WHITE v. THE STATE OF NEW YORK, #2004-016-050, Claim No. 99085
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Kenneth S. Feraru, Esq.
Eliot Spitzer, Attorney GeneralBy: Paul F. Cagino, Esq.
August 23, 2004
See also (multicaptioned
This is the claim of Michael White, who alleges that on December 9, 1997, while
resting on his bed at Clinton Correctional Facility, a fluorescent light bulb
fell from his cell's light fixture, crashed on the sink, and caused a piece of
glass to enter his left eye. Claimant testified on his own behalf and defendant
called Correction Officer Robert Whitcomb.
White testified that on December 8, 1997, he was sent to a new cell at Clinton
Correctional Facility; he was moved because of a dispute with another inmate
that required them to be separated. He recalled that the correction officer who
took him to the new cell did not enter the cell, which he characterized as being
at variance with "statewide procedure." According to claimant, in the past, a
"cell frisk" had always been performed by a correction officer when he went into
a new cell. White described such procedure as "when the officer goes into the
cell and . . . [makes] sure that everything is operable and safe . . . [that]
there's nothing in there that can cause you harm [and that] there's no
contraband left behind from the previous inmate who occupied the cell."
Claimant added that after the cell frisk was completed, he would receive a "cell
frisk slip" to sign; such form was not given to him on December 8, 1997.
White recalled that after entering the cell, he "went right to bed." He
described what happened the next morning as follows:
I got up. Breakfast was served. I [ate] breakfast. I laid back down on
my bed. I grabbed a book, I turned a few pages, laid the book down, and I was
awakened by the sounds of drilling and - - sound of maintenance work . . . in
the back of the cells there's plumbing pipes . . . like banging and
Claimant resumed reading, and then he heard:
a loud popping sound . . . my impulse was to turn, and I just felt like a
stinging sensation and everything went black. I grabbed my face and I tried to
open my eyes and I felt like a sharp pain . . . and there was blood all in my
hands and . . . coming down on my shirt.
White explained that what had happened was that the light bulb had fallen from
the light fixture into the sink, which was next to his bed, about one-and-a-half
to two feet away. He maintained that the light fixture contained "just a naked
bulb" with no cover on it. He also testified that from the time he entered the
cell until the time of the accident, he had not touched the light fixture.
Claimant recalled two or three other cells where the light fixtures had no
covers, although he was not aware of any other incidents where light bulbs had
fallen out. He explained that he had not complained about the lack of a cover
because "there's some things you just don't . . . do . . . I was scared . . .
You just don't complain about certain things in prison."
White said that after the accident, he was "taken directly out of the cell . .
. I was escorted directly out, with my eyes closed." He was taken to the
infirmary, seen by a doctor, and "[t]he largest pieces [of glass] that they
could see, they removed," after putting numbing drops in his eye. Claimant then
went to an outside emergency room, where he was seen by an eye specialist. He
described what happened at the hospital as "very painful. They scraped –
they numbed the eye again, and they flipped the lid, and I remember them
scraping, trying to remove as much . . . as they could." According to claimant,
a five millimeter piece of glass was removed from his eye. He recalled that he
was given antibiotics and had the choice of having a butterfly stitch on the
inner eyelid or of letting the laceration heal by itself. Claimant said he
chose the latter option because the doctor said the stitch would be very
painful. He explained that instead of stitching, "medical tape" was applied and
he sat for half-an-hour to an hour until the bleeding stopped. He was told the
tape would dissolve and he was given solution with which to wash his eye.
The testimony differed as to what happened when claimant returned to Clinton
from the emergency room. Claimant maintained that he was ordered to return to
his cell and pack up his property, after which he was escorted to another
housing block, while defendant argued that claimant never returned to that cell,
but rather his property was inventoried, packed and moved for him to another
White said that he returned to the emergency room within the week – he
referred to both his eye swelling shut and to a "scratching burning sensation."
He was also sent to an ophthalmologist to whom he complained that his vision was
a "little foggy." Claimant recalled that he saw such doctor at least three
Claimant testified that prior to the accident, he had no problems with his
eyes, and did not wear glasses. According to White, he now wears glasses
because he is "experiencing difficulties reading or focusing on an object for an
extended period of time" and can only read without glasses "for a short period
of time." He added that if he reads for too long, he gets a headache, for
which he takes Tylenol "like vitamins."
As to the condition of his eye at the time of trial, claimant stated that in
the mornings, he needs to "apply a warm rag to separate my eyelids because of
the buildup over the night of fluids . . . I have to apply a warm compress . . .
[to] allow the crust . . . to soften to separate it with my fingers gently.
Then [I] flush [the eye] with a solution several times." Claimant added that he
also now has to use "A&D ointment" to prevent infection. Claimant must also
use artificial tear drops and was told that this would be required "indefinitely
because [of] something dealing with the tear ducts. . . . So I have to use the
artificial tears . . . several times a day." Finally, asked if he currently had
blurred vision, claimant said that if he looks directly ahead and focuses, "it's
like a fog." He characterized his eyesight as having deteriorated after the
* * *
Correction Officer Robert Whitcomb testified that he had been employed at
Clinton Correctional Facility for 20 years and was familiar with claimant's
housing unit, the E Block, where, as of the date of the accident, he had been
"First Officer" for about three years. He described his duties as First Officer
as being "in total charge of the Housing Unit . . . six to seven correctional
officers . . . report directly to me. I keep and maintain a count of 140
inmates at any given moment . . . I'm a clerical person. I do paperwork . . . I
can be a mechanic. I can pass out lunch. I do rounds. It's just a
multi-faceted position . . . I am basically responsible for all staff and
inmates" in the unit.
