New York State Court of Claims

New York State Court of Claims

GRIFFIN v. THE STATE OF NEW YORK, #2007-013-501, Claim No. 98373


Synopsis



Case Information

UID:
2007-013-501
Claimant(s):
SHA RON GRIFFIN and SUSAN GRIFFIN, his mother
1 1.Claimant Sha Ron Griffin was a minor at the time this claim was filed. He has since attained the age of majority and the Court has sua sponte amended the caption accordingly.
Claimant short name:
GRIFFIN
Footnote (claimant name) :
Claimant Sha Ron Griffin was a minor at the time this claim was filed. He has since attained the age of majority and the Court has sua sponte amended the caption accordingly.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98373
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
JACOBY & MEYERS
BY: FINKELSTEIN & PARTNERS, Of CounselBY: CHRISTOPHER T. MILLIMAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 21, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim for personal injuries to Claimant Sha Ron Griffin
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arose on July 27, 1996
[3]
when he was involved in two discrete altercations. The medical experts for each party have differing opinions as to whether the displaced fracture of the patella of Claimant’s left knee occurred when he fell in the first altercation or the second altercation. Liability in this claim requires resolution of this dichotomy.
Claimant was a resident at the New York State Division for Youth (DFY) facility at Industry in Monroe County. He had been assigned to the Swenoga Cottage at Industry a short time before these altercations occurred and was 16 years old at that time. He contends that he suffered the fracture in the second of these incidents when, he alleges, he was forced to defend himself at a group meeting conducted under the supervision of three of Defendant’s employees who had the duty to supervise and control the meeting and to protect him from injury.
As noted above, Claimant was involved in two different altercations on July 27, 1996 with another DFY resident named Parks. Altercation #1 took place at approximately 6:40 p.m. in the “hobby” room (Exhibit C),
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where he and Parks had gone after the dinner hour along with other residents. While in the hobby room, words were exchanged between the two of them for what Claimant estimated was ten or so minutes. He then got up from the chair in which he was sitting, went to the door separating the two rooms and asked permission to get a drink from the water fountain in the “activity” room. When that request was denied, he turned to go back to his seat when Parks allegedly grabbed him and “took” him to the floor, which he hit with some force. Punches were thrown as they tussled on the floor, and another resident named Bins began to choke Claimant from behind before Youth Division Aides (YDA’s)
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were able to separate the combatants. According to Claimant, he had one knee on the floor while his other knee was off the floor, but flexed.
He testified that one of the YDA’s grabbed Parks and pulled him out from under Claimant while apparently at the same time YDA Charlton collided into him, placed a restraining hold on him, pushing him to the floor and holding him there until everyone stopped struggling. According to Claimant, his hands were pinned behind him and Charlton placed a knee on his back. It was at this point that he first began to complain of the pain in his left knee and leg and requested to see a nurse. At some point he was able to get himself into a chair where he remained while the three YDA’s set up the activity room for a group meeting. A group meeting is a daily occurrence and allows the residents to talk about their feelings, their day or any other matter on their minds.
As noted, after the combatants were separated Claimant complained of pain, but he was not aware that anyone had advised the nurse of the injury. According to Claimant, after the group had been convened, some ten minutes after the first fight had ended, he still had not been seen by any medical personnel or been escorted to the medical facility for examination and treatment. He was directed to come into the area where this meeting was to occur but, according to him, when he tried to get up from the chair and walk, his knee “gave out” and he had to be assisted into the room (June 7, 2004 Trial Transcript, p. 41). The YDA’s opened the meeting once Claimant was seated and Parks was permitted to speak. Apparently Parks was allowed to leave his seat and walk back and forth in the circle and, according to Claimant, became more and more agitated as he spoke. Another confrontation (Altercation #2) between Claimant and Parks took place because Parks came directly at him in a combative posture. Claimant, who felt threatened and was not able to defend himself because of his injury, attempted to stand to try to move away from Parks. The YDA’s had not made any attempt to intervene and stop the situation from getting out of hand up to this point. Claimant stated that he attempted to get up and move to the side to avoid Parks, who was now rushing at him, but was unable to do so and they again fell to the floor. This second fight was broken up by the YDA’s and medical personnel were advised of Claimant’s complaints. As a result, a transport officer arrived to take him for medical attention.
