After a bifurcated trial on liability, by decision dated September 22, 2003 and
filed with the Clerk of the Court on October 8, 2003, I found that the Defendant
was 70% liable for the injuries suffered by Claimant in a welding shop accident
while he was incarcerated at the Cape Vincent Correctional Facility. As in the
liability phase of this trial, Claimant was unable to attend the damages phase
because he had been deported to the island of Jamaica, his home. Consequently,
his deposition was again offered (Exhibit 3), as well as his medical records
(Exhibit 13), the report of inmate injury form (Exhibit 14), and four pages of
his supplemental bill of particulars (Exhibit 15). Defendant offered no
Briefly summarized, on July 29, 1996, the Claimant was injured when sheets of
sheet metal stacked against the side of a worktable where he was welding slid
out and struck him, causing him to fall to the ground. The metal sheets,
estimated to weigh some 450 pounds, then fell on his left leg, ankle and foot
causing him to suffer cuts, bruises and a nondisplaced fracture of the fifth
metatarsal on his left foot.
Claimant was taken to the infirmary immediately after the accident on July 29,
1996, where his cuts and abrasions were tended to. He was released that same
day and told to elevate his leg and foot, to apply ice to the injured area and
to wrap it with a four-inch "ace" bandage. He was given Advil for the pain and
swelling and placed on activity restriction for three days.
He returned to the infirmary on the following day (July 30, 1996) for a
followup. The medical records reveal that there was minimal swelling, that
Claimant was able to bear weight and no longer needed the "ace" wrap.
Additional doses of Advil were provided to him and no further orders were given
(Exhibit 13, p 50). Claimant was again seen in the infirmary at sick call on
August 1, 1996. The ambulatory health record reflects that he arrived by
wheelchair claiming that he was unable to walk. An examination revealed an
ecchymotic area on the left heel with some "slight swelling seen." He was
admitted to the infirmary that day (Exhibit 13, p 50) and remained there for the
next two days. The fracture was not diagnosed until x-rays were taken at an
outside facility on August 3, 1996, five days after the accident (Exhibit 13,
Progress Notes, p 7). The same progress notes reflect that on August 5, 1996,
there was no need for a cast (
at p 6).
There is a discrepancy between Claimant's deposition testimony and his medical
record regarding the length of his stay in the infirmary, but it appears that he
was confined to the infirmary from August 1, 1996 to August 7, 1996. According
to Claimant and his medical record, he was not permitted to return to any
program pending followup with the doctor on August 21. During this time
Claimant stated that he was in continuous pain, even though he was given both
Tylenol and Motrin to manage the discomfort.
Claimant was not allowed to return to the welding shop again, and when he was
cleared medically to return to vocational training, he elected to be trained in
masonry. He testified at the time of his deposition that he was unable to run,
play soccer or basketball because of the discomfort caused by the injury to the
toe on his left foot. He apparently did not have any discomfort when he walked.
He was able to ambulate without the use of either a cane or other support.
However, it should be noted that from the time Claimant entered into the
Department of Correctional Services system he was required to wear a brace on
his right foot when he wore sneakers. Apparently he suffered from a condition
diagnosed as "dropped foot" and needed the brace to walk when he wore sneakers,
but not when he wore boots. Apparently this condition did not affect his
ability to participate in athletic activities. This was a preexisting condition
prior to the accident which is the subject of the claim at bar.
As in the liability trial, the Claimant's proof was limited to his deposition
testimony taken on July 9, 1998, as well as his medical history while
incarcerated. From my review of his medical record, the last apparent complaint
he expressed regarding the injury was October 24, 1996, when it was noted that
he was still limping, but it is not clear to me whether that is attributable to
his left or right foot problem, since there is a reference to both in that note
(Exhibit 13, p 45).
There is no credible proof before me that the injury claimant suffered would
cause any future pain or suffering after the normal course of treatment for the
injuries he suffered. The fracture was not displaced and of a relatively small
bone in his left foot. The lacerations and contusions to his left leg left no
apparent scarring or limitation in the use of that limb. Furthermore, there is
absolutely no current medical information before me that leads me to conclude
that the injury was serious, even though it is clear that it was painful and
required an extended stay at the Cape Vincent Correctional Facility's infirmary.
It also required Claimant to use crutches and a cane for a short time.
Thus, weighing the proof in this record, I am constrained to limit my award to
past pain and suffering only. I have reviewed the cases cited by the State
limited to damages for similar type injuries, as well as other cases found in
researching the issues involved here.
After careful and full deliberation, I award the Claimant, for his past pain
and suffering, the gross sum of $5,250.00, less 30% attributable to his
comparative negligence, for a net award of $3,675.00. As noted above, I make no
award for future pain and suffering. Claimant is entitled to appropriate
interest from September 22, 2003, the date of my earlier liability decision
Love v State of New York
, 78 NY2d
All motions not heretofore decided are now denied. Let judgment be entered