New York State Court of Claims

New York State Court of Claims

ATKINSON v. THE STATE OF NEW YORK, #2004-013-508, Claim No. 96282


Synopsis


Damages awarded to Claimant for the negligence of the State in failing to provide him with a safe place to work.

Case Information

UID:
2004-013-508
Claimant(s):
NOEL ATKINSON
Claimant short name:
ATKINSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96282
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:

LEON GREENBERG, ESQ. and ADAM THOMPSON, ESQ.
BY: BERNARD B. SCHACHNE, ESQ.Trial Counsel
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: EDWARD F. McARDLE, ESQ.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 27, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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 exhibits.

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.[1]

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 (
id., 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 herein (
Love v State of New York, 78 NY2d 540).



All motions not heretofore decided are now denied. Let judgment be entered accordingly.

July 27, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]In the earlier decision on liability only, I incorrectly referenced his injury as a fracture of his left ankle. The instant description is derived from medical records now in evidence.