New York State Court of Claims

New York State Court of Claims

BANKS v. THE STATE OF NEW YORK, #2007-029-012, Claim No. 112621, Motion No. M-72799


Inmate claimant awarded summary judgment after being burned during physical therapy treatment.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 11, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for summary judgment. In the underlying claim, claimant, an inmate in the State’s correctional system, alleges he suffered burns on his shoulder during a physical therapy session at Shawangunk Correctional Facility. Claimant’s motion is supported by his affidavit, verified claim and verified notice of intention which describe the events that led to him being burned and by uncertified copies of correctional facility documents describing the incident. It is opposed by the affirmation of the assistant attorney general who submits certified copies of four pages of correctional facility records, some of which are the same as the documents submitted by claimant. Although somewhat unusual in a negligence case, and even more rare in a case relying on the doctrine of res ipsa loquitur, the court finds that claimant has met his burden of establishing his entitlement to partial judgment in his favor on the issue of liability as a matter of law [1] and that defendant has failed to submit any probative evidence or argument raising a triable issue of fact [2].

In his verified notice of intention, incorporated by reference in his verified claim, claimant relates that he was called to physical therapy on September 1, 2005 and that part of the treatment involved application of a hot plate wrapped in a towel to his left shoulder. Claimant alleges he complained that the device was too hot but his complaints were ignored, causing burns and permanent scarring.

According to an Inmate Injury Report completed by Nurse Joan Courtney (Defendant’s Exhibit A, p 4), claimant presented at the Wallkill Correctional Facility [3] health facility at 7:45 a.m. on September 2 stating that while receiving physical therapy the day before, a heating pad caused burns on his shoulder. The nurse wrote “[b]urns noted on Lt shoulder (3) blisters intact,” applied Bacitracin and a dressing, and admitted claimant to the infirmary to be seen by a doctor (id.). She elaborated in an Inter-Departmental Memorandum addressed to “Dep. Hansen” noting that claimant told her he had “complained to PT staff that the moist heat was too hot and another towel was placed between the heat source and his skin” (Defendant’s Exhibit A, p 3).

Claimant filed a grievance concerning the incident, generating an “Investigative Report” (the investigating officer’s signature is illegible) stating that the physical therapist had related essentially the same account of the incident as did claimant and further stating: “After this incident, the Physical Therapist asked me if he could order a special heat cover that would provide additional skin protection” (Defendant’s Exhibit A, p 2).

Defendant also submitted photocopies of two photographs of claimant’s shoulder, with the caption: “Inmate Banks 94A0299 C-3-34 burn to L/shoulder from physical therapy at S.C.F.” (Defendant’s Exhibit A, p 5).

A party seeking summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” [4] Once such a showing has been made, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” [5]

Although defendant objected to some of the exhibits submitted by claimant, there is no issue with respect to the admissibility of sufficient evidence to support the motion. The certified documents submitted by defendant are adequate for the court to decide the issues presented on this motion, particularly since they are all consistent in relating what happened to claimant on the date in question. The primary issue – prior to consideration of defendant’s contentions in opposition – is whether the facts alleged by claimant, and reflected in defendant’s exhibits, support a finding that claimant is entitled to judgment as a matter of law. In this regard, claimant relies on the venerable legal principle of res ipsa loquitur; Latin for “the thing speaks for itself.”

Res ipsa loquitur is a rule of evidence that allows the finder of fact to infer that an unusual event happened as the result of a defendant’s negligence. If the requirements for application of the principle are present, the fact-finder is permitted, but not required, to make an inference of negligence. [6] Three elements must be shown before res ipsa loquitur becomes relevant: (1) that the event is of a kind that does not ordinarily occur in the absence of negligence; (2) that it was caused by an agency or instrumentality within defendant’s exclusive control; and (3) that it was not due to any voluntary action or contribution on the part of the claimant. [7] A claimant’s reliance on res ipsa loquitur does not change the applicable burden of proof: preponderance of the evidence. Thus claimant need not conclusively eliminate all other potential causes of the injury, but only establish that the evidence supporting the application of res ipsa loquitur provides “a rational basis for concluding that ‘it is more likely than not’ that the injury was caused by defendant’s negligence”.[8]

Here, there is no question that claimant has satisfied the “exclusive control” and “lack of comparative fault” prongs of res ipsa loquitur analysis, and defendant does not contend otherwise. Rather, defendant takes issue with claimant’s assertion that the event was something that does not ordinarily occur in the absence of negligence and asserts there are unanswered factual questions that preclude claimant from obtaining summary judgment.

In Morejon v Rais Constr. Co. (7 NY3d 203 [2006]), the Court of Appeals addressed the specific question of whether a claimant or plaintiff can ever prevail on a summary judgment motion when reliance on res ipsa loquitur is the basis for the contention that the claim has been established as a matter of law. The Court noted that a successful invocation of res ipsa loquitur gives rise only to a permissible inference, not a presumption, and thus does not “ordinarily or automatically” [9] entitle a claimant or plaintiff to summary judgment or a directed verdict. Nevertheless, the court declined to hold that summary judgment could never be appropriate in a res ipsa loquitur case, instead finding that it is justified “only in the rarest of res ipsa loquitur cases . . . when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.”1[0]

In support of its observation that summary judgment should be rare in res ipsa loquitur cases, the Court noted that the Appellate Division has held barely more than a dozen times in the past century that a plaintiff was entitled to summary judgment or a directed verdict. Some of the decisions the Court cited as examples included cases where an unconscious surgical patient slid off the operating table during surgery, where a shopper in a clothing store was injured when a bar became dislodged from a wall, where a cap flew off a pickup truck and struck another vehicle, where a passenger jet left the runway at Kennedy Airport, and where a vehicle left the road, mounted the center divider and collided with a tree. 1[1] What all of these cases have in common are findings that the plaintiff’s proof with respect to res ipsa loquitur in each case was so convincing that the inference of negligence was “inescapable,” raising a duty on the part of the defendant to come forward with any evidence in its possession to rebut the inference.

