New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2007-013-503, Claim No. 105026


Defendant was negligent in not providing Claimant with assistance to prevent him from falling while in Defendant’s custody and while shackled, and must be held answerable in damages for the injuries sustained by Claimant when he fell from a curb. However, Claimant failed to submit competent evidence of medical negligence, and that portion of his claim is dismissed.

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:
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on October 9, 2001, and alleges the Defendant’s negligence related to an incident that took place on June 22, 2001 at the Roswell Cancer Institute (Roswell) while Claimant was incarcerated at Wende Correctional Facility (Wende).

Claimant fell when leaving Roswell’s rear delivery entrance while being escorted by Correction Officers (CO’s) Joseph Cappello and Paul Lippert. His ankles were shackled. His wrists were also shackled and further restricted by the ubiquitous “black box.” An intended result of such shackling is the limitation of an inmate’s mobility, a limitation which played a part in the accident in question. Testimony established that Claimant had been treated at Roswell on a regular basis on more than 50 previous occasions. It was his experience that inmates always used the rear delivery entrance for ingress and egress.

Claimant proffered a neatly drawn, albeit not to scale, sketch of the Roswell delivery entrance (Exhibit 1), which provided the Court with a general perspective of the premises in question. It appears that the Department of Correctional Services (DOCS) transport van was parked a short walking distance away from the rear receiving platform, so as not to interfere with delivery vehicles. After exiting the building through the rear delivery doors onto the receiving platform, and then walking down a series of steps (while Exhibit 1 displayed five or six steps, the number is not at issue), Claimant walked across a relatively short grassy area with soft dirt, then a paved sidewalk and another small grassy area, and finally off a curb estimated to be some 6 inches high onto the road surface.

The trip progressed without incident until Claimant fell as he was stepping off the curb and onto the road surface. He testified that during the entire trip, including upon exiting the building, he walked without any assistance from the escorting CO’s. Claimant testified that he was attempting to step off the curb, extending one foot off the curb, but the chain which was shackling his ankles got “caught up”[1] under his other foot, thus not allowing his extended foot to reach the lower roadway surface. He started to stumble forward, tried to jump three times to free the chain and to regain his balance (“to right himself”), but could not do so, and thus, with his ankles shackled and wrists further encumbered by the black box, he fell and with his full weight landed on his right knee on the hard road surface. He was able to turn his head so as not to smash his glasses.

These facts are generally without dispute. The testimonial discrepancies of import relate to the location of the escorting correction officer. Claimant averred that from the time that he exited the building and started walking down the steps from the receiving platform, CO’s Cappello and Lippert remained some 6 feet[2] behind him, conversing with each other. He testified that on his previous trips, when walking down the steps and continuing, he had not fallen because “he had assistance,” but that this time he did not. He indicated that CO Lippert had been a transport officer for him on several previous trips to Roswell, although CO Lippert could not recall prior transports.

In essence, the Defendant’s liability for Claimant’s fall depends upon whether he was provided with assistance while descending from an elevated surface, to wit, down the steps, but primarily off the curb, and, if not, whether there was negligence on the part of the Defendant in failing to have provided such assistance.

CO Lippert testified that he did not assist Claimant down the stairs because he was wearing a weapon. When asked, he recollected that CO Cappello had assisted Claimant down the stairs, but could not recall whether he had been assisted off the curb. According to CO Lippert, he stood a little further back behind Claimant while CO Cappello was standing next to him as they walked down the stairs. He testified that there was no formal requirement in the escort process that a CO had to hold onto an inmate.

CO Joseph Cappello testified that he was unaware of any written training instructions, but if he was aware of a situation where it was unsafe for an inmate, he would help. He also testified that he was a few steps ahead of Claimant when they walked down the steps from the platform, and that he was in front of Claimant when he fell. Inasmuch as he was “a couple of steps” in front of Claimant when he fell, he did not see him going down and did not know what had caused the fall. When he turned back he saw Claimant on his knees after the fall.

Interestingly, Claimant testified, and his medical records support, that he had right hip replacement surgery in 1998,[3] and that this information was reiterated at transport preparation time because there is a strip search procedure utilizing what was characterized as the “boss chair.” Claimant suggested that because of certain metallic implants in his body relative to the hip replacement, he alerted/reminded the officer that these metallic implants in his body would set off certain alarms. Claimant’s seeming implication was that because the “boss chair” officer was advised of the hip replacement, the transport officers should have been aware of certain resulting limitations on his mobility merely because of his prior surgery.

Regardless, CO Lippert testified that to his recollection the transport officers had not been given any special medical alerts (which are usually confidential and released only when necessary) with respect to Claimant. Moreover, there was no testimony by Claimant that he asked for any assistance while walking to Roswell from the van or back, and neither CO observed Claimant having any difficulty walking.

