New York State Court of Claims

New York State Court of Claims

LOZADA v. THE STATE OF NEW YORK, #2005-030-041, Claim No. 108730


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:
December 13, 2005
White Plains

Official citation:

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See also (multicaptioned case)

Carlos Lozada alleges in Claim Number 108730 that Defendant's agents at Sing Sing Correctional Facility (hereafter Sing Sing) allowed a dangerous condition to exist in the handball court of the A-Block yard at Sing Sing, namely a protruding razor wire in the fence around the area, against which Claimant fell and suffered injury. A unified trial of the matter was held at Sing Sing on October 28, 2005.

Claimant testified that on September 6, 2003 he was playing handball in the A-Block yard at Sing Sing. As he was chasing the ball, he lost his balance and fell into the chain-link fence surrounding the area, sliding down to the ground against the fence. When he got back up, he realized that he had a cut on the right side of his face and the back of his neck. He then realized that there was barbed wire or razor wire fastened to the fence about two to three feet off the ground. He said he felt fortunate that he "only got cut so much, because the needle of the razor wire itself is more than an inch in length."[1]

Photographs of Claimant taken at the time show a scratch along his right cheek, and underneath his right earlobe. [Exhibits 1-A and 1-B].[2]
Photographs of the fence show a tall, chain-link fence, with large coils of barbed wire along one side of the lower portion of the fence. [Exhibit 1-A]. While it appears to have been intended - based upon the placement of the coils - that the barbed-wire coils would remain on the outside portion of the fence, there are a considerable number of protrusions of portions of the barbed-wire coils onto the inside portion of the fence abutting the recreation area.
Claimant filed a grievance, that was forwarded to the Superintendent for "action" by the Inmate Grievance Resolution Committee. [Exhibit 1-C]. As noted in the Superintendent's determination, Mr. Lozada claimed that he was "cut due to the razor wire in A-Block yard." [Exhibit 1-E]. The grievance was "accepted as stated" and action was noted as having been taken. [
On cross-examination Claimant admitted that he regularly played many sports in the recreation yard, including handball and basketball, and worked out in the weight area as well. He called handball an "aggressive game." There are four (4) handball courts, he said, and it is all fenced in. He had never seen the barbed wire before, although he conceded that it was noticeable - he had "just never paid it any attention." He also agreed that during prior games he had certainly missed a ball, and gone chasing after it off the court. He had even gone into the fence before, but he had fallen against other portions of the fence with other portions of his body.

Claimant said that although other people had been hurt against the fence prior to September 6, 2003, they did not report such incidents, and he himself only learned about other incidents after his own accident. After further questioning, he qualified his statement concerning noticing the barbed wire by saying he had never noticed that it protruded through the fence onto the recreational side of the fence. He explained that he had noticed the barbed wire attached to the fence, but it had not registered that it was protruding through to the recreational side.

Dr. John Perilli, Medical Director at Sing Sing, testified concerning Claimant's injuries. The entry for September 6, 2003 in Claimant's ambulatory health record (hereafter AHR) indicates, Dr. Perilli testified, that Claimant came to the emergency room at the facility, and was evaluated by Nurse Barrett. Her notes indicate that Claimant said that he "cut his face sliding into a fence . . ." Dr. Perilli said that "the nurse noted a 5 centimeter long [lesion] . . . with minimal bleeding, thinness, a more superficial scratch behind the right ear, no active bleeding, no other evidence for injuries. The inmate was oriented. The scratches were cleansed with standard preparations, and covered. The inmate was advised to keep them clean and dry and covered. He was told to report any signs or symptoms of infection, personnel checked his Tetanus status, and he was given two vats or tubes of bacitracin."

Follow-up visits are noted in the AHR on September 15, 2003 and September 23, 2003. Mr. Lozada was seen by Physician's Assistant Williams (hereafter PA Williams) on those occasions. In the September 15, 2003 entry, PA Williams noted only "superficial cut right cheek." In the September 23, 2003 AHR entry PA Williams noted that there was a scar, and that the lesion had healed. According to the Claimant's medical record, there was no further follow-up.

"Medically", Dr. Perilli said "the injury was very superficial." The fact that it did not need stitching is indicative of its superficiality in medical terms; it was not very deep. "5 centimeters is about 2 inches. Not a major injury, and it healed."