During his cross-examination, Claimant was referred to his deposition testimony taken in April of 2002. He acknowledged that at that time he stated that his kneecap was broken during Altercation #1 in the hobby room (June 7, 2004 Trial Transcript, pp. 77-79). He went on to state that it was in that room that his knee hit the floor and he felt a sharp pain in his left leg (June 7, 2004 Trial Transcript, p. 81). In response to my questions, Claimant acknowledged that his left knee hit the floor after Bins, the resident who attacked him from behind, was pushed against him by DFY staff who were attempting to stop the fight. He estimated that Bins had him in a choke hold for four to five minutes before the staff members intervened. He went on to say that the first time he felt pain was when he was restrained by a staff member and not before that time.
Ronald Bryant, one of the YDA’s on duty in Swenoga on the evening of the fight between Parks and Claimant, had been employed by the Defendant since 1988. He was aware of the Facility Operations Manual and had been trained in how to react to fights at the facility. Fights were not to be encouraged
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and, when they occurred, the residents were generally encouraged to verbalize their feelings which would assist in counseling the resident in order to prevent any occurrences or reoccurrences. Bryant acknowledged that the residents in Swenoga were perceived as being more aggressive than residents of other cottages. While he could not state that greater supervision was warranted for these residents, he explained that since Swenoga was a dormitory-style cottage and relatively open, it accorded staff a better opportunity to observe the occupants. Bryant was not in the hobby room when Altercation #1 broke out and, to the best of his recollection, nor were Charlton or Gayle, the other two YDA’s on duty at the time of the occurrence. Just prior to the assault he was monitoring the cleanup in the activity room, positioned near the bathroom next to the water fountain and across from the open door to the hobby room, giving him greater ability to observe the residents in that room. He testified that Parks was seated with his back against the common wall but observable through the window. He recalled that Claimant came to the door to ask permission to get a drink of water, which request was refused because of the wet condition of the activity room floor. He then directed Claimant to return to his seat.
Bryant stated that he then saw Claimant turn, walk over to Parks and throw a punch. As soon as that happened a cluster of residents surrounded Claimant and Parks, and Bins was within the cluster. He did not see Bins throw any punches, but recalled seeing him reach into the group. As he approached the door, he saw the protagonists on the floor and observed the rest of the cluster begin to fall to the floor. When he entered the room he saw Parks and Claimant on their sides, Claimant’s leg was on or over Parks, as well as others who had fallen, presumably from the crush of the cluster. YDA Charlton had entered the room and was trying to restrain Claimant, who was offering resistance. The restraint hold utilized on Claimant involved Charlton placing his arms around Claimant’s upper arms and then locking his hands behind Claimant’s back, with the restrainor’s elbow in toward his body in order to prevent Claimant from interfering with the hold while still struggling. Bryant heard the Claimant complain generally of leg pain while in the restraint hold, without specifying which leg. Regardless, Claimant was able to get off the floor and into a chair which was right next to him.
It was the policy at Industry to notify medical personnel when a resident complained of injury and, while Bryant did not make the call, he believed, but was not certain, that Charlton may have done so based on the fact that he observed him use the phone in the hobby room and CSU
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arrived shortly thereafter. Claimant remained seated in the hobby room for about ten minutes before he moved into the activity room for the group meeting. He stated that if it was suspected that someone had suffered a broken bone it would be of immediate concern and that medical personnel should be called to examine the injured resident.