In considering claimant’s initial burden to make a prima facie showing of his entitlement to judgment as a matter of law, the court concludes that this is one of those rare cases where claimant, relying on res ipsa loquitur, has shown not only the absence of any material issue of fact but also that the inference of negligence is inescapable. The burden now shifts to defendant to demonstrate, via proof in admissible form, the existence of triable factual issues. 1[2]

Other than documentary evidence that supports claimant’s factual account of the incident in all respects defendant presented only the affirmation of counsel, opining and arguing the following:

1. The therapist acted properly when he placed another towel on claimant’s shoulder.

2. There is no proof that the therapist acted negligently or in “disregard of community standards.”

3. There is no proof that the heat source was malfunctioning or that defendant had notice that it would cause claimant’s skin to burn.

4. There is no proof that claimant was in need of special precaution due to age or sensitivity.

The court finds that such allegations, made by counsel with no evidentiary support, are without probative value. Defense counsel’s statements that the therapist acted properly, her reference to what “community standards” might hold and her speculation that the heat source might have malfunctioned and that claimant might have been particularly sensitive to heat were all rank supposition and conjecture, nothing more than the “[m]ere conclusions, expressions of hope or unsubstantiated allegations” that are not competent to address a responding party’s burden on a summary judgment motion once the movant’s burden has been met. 1[3] Defendant has not identified one factual issue that needs to be decided at trial. Had defendant’s allegations been supported by competent evidence of proper physical therapy practice, a malfunction or lack thereof of the heat source or claimant’s alleged particular sensitivity to heat, or any indication that burns to the skin such as claimant received are a normal and accepted risk of physical therapy involving heat, defendant may well have been able to demonstrate triable issues of fact. No such evidence was presented, and counsel’s statements to the contrary are not an adequate substitute. 1[4] Further, the fact that a physical therapy treatment uncontrovertedly resulted in second degree burns implicates negligence within the comprehension of a layperson. Thus, this court does not deem it necessary to require expert medical proof as to causation or the relevant standard of care. 1[5]

Accordingly, after review of the entire record, the court finds that claimant’s proof “is so convincing that the inference of negligence arising therefrom is inescapable . . . [and if defendant was] in possession of any evidence to rebut the inference, [it was] duty bound to present it in opposition to [claimant’s] motion” 1[6]. Defendant having failed to do so, the court finds that claimant has established that there is no defense to his cause of action and he is entitled to judgment on the issue of liability as a matter of law. The Clerk of the Court is directed to enter an appropriate interlocutory judgment. The court grants defendant’s request for a period of time to obtain disclosure, including a physical examination, relative to the issue of damages. The court will not schedule a damages trial until after September 1, 2007 to provide sufficient time for preparation.

April 11, 2007
White Plains, New York

Judge of the Court of Claims

[1].Zuckerman v City of New York (49 NY2d 557 [1980]).
[2].Zuckerman, supra; Guiliano v Town of Brookhaven (34 AD3d 734 [2d Dept 2006]).
[3]. Claimant resided at Wallkill but had been taken to Shawangunk, which is nearby, for the physical therapy.
[4].Alvarez v Prospect Hosp. (68 NY2d 320, 324 [1986]).
[6]. Morejon v Rais Constr. Co. (7 NY3d 203 [2006]. citing Foltis, Inc. v City of New York, 287 NY 108 [1941]).
[7].Kambat v St. Francis Hosp. (89 NY2d 489 [1997]).
[8].Id. at 494.
[9].7 NY3d 203, 209.
[1]1.Thomas v New York Univ. Med. Center (283 AD2d 316 [1st Dept 2001]); Harmon v U.S. Shoe Corp. (262 AD2d 1010 [4th Dept 1999]); Smith v Moore (227 AD2d 854 [3d Dept 1996]); Farina v Pan American World Airlines (116 AD2d 618 [2d Dept 1986]); Cebula v Bonime (92 AD2d 856 [2d Dept 1983]); see Morejon v Rais Constr. Co. supra (7 NY3d 203, 209, n 8).
1[2].Zuckerman v City of New York, supra; Davenport v County of Nassau (279 AD2d 497 [2d Dept 2001]).
1[3]. Zuckerman v City of New York, supra (49 NY2d 557, 562).
1[4].Slanetz v North Shore Univ. Hosp. (228 AD2d 490 [2d Dept 1996]).
1[5].See Meiselman v Crown Heights Hosp. (285 NY 389 [1941]); Halas v Parkway Hosp. (158 AD2d 516 [2d Dept 1990]; cf. Fox v White Plains Med. Center (125 AD2d 538 [2d Dept 1986]).
1[6].Cebula v Bonime, supra (92 AD2d 856 [2d Dept 1983]).