Nicholas Hopkins alleges in Claim number 108701 that Defendant’s
agents at Sing Sing Correctional facility (hereafter Sing Sing) negligently
allowed a dangerous condition to exist in his cell, causing him serious injury.
Specifically, he asserts that a protrusion from a cracked sink with jagged
edges, which he was in the process of cleaning on January 18, 2003, cut his
right pinky finger. Trial of the matter was held on May 19, 2006.
testified that “on January 18, 2003 he was moved to a new cell” at
Sing Sing “on B-Block, cell number Z-64.”
When he saw the cell from the outside, he saw that the sink in the cell was
cracked and the cell was very dirty. He told Correction Officer Smith, who was
further down the gallery, that the sink was cracked and the cell was very dirty,
and asked Smith to take a look at the sink before he moved in. He also asked
Smith if he would “just call movement and control” to see if he
could get in another cell instead. It “would only take a few minutes and
it had been done before.”
Claimant testified that C.O. Smith inspected
the cell, verified that the sink was cracked and that the cell was filthy,
“smelled of urine and feces”, but nonetheless ordered him into the
cell. “Trying to make the best of a bad situation”, Claimant sought
and gained permission from C.O. Smith to clean the cell. While cleaning the
wall, there was a “piece of porcelain hanging” out of the sink, and
he cut his hand open. Claimant ran for C.O. Smith, told him he had cut his hand
on the sink, and that there were six (6) property bags outside the cell that
needed to be secured. Smith ordered Claimant back to the cell to put the bags
away before going to the emergency room. Thereafter, Claimant went down five
(5) flights of stairs, and waited to go to the emergency room with his hand
wrapped in the dirty rag he had been using to clean the cell. The correction
officer in the waiting area “wouldn’t give . . .[him] a clean
handkerchief . . . Twenty (20) minutes later, they went to the emergency
While in the emergency room, the tip of his finger was
“hanging off”. He received eight or nine stitches, and was told to
“keep the finger elevated so that it would heal up.”
treatment, he was escorted back to the same cell. He said that he sat in the
cell for one and one-half hours, asked to speak to a sergeant, and did so.
Thereafter, he was “moved to five building, which is approximately 500
feet from B-Block.” Despite his injury, he said he “was supposed to
carry . . . [his] draft bags to the new cell.” He said that his hand
started bleeding again, and that he showed it to C.O. Hicks, who was escorting
him. When he got to the new cell, his hand was bleeding. He asked to go back to
the emergency room, because he “thought one of the stitches had come out
from carrying the bags”. When the correction officer called the medical
unit, however, he was told that Claimant could not go until morning. The
officer gave Claimant masking tape to wrap around the dressing. The wound was
re-wrapped in the medical unit the next day.
Claimant said that he
currently has pain in his hand when he closes his hand. His finger gets numb.
He said that he cannot use tools for his carpentry work, because he experiences
“pain all the time.” He claims he was “told by medical that .
. . [he] cut a nerve and there was nothing they could do. All they did was
give . . . [him] pain killers.”
A cell inspection report completed in
claimant’s presence, by C.O. Smith on January 18, 2003 notes that the
walls, floor, and bars were dirty, and that although the sink was
“operable” it was also broken and cracked and needed replacement.
[Exhibit 4]. A memorandum dated January 18, 2003 from C.O. Smith to his sergeant
notes that Claimant reported the sink was cracked, and thereafter reported that
“he cut his finger while attempting to clean the broken sink.”
An unusual incident report, and an accident/injury
investigation report with attached photographs, all confirm that Claimant was
injured while cleaning the sink in the cell, that Claimant knew the sink was
broken when he started cleaning it, that he was injured, treated, and moved to a
different cell. [ibid.
The cell was thereafter declared out of
Claimant filed a grievance in connection with
this accident, which was denied. [Exhibit 3].
On cross-examination, Hopkins
confirmed that he was aware that the sink was broken. He denied being told that
he should not clean the cell, or the sink, but said that he was told he must go
in the cell and they would get a plumber in. He said that the cut “was on
an angle, probably an inch and one half in length.”