When the group meeting was set up in the activity room, Bryant observed that Claimant, though limping heavily, was able to move from one room to the other without assistance. At the meeting he recalled that the group was seated in a circle, with Parks and Claimant across from each other, perhaps 20 feet apart. Parks began to taunt Claimant, stating something to the effect that now that he was standing he was ready to fight Claimant. These threats were made sporadically over a period of time he estimated to be from 40 minutes to perhaps one hour, with all three YDA’s present in the room and apparently also occasionally speaking to the assemblage. Bryant related that there were breaks between the challenges, but that Parks was permitted to be out of his seat and to pace or walk around in what was described as a way to let off steam. He went on to explain that Parks had not received permission to walk about, but conversely no counselor attempted to restrain or restrict his movements. Ultimately Parks approached Claimant, who was standing by this time in what Bryant described as a fighting position, as was Parks. None of the counselors had attempted to move between these residents since apparently they believed that Claimant would not get to his feet. Before they could reach them, there was another altercation with both combatants falling to the floor (Altercation #2).
Bryant acknowledged that he personally was not paying too much attention to what was transpiring, but rather was concentrating on updating cottage logs. He conceded that he did not see the merit of these types of sessions and, since this session was going on for an extended period of time, he did not become involved (June 7, 2004 Trial Transcript, pp. 137-139). Once the combatants went to the floor he stated that they separated and the fight came to an end. He recalled that he then saw CSU personnel arrive and take Parks and Claimant away.
Over objection, Bryant stated that he was disciplined as a result of this incident and signed off on (consented to) a settlement. The settlement recites three incidents of rules violations including that he, along with the other YDA’s, failed to prevent the second altercation; failed to place in the report any reference to the second altercation, and failed to notify CSU of the physical contact between Claimant and Parks (Exhibit 1[d]).
Bryant recalled that during the Life Space Interview (LSI)
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conducted by Charlton in the hobby room, he heard Claimant complain of pain in his knee (June 7, 2004 Transcript, pp. 152-153). It was after the LSI that the group meeting was held in the activity room where there was a discussion regarding Altercation #1 and its causes with the people involved, under the supervision of staff. Bryant clarified his prior testimony regarding when CSU is generally contacted by stating that whenever a restraint hold is applied to a resident, CSU is alerted so that there can be a post-restraint examination, not just in cases of bleeding or a life-threatening injury. However, a post-restraint examination may not be done immediately, depending on the circumstances. He was not sure when CSU personnel arrived at Swenoga in response to the call from Charlton, but he observed a Mr. Milton from CSU outside in the parking area at a point when the group meeting was in progress. Generally the group meeting is not interrupted for CSU attention if the staff does not consider the injury to be an emergency issue.
In this case, since there were no open wounds and Claimant was able to walk into the activity room, albeit limping heavily, the meeting was not interrupted as his injury did not appear to be an emergency, conceding that Claimant’s knee had not been examined to see if it was swelling or if there were any other signs demonstrative of a severe injury. In addition, the CSU log (Exhibit 12) notes a call made by Charlton at 7:00 p.m. with a reference to Claimant having been restrained and another notation at 7:54 p.m. indicating Claimant was being referred for post-restraint examination. While there is no reference to Mr. Milton being dispatched at 7:00 p.m., the general practice was that he would receive a notification from CSU to go to Swenoga or to wherever the call would indicate.
YDA Randy Charlton had been employed by Defendant for 17 years at the time he testified and on the night of the fight was assigned to Swenoga Cottage. His nickname was “Sarge” because of his military service with the Marine Corps. He was in the activity room with the other YDA’s supervising the cleaning of the area after the dinner period. Except for those residents needed to finish cleaning up, the majority of residents were in the hobby room. Initially, when Claimant asked for a drink of water he permitted it, but then changed his mind and told him to return to the hobby room. Charlton didn’t see Claimant walk by Parks as he approached the door to ask permission, nor did he hear any exchanges between the two in the hobby room. He did see Claimant, as he turned to go back to his seat, punch Parks in the facial area and Parks then grab Claimant. At that point, Bins grabbed Claimant from behind and he in turn was grabbed from behind by another resident, Beltran. As the staff rushed in to break up the fight, Charlton saw Claimant, Parks, Bins and Beltran start to fall to the left and down on Claimant, whose left knee struck the floor with the others falling on him. Charlton then pulled Bins and Beltran off of the pile and tried to place a restraint hold on Claimant, who was still trying to strike Parks. He continued to hold Claimant until the other residents were removed, at which time he released Claimant who was then complaining about having injured his knee. When Claimant was seated, Charlton believed that he looked at his knee but saw no swelling or other apparent injury.
