New York State Court of Claims

New York State Court of Claims

MURRELL v. THE STATE OF NEW YORK, #2007-030-026, Claim No. 110192


Synopsis


Inmate claimant failed to establish that State should be held liable for injuries he suffered when his cell window fell on his head. Failure to properly latch the window was proximate cause of accident

Case Information

UID:
2007-030-026
Claimant(s):
MAURICE MURRELL
Claimant short name:
MURRELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110192
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MAURICE MURRELL, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 20, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Maurice Murrell alleges in his claim that he was seriously injured on October 15, 2004 while an inmate at Green Haven Correctional Facility (hereafter Green Haven) because of the dangerous condition Defendant’s agents allowed to exist in his cell. Specifically, he alleges that the cell window was defective, in that it fell from a holding link-chain and crashed down on his head while he was lying on his bed, causing him to bleed and suffer a cut on his head. Trial of the matter was held on April 27, 2007.[1]


Claimant’s trial testimony was essentially as to facts in his written claim. He said that he was injured while lying on his bed reading in “cell 2-26”of the J-Block housing unit at Green Haven, when the window “proceeded to hit me in my head.”[2] He heard a popping noise, then felt pain on his head, “felt a warm substance, and saw that it was blood.” He stated that part of the negligent condition was the window’s “improper installation with a single-link chain that was not stable enough to hold the window’s weight.”

A report from the Inmate Liaison Committee (hereafter ILC), dated June 4, 2002, was submitted on the issue of notice. [Exhibit 1]. The ILC is a group of inmates and correction personnel who meet to gather inmate concerns and determine how they might be addressed. The report, under a section entitled “J-Block Issues”, indicates:
“It has been brought to the ILC attention that the windows in the cells in J-Block are in dire need of repair. As recently as 5/28/02, an inmate locking in J-6-14 was stuck in the head while sitting on his bed reading a book. This is not the first time an incident such as this has happened.

ACTION REQUESTED: That the windows be repaired immediately to prevent any further injuries.


RESPONSE: The process of fixing the windows have begun. J-Block officers were asked to give a list of all windows that are broken, and will be fixed . . . ” [Id.].
Claimant alleged that the windows were “never fixed.”

On the day of his accident, when he “got the attention” of the area correction officers, he was taken to the facility’s medical unit, but “there was some kind of emergency”, so he was “given gauze on . . . [his] head, and waited around for four (4) hours.” Thereafter, he was removed to an “outside hospital - Putnam Hospital - at 1:30 a.m.” When he returned to Green Haven, he was placed in the same cell again over his objection. Photographs were taken of the cell and of claimant. [Exhibit 2]. Although he did not specifically testify to the fact, in his filed claim he averred that he suffered a 2½-inch gash requiring 15 stitches, an abrasion and a concussion. [Claim No. 110192, ¶ Fifteenth].

The “window was fixed four (4) days later.”

He filed a grievance complaint on October 18, 2004, requesting that the window be repaired. [Exhibit 3]. The inmate grievance resolution committee (hereafter IGRC) “accepted” the grievance to the extent that they concluded that he had suffered injuries that required fifteen stitches, that the window had since been repaired, and that monetary relief could only be found by filing a state claim. It is noted that the IGRC investigative report, dated October 19, 2004, indicates that the maintenance department had received the work order for the chain for the window in question on that date, and that it would be repaired as soon as possible. [See id.].

Claimant submitted several internal memoranda generated by the correctional facility in relation to investigating his accident. A memorandum from Sergeant Jolicoeur to Lieutenant Woodward, dated the same day as the incident, appears to summarize the result of an investigation. [Exhibit 4]. The sergeant writes:
“. . . [O]n the above date and approximately 8:30 pm I was informed that inmate Murrell . . . was sent to the clinic to be treated for an injury to his head. When interviewed Murrell stated the window in his cell J-2-26 blew open and struck him in his head. Upon inspection of the window in cell J-2-26, I conclude that inmate Murrell’s failure to properly secure the window locking latch allowed the wind to blow the window open with enough force to break the stop chain thus causing the injuries to his head. A[n] injury report has been filed along with a work order to repair the window chain.”[See id.].


Mr. Murrell said that Sergeant Jolicoeur did not speak to him personally. Sergeant Clark, who also wrote a memorandum to Lieutenant Woodward on October 16, 2004, interviewed the claimant. [Exhibit 5]. Sergeant Clark wrote:
“On 10/15/04 I interviewed inmate Murrell . . . regarding the injury he had sustained to his head. Murrell stated that his window was closed. He was sitting on his bed reading a book. His head was under the window. Murrell stated that the chain that was attached to the window and the wall must have snapped because the window came down on his head, cutting his head open. He stated that he reported this incident to the J-Block 1st officer.” [See id.].


