New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-030-010, Claim No. 107769


Synopsis



Case Information

UID:
2006-030-010
Claimant(s):
ANIBAL RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107769
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ANIBAL RIVERA, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 13, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Anibal Rivera alleges in Claim Number 107769 that he was injured on February 28, 2002 while an inmate at Green Haven Correctional Facility (hereafter Green Haven) because of the dangerous condition Defendant’s agents allowed to exist in his cell. Specifically, he alleges that the cell window was defective, and suddenly swung open and crashed down on Claimant’s head while he was sitting on his bed, causing him to bleed profusely and suffer a deep gash in his head. Trial of the matter was held at Sing Sing Correctional Facility on March 3, 2006.
[1]

Claimant testified that in 2002 he was assigned to J-Block housing, in a “room-like” cell number J-4-7 at Green Haven, containing “windows that open downward. The windows have safety bars to limit the range of motion as the windows open. Cell seven was missing a safety bar on the window.”
[2]
The windows opened inward, he explained, and with a safety bar present would only open to a 45-degree angle. Without the safety bar, the window would “crash down.” Additionally, in his room, the windowpanes were also loose.
When he was first assigned to the cell and entered it, he told the officer that the window was broken; and also recalled completing an inspection form that was given to inmates when they first entered a cell noting that the window was broken. He made a temporary repair to the window with some shoelaces, because not only would the window “not lock”, it also could not be closed tightly, creating drafts. The window was directly above his bed.
He recalled that he had been in the cell for perhaps more than two (2) months before the accident on February 28, 2002. It was a windy night, and he was sitting on his bed reading when the shoestring “popped” and the window landed on top of his head. Because the window had two panes divided by a metal bar, it was the metal bar that hit the top of his head. Window glass also shattered, all over the bed. After touching his head, he saw blood on his hand, realized he was injured, and called the officer on the block for assistance. He was taken to the facility hospital, treated, and released.
In terms of injuries, Claimant indicated he had a gash on top of his head, 3.5 centimeters long and .4 centimeters deep. He did not receive any stitches.
On March 7, 2002, he filed a facility grievance. [Exhibit 1]. In the grievance, he asked that his window be fixed, and that “all prior work-orders, to repair these hazardous windows once and for all, be honored.” [ibid.]. The grievance was affirmed to the extent that his window was repaired on April 15, 2002. [ibid.]. Claimant did not produce a copy of any work order specifically for his room pre-dating the accident.
On cross-examination, Claimant indicated that he did not have a copy of any prior work orders, and did not have a copy of any inspection form for his cell, nor did he recall the name of the officer he told about the defective window. He acknowledged that he did not demand a different cell despite the defect, but explained that to make demands would “land . . .[him] in SHU, which is not very pleasant.” The repair using the shoelaces, he made on his own, without any direction from personnel. He did not move his bed away from the window, and noted that it was not generally a practice of inmates to “expose yourself to the bar side” of the room, where passing inmates might harm you.
As a result of the accident Mr. Rivera indicated that he has a scar on the top of his head, which was viewed by the Court. The Court viewed a barely perceptible scar on the top of Claimant’s head at the center of his forehead going straight back. Claimant asserted that his permanent injury is the scar itself and that he does not suffer from any physical pain. He explained that “psychologically” he “wouldn’t stand near one of those windows even if it had a safety bar on it.”
Mr. Rivera acknowledged that during the grievance process, he was told by the committee that there had been no prior complaints or work orders about Claimant’s specific window. Claimant reiterated that other than the original inspection report and his oral complaint to the officer when he was first placed in the room, he made no other written complaints concerning his window. Claimant explained that at one time he had a copy of a more general work order for repairs in J-Block generally, but he no longer had any documents.
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 or 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)] and evaluating the evidence, the Court finds that the State is responsible for the Claimant’s injury.
The Court found that Mr. Rivera was a credible witness, whose testimony was not embellished, and was essentially uncontradicted. Based upon his uncontradicted, credible testimony, Claimant has established to the Court’s satisfaction that the Defendant was aware of, or should have been aware of, the defective window, because Claimant told the officer upon his first inspection of the cell that there was a defect, and noted the defect on an inspection form. The Court is satisfied that the Defendant had actual notice of the dangerous condition, and failed to act reasonably to cure the defect although it had opportunity to do so over the more than two (2) months Claimant resided in the cell prior to his accident. The failure to fix the window is a proximate cause of Claimant’s injury.
With respect to damages, however, no evidence was admitted to show the extent of Claimant’s injuries beyond his own testimony and the Court’s observation. As noted, the Court does find that testimony credible, but it is inherently limited. While certainly Claimant has a small scar now, that may - or may not - be permanently visible, it is fairly insignificant in damages terms. See e.g. Fagbewest v State of New York, UID#2004-019-016, Claim No. 104241 (Lebous, J., October 21, 2004) (Claimant awarded $375.00 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).
Mr. Rivera has no present complaints of pain related to the accident, and while understandably leery of being near this kind of a window, has not established permanent psychological harm.
Accordingly, the Court awards Claimant damages in the amount of $500.00 for past pain and suffering and a minor scar. 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.

June 13, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Claimant’s request for an adjournment of the trial, heard only on the day of trial, was denied, given that the Claimant had been provided with notice of the trial in a writing from the Clerk’s office sent December 19, 2005: three (3) months earlier. Additionally, the Claim had been pending for almost three (3) years, since it was filed in 2003.
[2]. All quotations are to trial notes or audio recordings unless otherwise indicated.