Charlton then spoke to Claimant in an attempt to find out what led to Altercation #1 and, according to a statement given to an investigator on August 2, 1996, he called CSU for transport to medical during the LSI with Claimant (Exhibit 1-H). After speaking to Claimant, he then had Parks come in to get his version of what occurred, while at the same time trying to get one or the other of them to disclose what really led to the confrontation. Even though their respective versions were consistent with regard to the fight, Charlton believed that neither was being forthright about the underlying cause. As a result, he called for a group meeting. During that time Mr. Miller came to Swenoga in response to the call to CSU and Charlton advised him to wait since he had called a group meeting in an attempt to get to the root of the problem and to bring an end to the hostility between the two. In his statement, Charlton states that he knew that they wanted to fight and that in the group Parks and Claimant would deal with it in “whatever way they seen [sic] fit because regardless of what we think and regardless of what we know, it wasn’t over with” (Exhibit 1-H, p. 6).
After the area had been set up, Claimant was directed to the activity room and, according to Charlton, he walked into the room unassisted, but limping very badly. Once the group meeting started, Charlton and Bryant sat outside of the circle, some 20 to 25 feet from where Claimant was seated, while YDA Gayle was seated in the TV area, also moving around at times. Charlton and Bryant were working on reports. It was Charlton’s belief that there were still unresolved issues between Claimant and Parks, and he believed that the group meeting was necessary in order to resolve those issues. He acknowledged that none of the YDA’s attempted to prevent Parks from leaving his seat, despite Parks’ constant taunting of Claimant and statements to the effect that he wanted to fight. Claimant on the other hand kept seated at the outset and responded to these taunts by saying that he did not want to fight. Charlton also stated that during this prolonged period of time Parks balled his hands into fists and he approached Claimant several times, but no staff member ordered Parks to be seated. This, he explained, was because he felt Parks wanted to finish the fight but Claimant was not responding with any aggressiveness.
Since the meeting went on for an extended period of time with no further fighting, he interpreted this as merely posturing and an attempt by Parks to regain some face because of the fact that he had been punched without warning by Claimant in Altercation #1. During this time it was also revealed that the bad blood between these two started at another detention center. Charlton admitted that when Parks approached Claimant the final time, stood in front of him with his fists balled up and challenged him to fight, he still did not believe there would be a fight. After what he estimated was five to ten seconds, Claimant finally stood and assumed a fighting stance of some sort. Another five to ten seconds passed before they attempted to throw any punches and at some point they grabbed each other, eventually falling to the ground (Altercation #2). It was at that point that the YDA’s moved in to break it up. Since both Claimant and Parks stated that it was now over, Charlton concluded that the issues between the two had somehow been resolved.
Charlton assisted Claimant to a chair, observed for the first time that his knee was swelling, applied a cold towel to the area and again called CSU to transport Claimant to medical for examination. The nurse at the facility determined that Industry could not treat him and Claimant was taken to Genesee Hospital in Rochester where x-rays revealed a transverse or horizontal, displaced fracture, not comminuted, of the lower pole of the left patella. Surgery was performed the next day.
Claimant’s expert, Dr. Daniel Elstein, an orthopedic surgeon in Syracuse, stated that he took a history from Claimant, and that he reviewed (1) the notes from the surgery performed at Genesee Hospital by Dr. Dano as well as his postsurgery follow-up notes, (2) the deposition testimony of Claimant, (3) Claimant’s direct testimony from the first portion of this trial, and (4) the trial testimony of YDA’s Charlton and Bryant, all in preparation for his trial testimony.