Clearly there are certain testimonial discrepancies between Claimant and CO’s Lippert and Cappello. The trial of this claim took place more than five years after the accident, and it is not surprising that memories are not as precise after such a passage of time. It was Claimant’s recollection that both CO’s were standing behind him while he exited the building, went down the stairs and then fell stepping off the curb. He suggests that they were conversing with one another and implies that they were ignoring him. CO Lippert placed himself behind Claimant and he observed CO Cappello next to Claimant, at least while walking down the stairs. On the other hand, CO Cappello testified that he was in front of Claimant while they were walking down the stairs and while stepping off the curb. Claimant argues somewhat persuasively that had CO Cappello actually been walking next to him, then, as he stumbled at the curb and jumped three times in an attempt to keep himself from falling, the officer would have been in such proximity as to provide assistance to prevent or at least soften the fall. That did not happen, and I find Claimant’s version of the events to that point of time to be more plausible. Moreover, given the shackling of Claimant and the need to walk down the stairs and step down from the curb with such restricted mobility, I find on this record that the Defendant should have provided sufficient assistance to prevent the Claimant’s fall. Accordingly, the Defendant must be held answerable in damages for the injuries that were proximately caused in this fall. I find that Claimant engaged in no culpable conduct of his own.

I do find, however, that Claimant exaggerated certain aspects of his injury, and had a selective recollection of his medications and prior medical history, until prodded on cross-examination by the Defendant. He described the initial “massive” swelling of his knee, and that despite his protestations, the CO’s did not return him to Roswell instantaneously to be examined. Rather, based upon an assessment by one of the transport CO’s that Claimant did not appear to be seriously injured, he was returned to the infirmary at Wende. He waited for what he suggested was some 25 minutes before he saw a nurse. It was a Friday afternoon at about 12:30, and the nurse purportedly declined to call a physician. Claimant was given an ace bandage and some ibuprofen and was sent back to his cell without a cane or crutches.

The next morning he was seen by a nurse on rounds, who checked his knee, gave him some more ibuprofen and an ice pack, and put him on a call out (to see a doctor) for Monday. He spent the weekend in his cell, having been given only ibuprofen for his pain. On Monday he was taken to the Wende infirmary where he saw Dr. O’Connell, a staff physician, who took some x-rays and determined that Claimant’s right patella was fractured. Claimant was taken by ambulance to the Erie County Medical Center (ECMC) where his leg was placed in a long-leg cast and he was given crutches. He estimated that he wore the cast for some 7½ weeks and testified that he could not work or do much activity, and stayed in his cell. Claimant remained in general population, was “fed-in” in his cell, and after some 12 or 13 weeks he was able to get back to relatively normal activity. He was on crutches for some 8 weeks, then used a cane for some 3 or 4 months, and when he tried walking without a cane, he noticed “bad mobility” with some knee pain.

The claim described swelling and injury to the right wrist and to the left pinky finger, in addition to the knee injury, described in the claim as three fractures of the kneecap (patella). The testimony at trial focused almost entirely upon the knee injury. Claimant noted that his right wrist and left pinky became swollen after the fall,[4] but that there were no fractures, no specific medical treatment and that the swelling went down after about one month and there were no further problems. Without any allegations of permanence or testimony regarding pain or discomfort, I find those injuries incidental and inconsequential. The knee of course is a different story.

Dr. Jacqueline Levitt, Facility Health Services Director at Wende, reviewed Claimant’s pertinent medical records (Exhibit A). She described the first x-ray reports she saw as being from ECMC and noted that Claimant was fitted with a long-leg cast at ECMC, was prescribed ibuprofen, and sent back to Wende on the same day. Claimant refused to go to the Wende infirmary on his return. He wore the cast from June 25 to August 7, a total of some six weeks, and then it was taken off. He was sent for physical therapy, a lengthy course for strengthening, improving his range of motion, and increasing his weight bearing. He had sustained a nondisplaced fracture, and an x-ray taken after the cast was removed on August 7 showed that it was healed. Dr. Levitt also reviewed the most recent x-ray, from August 2006, which showed “a normal knee.”

While Claimant continues to use a cane, Dr. Levitt observed that there is no objective evidence that he needs one, despite his hip replacement and this healed fracture. However, because Claimant says that he needs it, the medical staff allows him to keep it. Thus, while Claimant says that he feels unstable and that his knee “gives out” on occasion, Dr. Levitt believes that it is more of a psychological dependence, and not a physical need, since there are no objective findings requiring the use of a cane. Dr. Levitt’s review of an x-ray of Claimant’s hip showed that the prosthesis is in good shape. Her expert medical testimony established that his fractured patella has healed normally and that now, some five years later, there is no evidence of arthritis, no evidence of deformity and no evidence of calcification. The x-rays reveal what she persuasively described as a normal knee.

Claimant’s testimony that he has arthritis in his left knee must be rejected, as it is his lay opinion, is not supported by any medical records, and is directly contravened by the analysis and opinion of Dr. Levitt. On the other hand, Claimant testified that he has sustained some permanent consequences from his injury, to wit, that he cannot stand or sit for long periods of time and must move around because his knee “stiffens up” on him, that he feels pain in his knee, that his job changed from standing in the recycle room bagging cans to picking up the garbage in the block, that his condition is permanent and his activities are limited so that now all he does is walk. He also suggested that this will impact on his opportunity to perform as a drummer sometime in the future, since he cannot remain seated for lengthy periods of time. Claimant also acknowledged, in addition to his hip replacement, the fact that he had two herniated discs and degenerative disc disease. Besides his treatment at Roswell for prostate cancer, he also took blood pressure medications, what he described as a “water pill,” and Flexeril for his back problems. Because of these medications and the effect it might have on his liver, Claimant was reluctant to take any pain medications.

