New York State Court of Claims

New York State Court of Claims

HERMAN v. THE STATE OF NEW YORK, #2004-016-061, Claim No. 106343


Claim alleging that inmate fell from upper bunk after being improperly placed there was dismissed.

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):

Alan C. Marin
Claimant's attorney:
Jorge Herman
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mary B. Kavaney, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 4, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Jorge Herman, which was held at Mid-Orange Correctional Facility. In his claim, Mr. Herman alleges that after being improperly assigned to a top bunk at Mid-Orange, he was injured when he fell from the bunk while sleeping on February 20, 2002. At trial, claimant testified on his own behalf with Correction Officer Soto acting as a Spanish-English interpreter. Defendant called no witnesses.

Claimant testified that on January 30, 2002 he was transferred from Fishkill Correctional Facility to Mid-Orange and upon arrival, was assigned the upper bunk of a bed in a dormitory room housing four inmates. On February 20, 2002, while sleeping, he fell from the bunk at approximately 11:30 pm. Claimant recalled that following his fall, he felt pain in his legs, back and face and was taken to an outside hospital for treatment. He maintained that as of the date of the trial, he continues to have problems with his legs and back and uses a cane - - which he did not use before the accident.

Claimant testified that the bunk did not have any guardrails, although he conceded that no other upper bunks had such rails.

Asked on cross-examination whether he had ever notified anyone that he was "in fear" in a top bunk, he stated that he had told an officer in the housing unit as well as someone in the medical department, but he did not recall their names.
* * *
Claimant submitted no evidence that any Department of Correctional Services ("DOCS") policies and procedures were violated in assigning him to a top bunk. In that regard, see defendant's exhibit A, DOCS Policy number 1.49, entitled "Lower Bunk Placement," which provides in relevant part as follows:
New York State Department of Correctional Services recognizes the existence of medical criteria for lower bunk placement.

. . .

  1. Inmates requesting placement in a lower bunk must meet or have one of the following clinical criteria:
- On medication of a seizure disorder
- Diabetes/insulin dependent

- Age over 60 years

- Weight over 300 pounds

- Documented back problems through physician review and approval . . .

- Permanent physical disability (e.g., amputee, rheumatoid arthritis)

- Diagnosis of sleep apnea

  1. In addition inmates may be considered for the following temporary reasons:
- Acute injury or serious medical conditions (i.e. fractures, recent MI, advanced arthritis)

. . .

Claimant conceded at trial that he suffered from none of the conditions set forth in such policy, insisting that prior to his accident, his only medical problem had been high blood pressure - - a condition not set forth as a criterion for lower bunk placement.
Nor has he shown, by a preponderance of the evidence, any other negligence by defendant in connection with his accident. In view of the foregoing, claim no. 106343 is dismissed.

October 4, 2004
New York, New York

Judge of the Court of Claims