On cross-examination, Dr. Perilli agreed that it left a scar, but also pointed out that "any open lesion of any length may leave a scar when it heals. A scar is the way the body joins things together."

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. See also Preston v State of New York, 59 NY2d 997 (1983). The duty of care is limited by a claimant's reasonable expectations under the circumstances. The State's obligation is to make the recreation area - in this case - as safe as it appears to be so that a Claimant can fully comprehend and perceive any risks he may be taking by using the recreation yard. 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 Transp. 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.
As the trier of fact and law, charged with assessing the credibility [
See Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)] of the various witnesses and evaluating the evidence, the Court finds that the State is at least partially responsible for the Claimant's injury.
The uncontradicted evidence presented was that the State had exclusive control over the premises at Sing Sing, responsible for security and safety. Clearly only Defendant or its agents would have placed barbed wire coils along the chain-link fence abutting the recreation area.
Although it is axiomatic that ". . . [m]ere ownership does not give rise to . . . [a] duty [to inspect and remove hazards] . . . " [Preston v State of New York, supra at 998], the Court is satisfied that the condition was one that could only have been created by the State.
Indeed, the grievance records do not even attempt to contradict the responsibility borne by the facility. [
See Exhibit 1-C]. Notice is not an issue here since the State created the condition. Ohanessian v Chase Manhattan Realty Leasing Corp., 193 AD2d 567 (1st Dept 1993).
That it was a dangerous condition is apparent. Barbed wire coils protruding through a chain-link fence clearly present a foreseeable hazard to users of the recreation area. The Defendant's agents supervised the area and would have had ample opportunity to observe and correct the condition but failed to do so. That Mr. Lozada was completely unaware that there was a hazard to avoid, however, is not so apparent.

Claimant had utilized the A-Block recreation yard regularly, and indicated that he was aware that there were barbed-wire coils along the bottom of the fence, but that he was not consciously aware that it protruded through the fence to the recreation side. But there was some awareness nonetheless.

In both his direct testimony, and during his cross-examination, Mr. Lozada used terminology suggesting that he was aware that there was "something" to be avoided along the chain-link fence and, more specifically, knew that there was barbed wire along the fence. He continually indicated, in words or substance, that during his prior use of the yard he had not paid attention to the barbed wire. Based on the Court's observation of Claimant as he testified, and his consistent - albeit oblique - references, to his awareness that there was "something" in that portion of the yard, it is simply not credible that Claimant was completely surprised by the protruding barbed wire.

Accordingly, although the Defendant created a dangerous condition that it failed to fix, the Claimant, too, failed to see that which he should have seen and avoided by the proper use of his senses. Admittedly, a vigorous game of handball is not a cautious enterprise, but it is foreseeable from both parties' perspectives that players might pursue balls outside the court, and strike the fence in the process.

Based upon the foregoing, the Court finds the Defendant 80% responsible for Claimant's accident and resulting injuries, and the Claimant 20% responsible because of his inattention.

In terms of damages, the only evidence of injury establishes that Claimant suffered a superficial lesion of some 5 centimeters in length, and another superficial cut of indeterminate length behind his ear. No stitches were required and there is no indication that Claimant suffered other than temporary pain. The cuts themselves have healed and an unobtrusive, faded, small scar - a natural result of the healing process - remains in the facial area. Only two follow-up visits are reported incidental to assessing the status of the cuts. The damage is minimal.
See Fagbewest v State of New York, UID#2004-019-016, Claim No. 104241 (Lebous, J., October 21, 2004) (Claimant awarded $380.00 for past pain and suffering and minimal scar); Blake v State of New York, UID#2001-016-218, Claim No. 99695 (Marin, J., January 16, 2002)(Claimant awarded $500.00 for minor and unobtrusive scar, superficial cut and pain for two week period).
Based upon the foregoing, the Court finds that Claimant has been damaged, and is adequately compensated for his past pain and suffering and his minor facial scar in the amount of $1,000.00. When this amount is reduced by 20% due to Claimant's comparative fault, Claimant is awarded $800.00 in damages. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

Let judgment be entered accordingly.

December 13, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiorecordings unless otherwise indicated.
[2] The Claim and its attachments was admitted in evidence as Exhibit 1. The attachments are referred to by the same letter designation given by Claimant, as was agreed at trial.