Dr. Elstein described the surgery to repair the injury as routine. The surgical procedure involved an open reduction of the fracture requiring the surgeon to rejoin the patella by inserting two k-wires, then encircling them with a circulage wire and tightening that wire to squeeze the fragments of the patella together to get a reduction of the fracture (August 3, 2005 Trial Transcript, p. 32). Post-surgery his leg was put into a brace to immobilize it and Claimant was given crutches and medication for the pain. The brace was generally worn for at least six weeks. Claimant’s recovery was somewhat longer than normal, caused by a delay in the union of the patella fragments. As a consequence, after reviewing the result of a tomogram, Dr. Dano ordered external electrical stimulation across the patella to assist the mending process.
Dr. Elstein examined Claimant on September 11, 2002 and noted that: he walked with a left-sided limp; he was able to bend from the hips and touch the floor with his legs straight; flexing of the left leg was to 75 degrees and he lacked 5 degrees of full straightening of his left knee; he had diffused tenderness about the left knee and no pain when he moved the patella from side to side, on either medial or lateral motion. He was able to move Claimant’s left knee 120 degrees passively. He went on to state that his examination revealed some subpatellar crepitus on the left knee. He found that Claimant had good range of motion of his hip and ankles; that his calves were the same size; and the circumferences of both knees (around the patella) were normal. He found that when he measured the thighs of Claimant at midportion, the left was 17½ inches, while the right was 18 inches. He measured both knees two inches above the patella to get an idea of the quadriceps muscles and discovered the right was 17 inches while the left measured 16 inches. This was a significant find for Dr. Elstein, since it revealed that there was some atrophy of the left quadriceps muscle. He interpreted the difference to mean that Claimant was using his left leg less. He concluded by stating that Claimant had a 33⅓% loss of use of his left leg as a consequence of the patella fracture and that it was a permanent condition.
Dr. Elstein then testified that in his opinion, to a reasonable degree of medical certainty, the fight in the hobby room (Altercation #1) caused trauma to Claimant’s left knee and that he could have even suffered a nondisplaced fracture, but that Altercation #2 in the activity room caused the fracture to displace. He based that on the testimony of Charlton that he had not observed any swelling to Claimant’s knee but noted a limp as Claimant walked into the activity room. He opined that if the fracture had been displaced as a result of Altercation #1 it would have been readily apparent to Charlton when he looked at the knee in the hobby room. Moreover, Claimant would not have been able to walk unassisted into the activity room for the group session.
Dr. Elstein submitted two reports of his examination. The first, dated September 20, 2002, sets forth his examination of Claimant and concludes that he has a permanent loss of use of his left leg of 33⅓% due to the injury to his knee. In that report he apparently refers to the events of July 27, 1996 when the knee was fractured as just an altercation, to wit, as if there was only one incident. The second report, dated March 24, 2003, was a letter to Claimant’s attorney wherein he opines that the second altercation was the cause of the fracture (Exhibit J).
At trial Dr. Elstein stated that he was unaware that there were two separate incidents on the date of the accident until he was so advised by Claimant’s attorney. Also at trial he changed his opinion as to when the patella was fractured and acknowledged that the fracture occurred in the first fall in the hobby room (Altercation #1) and opined that it became displaced in the activity room (Altercation #2). He also opined that the displacement occurred when Claimant bent his knee after standing up in the activity room (August 3, 2005 Trial Transcript, p. 69).
The Defendant’s expert, Dr. Edward S. Crane, an orthopedic surgeon licensed by the State of New York, has a private general orthopedic practice in New York City. He is the Chief of the General Orthopedic Section at Lennox Hill Hospital in New York City and in the Orthopedic Residency Program at the hospital. He did not appear in Court for this trial, but with the consent of both parties, his testimony was recorded by a court reporter and a DVD was simultaneously created of his appearance and testimony (Exhibits K, L and N).
