Claimant, an inmate at Shawangunk Correctional Facility, seeks damages arising
out of a February 10, 2005 incident in which he sustained a broken tooth,
allegedly the result of negligence on the part of defendant’s employees at
the correctional facility. According to claimant, he injured his tooth while
biting into a rock that was part of the food served to him for lunch that
Claimant testified that for medical reasons he was served lunch in his cell
rather than the mess hall. Lunch on the date in question consisted of two
hamburger patties, rolls, and seasoned, roasted potatoes. The potatoes were
round, about ½ inch in diameter. Claimant stated he bit into what he
thought was a potato, felt pain, and saw that the potato was, in fact, a rock.
He claimed a portion of the tooth broke off and he was bleeding. He reported
the incident to Correction Officer Stockhofer, gave him the rock, and requested
medical treatment, but he was not treated until four days later.
Upon inquiry from defense counsel, claimant advised that he was given plastic
utensils along with his meal. He confirmed that he did receive dental treatment
for the tooth, which did not die but was in fact repaired. He stated that his
understanding was that Officer Stockhofer gave the rock to a different officer,
who in turn discarded it.
Officer Stockhofer described the rock that claimant gave him as grayish, about
the size of a golf ball. He stated it was not brown, had no seasoning or grease
on it, and did not look like a potato. He did not put in an emergency sick call
for claimant because he saw no blood and claimant did not appear to be in pain.
Instead of sick call, he listed claimant for a dental appointment, which can
sometimes take a few days. He asserted he would have put in for emergency sick
call had claimant appeared to be in pain.
Wayne Haywood was an inmate working “feed up” duty on the date in
question, and it was he who prepared claimant’s tray and served it to him.
He testified that the food trays are covered by plastic see-through covers and
that he did not remove the cover from claimant’s tray when he served it.
Sometime after he served claimant the tray, claimant showed him a rock, a little
smaller than a quarter, about the same size as the potatoes, that was
“darkish black” and oily. It was not clear how claimant had the
opportunity to show Haywood the rock before giving it to Stockhofer. In any
event, Haywood did not recall seeing the rock on the tray when he prepared
Claimant filed various grievances and appeals arising out of the subject
incident (Exhibit 1). These proceedings uniformly concluded that claimant had
not presented sufficient evidence to substantiate his allegation that a rock was
part of the meal served to him. It was also noted in the March 16, 2005
decision on claimant’s grievance that the tooth was repaired on February
14, 2005 (id.).
Prior to the commencement of trial, defendant moved to dismiss the claim for
lack of jurisdiction. The claim, filed on January 26, 2007, almost two years
after the incident, alleges that claimant served a notice of intention to file a
claim on defendant on May 3, 2005. Court of Claims Act § 10(3) requires
that a claim be served and filed within 90 days after its accrual, unless
claimant served a notice of intention within such 90-day period, in which case
the claim may be served and filed within two years after accrual. Defendant
alleged in its answer that the claim was untimely, depriving the court of
jurisdiction. Thus, whether or not the claim is properly before the court is
dependent on whether claimant served his notice of intention within the
statutory 90-day period.
Defense counsel stated that, although the Attorney General was in fact served
with claimant’s notice of intention within 90 days, that document was not
properly verified and it was rejected and returned to claimant. Apparently,
claimant served a second notice of intention, properly verified, but that
document was not served until after the expiration of the 90-day period.
Claimant stated that his original notice of intention was
“notarized” and that he thought that meant the same thing as
“verified.” The court was not provided with a copy of the notice of
intention and has no way of knowing what that document contained, whether it was
properly verified or not and whether defendant rejected the document with due
diligence, explaining the nature of the defect. That being the case, and given
that it is uncontested that claimant did serve a notice of intention within the
statutory period, the court must find that defendant failed to establish that
the notice of intention was defective and that the claim was therefore late and
jurisdictionally defective. The motion is denied.
Defendant also moved to dismiss the claim on the merits, contending that
claimant failed to establish a prima facie case of negligence. The court
Other than claimant’s unsupported testimony there was no proof that the
injury to his tooth was caused by a rock concealed in his food. The inmate who
prepared the tray and served it to claimant saw no evidence of a rock or foreign
object in the food. There was no evidence contradicting the conclusions of the
various hearing officers who reviewed claimant’s grievances; i.e. that
claimant failed to establish the source of the rock. Additionally, there was no
testimony or documentary proof establishing that claimant’s broken tooth
was caused by a rock.
It is the claimant’s burden to prove that it is more likely than not that
State negligence was the proximate cause of his injury and the proof adduced by
claimant was wholly insufficient.
As defendant contends, it is not the insurer of the safety of correctional
inmates. Proof that injury occurred in a correctional facility is not a
sufficient basis for a finding of liability, in the absence of proof of
negligence for which the State is responsible. In the absence of any such
proof, the court is constrained to dismiss the claim.
The Clerk of the Court is directed to enter judgment of dismissal in accordance