. Claimant was advised that while the matter was being investigated he would need to remain assigned to his upper bunk.

Claimant testified that as a result of his disability he experienced difficulty climbing to and from the upper bunk. He noted that the bunk lacked a ladder for access to his upper bunk, and he was required to use the end rails to ascend and descend. On August 8, 2002, as Claimant attempted to climb down from the upper bunk, his right foot became caught in the cell door bars, causing him to lose his balance and drop toward the floor. As he did, he first landed on his left leg, then struck a locker before falling to the floor itself. Another inmate called for assistance, and Claimant was taken by stretcher to the prison infirmary. He remained at the infirmary for several hours, where he was x-rayed and examined by a physician before being returned to his cell in a wheel chair.

Regarding injury, Claimant testified that he experienced a significant increase in pain in his lower left leg following the fall. That aggravation of his earlier condition continued until August or September of 2003, when he underwent a third surgery to "repair the bent screws" he purportedly sustained in his fall. As a result of the accident Claimant also experienced pain in his left knee and hip, as well as his back, all of which appear to have diminished with time. Although he introduced medical records into evidence, Claimant did not produce expert testimony to support his claim that screws in his leg had become damaged, or otherwise provide a causal link between the accident and the need for surgery in the late summer of 2003.

The only witness presented by Defendant was Barbara Frisby, a nurse-administrator at Attica who had reviewed Claimant's records but had never treated him. She acknowledged that the issuance of a bottom bunk permit would indicate that an inmate was found to have had a medical condition that required such an assignment. The witness conceded that Claimant should not have been assigned an upper bunk based on his medical assessment, an admission consistent with the findings of G.D. Struebel, Inmate Grievance Process Supervisor, in a decision dated August 28, 2002 (Defendant's Exhibit A). Ms. Frisby also noted that Claimant's treatment records do not reflect any complaint to the medical staff regarding his assignment to an upper bunk.

The State is not an insurer of the safety of inmates in its correctional facilities (
Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495). However, the State has a duty to use reasonable care to provide for the health and care of prisoners (see Ogle v State of New York, 191 AD2d 878; Matter of Farace v State of New York, 176 AD2d 1228; Larkin v State of New York, 84 AD2d 438). In determining that Defendant breached that duty the Court has considered that the Defendant failed to follow a determination made pursuant to a regulation established to "protect their [inmates'] physical and mental well-being" (9 NYCRR 7651.1). Here, pursuant to 9 NYCRR 7651.9 (a) (1), the medical staff at Attica conducted a mandatory health assessment following Claimant's transfer, in part to determine his suitability for double-cell occupancy. Among the factors considered in that assessment was his medical screening (7 NYCRR 1701.5 [c] [6]), specifically, "the existence of a medical condition that would preclude double-cell housing, require placement in a bottom bunk [emphasis added]...". In this case, the medical staff at Attica made a determination that Claimant's medical condition necessitated his assignment to a lower bunk, and the failure of that facility to follow that placement constituted negligence. Moreover, even if the question had not been addressed pursuant to a regulation, Defendant was negligent in expecting that an inmate who required a cane and leg brace to even walk could safely climb up and down the rails of a bunk bed.
Regarding causation, Defendant noted at trial that Claimant fell after his uninjured right leg became caught in his cell door bars, whereas the bottom bunk permit related to the condition of his left leg. However, there can be more than one proximate cause of an occurrence (
see Galioto v Lakeside Hosp., 123 AD2d 421, 422 [to recover plaintiff not required to show that defendant's negligence was sole cause of injury]). In the Court's view Claimant has met his burden, if for no other reason than that his exposure to any form of height-related risk, and corresponding need to place his weight solely upon his weakened leg, were factors in his injury even if that leg had not become entangled in the cell door bar.
Claimant testified believably with regard to his pain and discomfort. He did not, however, present medical opinion evidence, and for that reason the Court cannot consider any award for his Claim that screws in his leg became bent in his fall, and that he required surgery to repair that injury. Such issues of injury and causation are not matters of common knowledge which a fact finder could decide in the absence of expert testimony, and the Court cannot ignore Claimant's burden to present legally competent evidence that extends to expert opinion by reason of his pro se representation or inmate status (
see Duffen v State of New York, 245 AD2d 653-654). In contrast, expert medical testimony is not required to weigh Claimant's reports that he experienced pain in various parts of his body as a result of the fall. A lay person is competent to testify to his own past and present medical condition, without need for expert testimony (Vincent- Wilday, Inc. v Strait, 273 App Div 1054, 1055). So also, a fact finder can consider a causal relationship between an act of negligence and a result without an expert if that claimed result is within the experience and observation of an ordinary layman (Mitchell v Coca-Cola Bottling Co., 11 AD2d 579). Here the Court accepts Claimant's report of increased pain in his left leg that lasted from the time of the incident until his surgery in and about August 2003, which he characterized as substantial. The Court also accepts that as a result of his fall Claimant sustained pain to his left knee, hip, and back, with those injuries being of brief duration. On that basis the Court will make an award for past pain and suffering in the sum of $3,500.00. To the extent that
Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

November 26, 2003
Buffalo, New York

Judge of the Court of Claims