With respect to allegations raised by Claimant at trial of medical negligence by the Defendant in the purported failure to have treated Claimant’s knee injury for three days, from June 22 to June 25, there is no competent evidence in the record to support such contentions. For example, Claimant complained of severe swelling at that time,[5] but he has not presented medical testimony that any delay in treatment or examination for three days was detrimental to or extended his recovery period, or for that matter that such alleged delay in treatment or examination was improper or caused him any measurable increase in pain or discomfort.

More significantly, the claim, even read in the most liberal construction inuring to Claimant’s benefit, does not allege or even imply a cause of action relating to Claimant’s medical treatment. Moreover, there is nothing before me that provides any basis for determining what the proper medical care should have been, and I note that Claimant did not explore or inquire of Dr. Levitt what and how his injury should have been treated or whether there was any untoward or improper delay in examination or treatment. Accordingly, any allegations asserting the same are dismissed.

Even were I to consider these insinuations, Claimant saw a nurse on the day of the accident; he saw a nurse on the day after the accident, June 23, and was given ice and ibuprofen; and on June 25 he went to ECMC and his leg was placed in a cast. Thus, whatever medical negligence might be implied is certainly made without any expert medical testimony, and would be speculative and beyond my common knowledge. Medical negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined by the fact finder using common knowledge without the necessity of expert testimony. However, this theory is limited to “those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge” (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo Gen. Hosp. 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hosp., 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, supra), and other similar circumstances.

Even if part of this claim could be construed as containing allegations based upon medical negligence, I find the proof lacking in this regard as well. There was nothing in the evidence to establish negligence on the part of the medical care providers or to establish that anything done or not done by the medical care providers caused, contributed or worsened Claimant’s medical condition or caused him any compensable damages. Any allegations sounding in medical negligence or malpractice are dismissed in their entirety.

In assessing damages, I reviewed Ennis v State of New York (Ct Cl, UID #2002-019-029, Claim No. 101239, Sept. 20, 2002, Lebous, J.),[6] where that claimant had both a fracture of her patella and a comminuted fracture of the right knee, with comparable treatment of a knee immobilizer and crutches and over-the-counter medication. She was confined to bed for one week, and some five weeks postfracture the fixation of her patella was still good, she was full weight bearing at that time and had excellent range of motion. She had some physical therapy, and complained of daily pain in and around the right knee, particularly while walking, and noted that her knee tended to give way when overworked. That claimant was a physically active adult who enjoyed walking, biking, skating and dancing, but now had to limit those activities. Her life changed from that of a very active person to a less mobile person who has had to forego or curtail some of the daily activities she truly enjoyed. That claimant was on crutches for three months, and on occasion still walked with a cane and, unlike here, continued to take pain medication when needed. A licensed physical therapist testified on her behalf and noticed swelling, some range of motion deficit, and some strength deficit to the right knee and opined that her condition could be described as clinically chronic. The Ennis Court found that the greatest changes in health and condition were an impairment of social activities and her subjective complaints that her right knee causes pain whenever overexerted.

The claims are similar in certain respects: no surgery was required; no hospitalization; some physical therapy but not extensive or protracted treatment or medication. And they are different in others, including: the injuries are not identical; no expert testified on Claimant’s behalf (indeed, the objective evidence by Dr. Levitt described his knee as being normal in all respects); and the impairment of Claimant’s social and vocational opportunities seem far less.

In sum, I make a single award based upon my subjective assessment of the past pain and suffering sustained by Claimant as a result of this accident, from its occurrence to the date of trial, and for his future pain and suffering from the date of trial, albeit without any evidence with respect to Claimant’s life expectancy (his date of birth is August 15, 1946). Accordingly, based upon the above, and upon careful review of Claimant’s medical records and testimony and the testimony of Dr. Levitt, I find that Claimant has been damaged in the sum of $4,250.00.

Any filing fee paid by claimant may be recovered pursuant to Court of Claims Act §11-a(2). All motions not heretofore ruled upon are now denied.


March 19, 2007
Rochester, New York

Judge of the Court of Claims

  1. [1]This and other such quoted phrases are from the Court’s trial notes.
  2. [2]In his direct testimony, Claimant estimated the distance to be 6 feet, but on cross-examination he estimated the distance as being 4 to 5 feet behind him.
  3. [3]Claimant’s medical history includes the dislocation and surgery of his left knee in 1973.
  4. [4]Photographs of the pinky and wrist (Exhibits B and C) were of limited probative value.
  5. [5]The photographs of his right knee (Exhibits D and E) taken at Wende upon his return from Roswell on the day of the accident, do not permit any inferences of the degree of swelling.
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