Officer Smith testified that on January 18, 2003 he was working the 3:00 p.m. to
11:00 p.m. shift as a gallery officer. Describing the obligations of a
correction officer when moving an inmate to a new cell, he said that the officer
inspects it, to assure that “all the papers are out of it, all the things
are in working order so . . . [the inmate] can move into it.” Officer
Smith identified the cell inspection report as one he wrote. [Exhibit 4]. At
trial he recalled, and had noted on the inspection report, that everything was
“operable”, but the walls were dirty. He described the sink as
“operable but broken/cracked needs replacement.” [Exhibit 4]. On
that day, he recalled that Claimant had wanted to clean the cell, and was told
that upon provision of the proper tools, i.e.: a bucket, mop, cleaning
materials; he could do so. Claimant also notified C.O. Smith that the sink was
broken. Smith told Claimant he could clean everything, and that the officer
“would see what they could do, but in the meantime [Claimant] was told not
to touch the sink.” Officer Smith said that had the cell smelled like
urine and feces as described by Claimant on his direct testimony, he would have
noted it on the cell inspection report, which he did not. Moreover, he
testified that he did not smell any urine and feces as described in any event.
C.O. Smith did indicate that unless there is an unusual amount of debris left in
a cell when a new inmate moves in, the practice is to have the inmate who is
moving in clean the cell himself.
After claimant moved into the cell, some
indeterminate number of minutes later, he complained that the sink was cracked.
Officer Smith told him, “move in anyway, it’s late” and then
locked him in for his own safety. Later, someone contacted Smith to say that
the Claimant was calling for him because he had cut his finger. Claimant showed
Officer Smith his finger. Officer Smith asked him how he cut his finger, and
Claimant replied that he had cut it while cleaning the sink. Thereafter, C.O.
Smith notified the emergency room and the sergeant, and Claimant was escorted
to the emergency room.
In connection with the Claimant’s grievance
[Exhibit 3], Officer Smith had written a reply memorandum reporting the events.
[Exhibit A]. The report reiterates the testimony given at trial, to the effect
that Claimant was given a direct order not to touch the sink, and that while
efforts were being made to determine if Claimant could be moved or if the sink
could be replaced, the accident occurred. [ibid.
]. It also notes that the
inmate who had lived in the cell from December 8, 2002 to January 18, 2003 had
never “sustained any injuries from the sink” during that time
The grievance committee’s decision denying the grievance, and
concluding there was “no negligence by staff,” stated:
“Grievant claims he was injured due to negligence. C.O. Smith, in his
to/from, indicates that he was aware of the cracked sink and did advise grievant
to not touch/clean it until a replacement sink or another cell could be
obtained.” [See ibid.
On cross-examination, C.O. Smith
explained that he “does not make those decisions” when it comes to
moving inmates in and out of cells. Thus, he said, allowing the inmate to clean
the cell when he simultaneously was going to see if the inmate could be moved
does not mean his testimony was somehow inconsistent as suggested by Claimant.
Similarly, although the cells are small - 5 by 9 - it still made sense to tell
Claimant not to touch the sink. When Claimant was locked in, his property was
inside the cell, not outside as stated by Claimant.
Dr. John Perilli, the
health services director at Sing Sing, also testified briefly. Dr. Perilli
testified concerning his review of the medical chart entry for Claimant on
January 18, 2003. [See
Exhibit 2]. From Claimant’s ambulatory
health record [AHR] for that day, Dr. Perilli could see that Nurse Rick assessed
Claimant when he came to the facility emergency room. [ibid.
laceration to the right pinky is noted, she checked that the movement was in
normal limits, cleaned the lesion, and notified the on-call physician’s
assistant, PA Kwan. [ibid.