Dr. Crane stated that he reviewed the Claimant’s bill of particulars and supplemental bill of particulars; pages 29 to 39, 51 to 59 and 65 to 73 of Claimant’s deposition (Exhibits G, H and I); and medical records, reports and documents from Dr. Elstein, Genesee Hospital, Monroe Orthopedic Associates, Moriah Shock Incarceration Facility and Industry School, all prior to his examination of Claimant. He also took a history from Claimant on March 25, 2005, the day of his examination. All of these he stated were helpful in arriving at his conclusions regarding Claimant’s injuries.
Dr. Crane asked Claimant to walk on his toes and heels in order to put stress on his legs and knees, which he stated assists in determining if the person has arthritis in the leg or knee or if there is swelling so that, if there is a problem, one will generally observe a limp. Claimant had no problem in performing these tasks. He took measurements of the circumferences of the knees, thighs and calf muscles of both legs and found them to be identical on both sides, which meant there was no swelling of the left knee and no objective sign of atrophy of the left knee. Atrophy is an objective sign he often sees in the presence of a chronic ongoing problem such as arthritis or where someone, because of pain, uses the leg in an abnormal manner so that the muscles are not functioning as they should and shrink in size from lack of full use. He noted that Claimant had a permanent scar on the knee approximately 8 inches in length, with no evidence of Tinel’s sign or entrapment of any nerves under the skin. There was mild tenderness upon palpation over the entire front of the kneecap but not elsewhere. He tested the range of motion in both legs and found that the left went from zero degrees (fully straight) to 143 degrees when bent, while the right went from zero to 145 degrees. There was no fluid on the joint and he did not find any synovitis or thickening of the joint lining, which meant there was no chronic inflamation of the left knee joint on the day of Dr. Crane’s examination. He did not find any subpatellar crepitus between the kneecap and the thighbone upon palpation of the area, tests did not reveal damage to the ligaments of the knee and his patella tendon was intact and normal. All tests performed by Dr. Crane were considered to be normal.
Dr. Crane opined, with a reasonable degree of medical certainty, that Claimant fractured his knee in the fall he took in the hobby room (Altercation #1). He reached his opinion based upon testimony given by Claimant at his deposition, provided to him by the Defendant which consisted of selected pages and not the entire transcript (Exhibits G, H and I). Dr. Crane stated that Claimant had testified that his knee was injured when staff came into the room, jumped over a pool table, and struck Bins, who then fell on Claimant, and his knee hit the floor, injuring his knee (Exhibit N, p. 25, lines 3-25). He further relied on Claimant’s testimony that he was assisted to the group meeting by two other residents because he couldn’t walk (Exhibit N, p. 26).
Dr. Crane acknowledged that complaints by Claimant of discomfort to his knee during some of the examination, some nine years post-accident, could be some evidence of permanency. He acknowledged that someone who fractured his patella could walk, but that it would be difficult and painful; that he would expect there to be swelling fairly soon after the insult but could not say how quickly that might happen. While unaware at the time of his examination that Claimant’s knee had been examined (looked at) by a staff member shortly after the first incident with no apparent swelling, he stated that swelling might not be noticeable for an hour or more after the initial fall. When told that testimony at trial established that Claimant walked unassisted, albeit with an obvious limp, from the hobby room to the activity room, he stated that it could be done, but that it would be with considerable difficulty and great pain, which is consistent with testimony elicited at trial. Dr. Crane felt that if someone with this type of fracture was being threatened, that person could most certainly stand up in an attempt to defend himself and could remain standing. He reiterated that, in arriving at his diagnosis, he relied on the excerpts from Claimant’s deposition for a description of what had occurred to him on the day of the altercations and that, even with the information presented to him regarding the testimony elicited at trial, which might have been helpful, his opinion would not have changed.
The fact that there were two distinct fights approximately one hour apart, and Claimant fell to the floor in each instance, complicated my ability to resolve which of these falls caused Claimant’s injury. It is for that reason that I ordered the trial, originally bifurcated, to be unified, and adjourned the proceedings to allow counsel to complete any outstanding discovery matters and produce their medical experts at the continuation of the trial.