Whitcomb was familiar with claimant's accident, as he responded to the cell
that day and found claimant standing near his bed with his hand over his eye.
Claimant told Whitcomb that the light bulb had fallen into the sink and that
glass had gone into his eye. Whitcomb recalled that he asked claimant what he
had been doing and White said he had been lying on his bed. The officer said he
did not notice whether there was a cover on the light in claimant's cell.
As to the inspection of cells, Whitcomb testified that "[w]hen an inmate leaves
a cell, an officer goes in and inspects the cell to make sure everything is in
its proper place, toilet works, sink works, bed's there, mattress, light and
light cover is in its place." According to Whitcomb, if an inmate was to be
moved into a newly empty cell, he would not be moved in if the light cover was
missing. Contrary to claimant's assertion, Whitcomb testified that an inmate
who is about to occupy the cell is not present at the time the cell is prepared
for him. As to cell frisk slips, the officer stated that when an inmate is
already in a cell, a sergeant or a higher in rank can give an order that he
wants the cell frisked, in which case, the inmate is permitted to stand outside
while the cell is being frisked, and he is given a cell frisk form. Whitcomb
distinguished the cell frisk procedure from claimant's situation: "it was not a
cell frisk. It was just a general cell inspection upon . . . an occupant
leaving the cell."
With regard to light fixtures, Whitcomb stated that "the covers were to be on
the lights at all time[s] . . . We maintain a stock of covers. They do get
broken. They do become missing. We carry . . . [s]ecurity screws with security
screwdrivers to replace these things or if . . . they're removed, they're
reapplied to the light, and that's . . . Standard Operating Procedure." He
added that it took "[v]ery little effort . . . five minutes" to put a cover on a
Whitcomb also testified that inmates tamper with the light fixtures "[a]ll the
time. That's why we had all these extra supplies and the extra light covers .
. ." He explained that inmates darken the light covers by taking the screws off
the cover and removing it. "They'll take a Bic lighter, match, piece of toilet
paper, they'll run it inside the light so the . . . flame will collect on the
surface, the inside surface of this clear plastic cover. Once it's at their
degree of opaqueness, they'll reapply the cover, reapply the . . . two security
screws and they have less light, more comfortable." He also explained that
inmates are able to remove the screws with paper clips, and ballpoint pens,
"[a]nything that will fit in [the] little holes."
Whitcomb testified that there are also other inspections of the cells: the
Superintendent and Deputy of Security make a complete inspection of the block
on a weekly basis and correction officers make daily inspections of their
companies. "A company officer would go down their companies repeatedly during
the day checking cells for – for everything. Sick inmates, broke[n]
equipment, checking cell gates to make sure that they're secure. Just many,
many things we do daily." According to Whitcomb, such inspections included
checking the covers on the lights. Finally, according to Whitcomb, there was no
"construction, drilling or banging" on December 9, 1997.
* * *
Claimant must prove by a fair preponderance of the credible evidence that
defendant was negligent and that defendant's negligence was a substantial factor
in causing his accident,
, proximately caused the accident. See PJI 1:23; 1:60 and
It was not established at trial how or why the light bulb fell from the
, whether it exploded, was loose or for some other reason. While
claimant implied that banging and drilling caused the accident, defendant denied
that any such activity occurred and I find that claimant offered insufficient
evidence to prove that such was the cause of the accident.
With regard to whether the fixture had a cover, as set forth above, claimant
testified that it did not, characterizing it as
a "naked bulb." Correction Officer Whitcomb, however, testified that when a
cell was being prepared for a new inmate, it would be checked for a light cover
and an inmate would not be placed in a cell without a light cover. In any
event, even if it were assumed that the fixture lacked a cover, there was no
evidence presented as to the purpose of a cover (e.g.
, diffusion of light
or some safety purpose) or whether a cover would have prevented the accident.
For instance, claimant's exhibit 3 photograph appears to show an opening on the
side of the cover.
Claimant points to the doctrine of
res ipsa loquitur
, which permits, but does not require, the trier of fact
to infer negligence from the prevailing circumstances. The elements of such
doctrine are: (1) the event must be of a kind that ordinarily does not occur in
the absence of negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; and (3) it must
not have been caused by any voluntary action or contribution on the part of the
claimant. See Kambat v St. Francis Hospital
, 89 NY2d 489, 494, 655 NYS2d
844, 846 (1997).
I cannot find that a light bulb falling from a fixture is the kind of event
that ordinarily does not occur unless there was negligence. There was no
evidence of any prior similar accidents, and no evidence of any prior complaints
about loose bulbs or missing covers, even assuming claimant's theory of the
Moreover, the light fixture was not in the exclusive control of the defendant;
claimant entered the cell the day before the accident and clearly had access to
the fixture and bulb(s) as did other inmates occupying the cell before claimant.
, claimant's exhibits 2 and 4. In short, the doctrine of res
does not apply in this case.
For the foregoing reasons, claimant has failed to prove that defendant was
negligent and that any such negligence proximately caused his accident. Claim
no. 99085 is thus dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
August 23, 2004
HON. ALAN C. MARIN
Judge of the Court of Claims