]. PA Kwan described the cut as
“u-shaped, three centimeters by about one quarter centimeter, 2.54
centimeter to the sides, bleeding, clean cut. Eight (8) sutures were placed;
the wound was cleaned and dressed, and he was given some Motrin and returned to
his cell”. Dr. Perilli noted that elevation of the hand was suggested, but
said that did not mean continuous elevation, given that it was a minor injury
not involving nerves or tendons. Keeping it elevated would be helpful but not
The next morning, the doctor saw him after a call-out for a
dressing change. The January 19, 2003 AHR notes, written by the examining
physician, indicate that the wound was dry, and some sanguineous material -
described by Dr. Perilli as “totally expected” within 24 hours of a
wound - was noted and the dressing was changed. [Exhibit 2].
22, 2003, PA Kwan did a follow-up check on the wound. Healing is reported as
normal, there is no infection, there is no numbness; and removal of sutures was
planned for January 28, 2003. The sutures were actually removed on January 31,
2003. It is noted that Claimant did not come on January 28, 2003 as originally
scheduled because he “was on a visit.”
Two other entries
relative to his complaints about his finger at other facilities, are also noted
in Claimant’s AHR. On December 15, 2003 the Claimant saw medical
personnel at another facility, complaining that the “tip pinky . . .
[right] hand throbbing.” [ibid.
]. Other than reassessment, it
does not appear that any medical treatment was given according to Dr. Perilli.
On August 4, 2004 Mr. Hopkins complained of pain in the same finger, was tested
for range of motion, and no deformity was noted, and the inmate is described as
“able to lift weights.” [ibid.
Dr. Perilli said that
Claimant received reasonable and adequate medical care, that there was no undue
delay, and that no treatment other than that given is suggested by the record or
the injury with which he presented himself to medical personnel. The record
does not indicate that there has been any continuing issue related to this
injury, except for the two entries Dr. Perilli noted, which appeared to be minor
complaints. There is no indication of any serious incapacity. There is no
medical reason why Claimant could not continue to do carpentry. No tendons
were cut nor was there any major injury.
On cross-examination, Dr. Perilli
agreed that some localized pain is expected for a few days after the kind of cut
No other witnesses testified and no other relevant
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 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
As the trier of fact and law, charged
with assessing the credibility of witnesses [See Raynor v State of New
, 98 AD2d 865, 866 (3d Dept 1983)] and evaluating the evidence, the
Court finds that the State is not responsible for the Claimant’s injury.
Based upon the evidence presented here, if the cracked sink was a dangerous
condition, there has been no showing that the State was aware of the condition
and failed to cure it within a reasonable time period. It is only those
foreseeable dangerous conditions which are not remedied within a reasonable time
which may establish liability on the State’s part, [Gordon v American
Museum of Natural History
], assuming that proximate cause and
actual damages are proven as well.
The defect in the sink was found on the
very day Claimant moved into the cell. Both the Claimant and the State were
alerted to the danger at the same time. Claimant was told not to touch the sink,
but nonetheless chose to clean it and risk injury, while the State was trying to
remedy the situation. There was no prior notice of a dangerous condition. No
evidence of prior accidents at this location was submitted. The inmate who had
just vacated the cell had made no complaint, nor is there any record of prior
work orders or complaints by anyone else about the cell. Having just been
notified of the potential harm, the State was acting reasonably in its attempts
to fix the condition, when Claimant proceeded to put himself in harms way. The
Court finds that, upon review of all the evidence including listening to the
witnesses testify and observing their demeanor, there is a lack of credible
evidence that the alleged defect, existed for such a period of time that
defendant either knew or should have known of it, and that such defect was a
proximate cause of Claimant’s accident.
Claimant failed to prove by a
fair preponderance of the credible evidence that the State had actual or
constructive notice of any dangerous or defective condition and failed to remedy
it within a reasonable period of time. The Claimant failed to see that which he
should have seen and avoided by the proper use of his senses and is thus
exclusively responsible for his injury. The mere happening of an accident does
not alone establish liability.
Claim number 108701 is in all respects
Let judgment be entered accordingly.