At the conclusion of this continuation, Claimant once again moved to conform his pleadings to the proof and to file a supplemental bill of particulars. Both applications were vigorously opposed by the Defendant, and I reserved decision on those motions.
It is well settled that the State has the duty to protect inmates and residents of its penal (and youth detention) facilities from reasonably foreseeable attacks by others (Sanchez v State of New York, 99 NY2d 247; Flaherty v State of New York, 296 NY 342). Claimant has the burden of proving by a fair preponderance of the credible evidence that he was at risk and that Defendant knew of such a risk and failed to provide protection (Sebastiano v State of New York, 112 AD2d 562) or that the Defendant knew that the attacker was inclined to engage in assaultive conduct and failed to take precautions to prevent the attack and failed to take appropriate measures to intervene or prevent an attack.
The record here establishes that the Claimant was the initiator of the first fight which occurred in the hobby room (Altercation #1). While there was evidence that Parks and Claimant had a history and that Parks had been trying to provoke Claimant earlier that evening, including two attempts to trip him, Claimant is the one who, without warning, punched Parks, who then grabbed Claimant and they both fell to the floor. Other residents, including Bins, then became involved, thus creating the ensuing melee. As the proof established, the three staff members (YDA’s), who were not in the hobby room at the time, reacted immediately by entering the room to bring matters under control. By the time they got there, other residents had become involved in the fight and there was a pile of bodies now on top of Claimant, who had one knee on the floor. The added weight of the staff to the pile caused it to collapse and this is the time when Claimant injured his left knee. Charlton immediately put a restraint hold on Claimant, while Bryant pulled Parks from beneath Claimant. It was at this juncture that Claimant first began to complain of pain in his knee.
I find that the staff did not use excessive force in bringing this fight under control. I further find that they reacted swiftly to the altercation and that the assault and subsequent fighting in the hobby room (Altercation #1) was not a foreseeable event. It is clear in this record that this was a spontaneous fight, occurring without warning, and the YDA’s immediate response prevented it from spreading further and perhaps resulting in serious injury to others.
The evidence unequivocally establishes, and I find, that Claimant was solely responsible for Altercation #1 and the consequences that followed in the hobby room, including the injury to his left knee. That conclusion is supported by both medical experts who testified that the fracture to the patella was as a result of Claimant’s fall in the hobby room. Where their opinions differ is regarding whether it was a nondisplaced or displaced fracture at that time. The Defendant’s expert testified persuasively that the first fall did all the damage to the kneecap and based his opinion upon Claimant’s testimony regarding when he first felt pain and its severity. Coupled with that were testimonial references to portions of Claimant’s deposition and trial testimony that he had to be assisted to the chair in the activity room by others. Both experts also testified that it was not unusual for there to be no noticeable swelling immediately after such an accident, and that swelling might not occur for up to an hour after the incident, a time frame which was consistent with Charlton’s testimony regarding his examination of Claimant’s knee in the hobby room after Altercation #1 and his reexamination after Altercation #2.
I was not persuaded by Claimant’s expert’s testimony. He acknowledged that he was not informed or had not carefully read Claimant’s pretrial deposition and/or his trial testimony where he stated that he was unable to walk to the activity room on his own and needed assistance from other residents in order to get there (June 7, 2004 Trial Transcript, p. 41). It will be recalled that Dr. Elstein stated that it was his opinion that, if the fracture had been displaced as a result of the first fall, Claimant would not have been able to walk unassisted to the activity room (August 3, 2005 Trial Transcript, p. 67). Furthermore, he relied on testimony that Claimant walked unassisted with a limp into the activity room, which is consistent with what Defendant’s expert stated could be accomplished, even with a displaced fracture of the patella. His testimony to the effect that swelling would not be noticeable for perhaps 10 to 15 minutes after the fall is consistent with the opinion of Dr. Crane, as well as Charlton’s testimony that when he looked at Claimant’s knee just after the fall he did not observe any swelling. While the fall in Altercation #2 may well have exacerbated the injury, there is no competent medical proof before me that allows such a finding.
