New York State Court of Claims

New York State Court of Claims

MARSH v. THE STATE OF NEW YORK , #2005-030-004, Claim No. 106807


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:
Third-party defendant's attorney:

Signature date:
March 21, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Tyrone Marsh, the Claimant herein, alleges in Claim Number 106807 that Defendant's agents negligently allowed a dangerous condition to exist in his cell causing him physical injury while he was incarcerated at Green Haven Correction facility (hereafter Green Haven). Trial of the matter was held at Sing Sing Correctional Facility on February 25, 2005.

Claimant testified that when he first entered his assigned double-bunk cell on August 5, 2002 he noticed that a fan on the wall was damaged and "hanging down . . . not all the way down but it was hanging on its wires."[1]
He described it as a "big metal fan, . . . almost like a floor fan that had its leg taken off, and was bolted onto the wall" and indicated that he and his cellmate made complaints about the fan repeatedly because it wasn't working, commencing on August 5, 2002. Claimant ultimately filed a grievance on August 19, 2002, about the fan being broken, and included other complaints about the condition of the cell, including a request for some type of clothes "storage container" and a lamp.
On August 20, 2002 at approximately 1:00 a.m. Claimant was seated on the toilet, when the fan "came down off the wall and hit . . . [him] in the head." Claimant was "out of it." His cellmate called out for help, but when the officer came Claimant had "woken up . . . About 20 minutes later, the nurse came with a stretcher and took . . . [him] to the hospital." His wound was cleaned and bandaged by medical personnel. The following day, he was examined by a doctor, and given two stitches.
Thereafter, he was returned to his cell. Claimant said that "after it happened, they came and put in a brand new fan."
Claimant submitted a copy of the grievance he'd filed, some related documents, as well as a New York State Department of Correctional Services (DOCS) Directive Number 4003, requiring, among other things, that double-bunk cells be furnished with ". . . one electric fan (plastic casing and blades) . . . ," and part of his ambulatory health record (hereafter AHR). [Exhibit 1]. Logbook entries confirm that the claimant called out for help at the time he said he did, complained that the fan fell on his head, and showed the correction officer the cut on his head.
[Ibid]. The portions of the AHR submitted are dated June 23, 2004 and July 22, 2004; and include a neurological consultation dated December 16, 2002 regarding complaints of headaches: headaches he testified were caused by the accident. [Ibid]. He also indicated he was now having seizures, although he had never had them before, and was taking medication for same.
Photographs depicting the injury to Claimant's head were also admitted, [Exhibit 2], and confirm a cut of some indeterminate depth approximately one inch long.

On cross-examination, Claimant agreed that the only thing that the grievance mentioned about the fan was that it did not work; there is no mention that it was in a perilous or dangerous condition.

The Court notes that in the investigative report accompanying claimant's portion of the grievance, dated August 21, 2002, it is noted among other things, that "lights and fan are being addressed." [Exhibit 1]. The Court further notes that the grievance resolution form signed by the Superintendent's designee on September 16, 2002, and noting the grievance filing date as August 20, 2002, indicates that the fan has been "repaired."

No other witnesses testified and no other evidence was submitted.

Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." [
Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st Dept 1984), affd, 64 NY2d 670 (1984). With respect to constructive notice, any ". . . defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra, at 837.
Based upon his uncontradicted, credible testimony, Claimant has established that the Defendant was aware of the defective metal fan for three weeks, and thus had actual notice of the dangerous condition, and failed to act reasonably to cure the defect although it had opportunity to do so. Additionally, the violation of the DOCS directive requiring that plastic fans be used provides another basis for liability. It is also established that the failure to replace the fan is a proximate cause of Claimant's injuries.

With respect to damages, however, no evidence was admitted to show the extent of Claimant's injuries beyond his own testimony. As noted, the Court does find that testimony credible, but it is inherently limited. Although Claimant indicated he had suffered pain at the time of the accident, and suspects that headaches and seizures he suffers from today may be related to the blow to his head, no expert testimony was offered to connect present complaints of pain to the accident.

Accordingly, the Court awards Claimant damages for past pain and suffering in the amount of $200.00.

Let judgment be entered accordingly.

March 21, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.