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
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.
. 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
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
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
., 99 AD2d 246, 249 (1st Dept 1984), affd
, 64 NY2d 670
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 . . .
)." Gordon v American Museum of Natural History
, 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
Accordingly, the Court awards Claimant damages for past pain and suffering in
the amount of $200.00.
Let judgment be entered accordingly.