That being said, I cannot condone and in no way intend to suggest or allow an inference that the conduct of YDA’s Charlton, Bryant and Gayle following Altercation #1 was in any manner appropriate. To the contrary, while there may have been a cogent reason to hold a group session to attempt to resolve problems between Claimant and Parks, it strikes me that these three aides were at best incredibly naive or, more likely, thoughtless, bordering on incompetency. Since Bryant and Charlton had been employed by the Defendant for extended tenures,
[9]
naivetë does not seem to apply in this instance. I cannot find that anything they did during the group encounter in the activity room was appropriate or in keeping with their duties. In fact, the record demonstrates what I perceive to be a total disregard for the safety of either of these young men. Charlton and Bryant, by their own admission, were doing reports or updating logs while Parks was permitted not only to enter into a combative discourse with Claimant, but was also permitted to rise out of his seat, pace about the circle of the group and on more than one occasion confront Claimant in spite of Claimant’s constant demurral that he did not want to fight.
What was permitted to be created was an emotionally charged atmosphere, reminiscent of the theatrical shenanigans of a professional wrestling event, and the YDA’s were part of the crowd, not security. This session was supposedly designed to permit residents to voice concerns regarding their day and to vocally vent if they had a grievance. Instead it was perverted to the point where these YDA’s demonstrated a careless disregard for the safety and well-being of their charges. There is nothing in this record that persuades me otherwise. The fact that they received what, in my opinion, was a disciplinary slap on the wrist for their failure to report this as two separate occurrences is hardly redeeming. I was, and remain, disturbed by this troubling case, and I would expect and believe that Industry has taken appropriate steps to implement a different and more comprehensive training regimen for its employees to guard against a reoccurrence in similar situations.
My determination that the injury complained of was sustained in Altercation #1, and not in Altercation #2, is dispositive of this claim. The proof has readily established that the YDA’s (and thus the Defendant) engaged in no culpable conduct during Altercation #1, abruptly initiated by Claimant and brought under control as quickly as reasonably possible. The proof has also readily established that the YDA’s (and thus the Defendant) did engage in culpable conduct in allowing Altercation #2 to occur without proper supervision. However, the sole proximate cause of the displaced fracture of Claimant’s patella was Altercation #1, for which the Defendant bears no responsibility, and no competent evidence was presented to demonstrate a measurable exacerbation of preexisting injuries in Altercation #2. Therefore, no compensable injury was proximately caused by the State’s culpable conduct in Altercation #2. The claim herein must be, and hereby is, dismissed.
Any motions made at trial and not heretofore ruled upon, or for which decision was reserved, are now denied, based upon the foregoing findings and decision.
LET JUDGMENT BE ENTERED ACCORDINGLY.

February 21, 2007
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




[2].The claim of Claimant’s mother, Susan Griffin, is derivative in nature, and all references herein to “Claimant” shall mean Sha Ron Griffin.
[3].The claim alleges an accrual date of August 1, 1996, but in a so-ordered stipulation filed on February 19, 2002, the parties stipulated that the correct date is July 27, 1996.
[4].The “hobby” room and the “activity” room were adjacent to each other and separated by a wall that was half glass to allow staff to observe the residents in either room irrespective of where they were situated.
[5].On the day of this incident there were three YDA’s on duty in Swenoga Cottage: Randy Charlton, Ben Gayle and Ronald Bryant.
[6].That would seem to be what might be characterized as a “no-brainer.”
[7].CSU (Central Services Unit) seemingly references central staff members who would be called to examine an injured resident and, if appropriate, provide escort to the medical offices.
[8].The Life Space Interview, a one-to-one conversation, occurs after there has been an altercation, verbal or physical, and is designed to get the individual to voice the problem and get back into the group.
[9].YDA Gayle never testified at trial.