Correction Officer Anderson also wrote a memorandum to Sergeant Jolicoeur on October 15, 2004. [Exhibit 6]. In this memorandum the writer states that the claimant reported to him that the window in his cell had blown open because of the wind and hit him on the head, causing a cut. [See id.]. It was Correction Officer Anderson, it seems, who was first told of the incident directly by claimant, and who called the facility clinic to arrange for his escort to the clinic. [Id.].

Mr. Murrell explained that the window is “directly above the bed in these cells.” He estimated that the window was approximately “2 feet by 2 feet, and very heavy.” He said that it was fortunate that he was sitting in the direction he was sitting, because “any other way. . . [his] head would have been split open.” Claimant further explained that the bed is “lashed to the floor” and cannot be moved. He said that “knowing that these chains are constantly popping, the windows are simply too heavy, it is dangerous for them not to have repaired this known dangerous condition.”

Finally, Claimant also complained of being held in maximum security when he should have been returned to his medium security placement, eighteen (18) months earlier, after he was “returned from keeplock.” Had he not been at this location, he argued, he would not have suffered this accident resulting in a permanent scar, hair loss and mental anguish.

On cross-examination, claimant had to agree with counsel for the defendant’s somewhat arch suggestion that had claimant not committed a felony, he also would not be in the position to have suffered this accident.

Claimant confirmed that the window was attached at the bottom, and contains a hinge that pivots so that it moves up and down. He had been in this cell for two (2) months prior to the incident. He opened and closed the window himself. A chain had to be latched to the window at the top so that it would only open to approximately a 45-degree angle, rather than pivoting all the way open against the wall. There is a latch with a bolt that slides up and down that attaches to the frame of the fixed part of the window that secures it shut. If the bolt is not all the way in, the window could “possibly” blow open, he conceded. If blown open with enough force by the weight of the window and the force of the wind the window could break the chain, he agreed.

Thus, claimant insisted, he always made sure that the bolt was fully engaged, and did so on October 15, 2004. The bolt was fully in its locking area when he sat down to read his book. When the bolt is secure, he agreed, the chain is in a loose position (because it is not holding the weight of the window). When the window is open, the chain is taut. He could not say why it opened, “anything is possible.” Thus, he ultimately agreed, he “could possibly have not had the bolt fully in.” He also had to agree that the chain had held the window for the previous two (2) months: “it had served its purpose”, as suggested by the attorney for the defendant, but on this occasion, it opened with such force that it broke the chain.

Claimant had to concede that the ILC report from June 2002 did not talk about a broken chain, nor did he know anything about the details of the prior accident alluded to in the report, or the details of or existence of any other prior accidents. [See Exhibit 1]. He said that he was not in the block in 2002. He admitted that he did not know whether the windows were in the same condition two (2) years later, when his accident occurred. He agreed that with regard to this, his own accident, there was a chain, and it broke, due to a sudden and unanticipated opening of the window which claimant himself locked.

Sergeant Jolicoeur also testified. In October 2004 he was the area sergeant for J-Block at Green Haven. He was familiar with and investigated the incident. Sergeant Jolicoeur testified that on October 15, 2004 he was informed that an inmate had received an injury. When he heard the explanation for how the injury was sustained, he went to investigate it to ensure for example, that the inmate had not been assaulted or injured other than as reported - which could mean a security concern - as well as to verify what happened. He went into claimant’s cell.

Viewing the photographs of the window in the cell [see Exhibit 2], Sergeant Jolicoeur described how the window operated, in the same fashion as did the claimant, saying that it pivoted on the bottom frame of the window and swung down into the cell toward the floor. He added that the window has a locking mechanism that secures the window closed, and that must be thoroughly engaged. When open, the window must be open to the full extent of the chain with no gradations. “You would have to jerry rig something,” he said to allow the window to be open to a less than “fully open position.”

The locking mechanism shown on page two of Exhibit 2, “shows something tied to the lock like string or fabric”. Sergeant Jolicoeur agreed that “if someone were to attach a shorter string you might be able to keep the window less open.” In the photo, he said, “it is attached to the moveable part of the window, hanging down in front of the window. There is a white item tied to the bolt that would prevent the window from locking if it were tied tight enough.” The witness agreed that the use of such ties to tie to moveable parts or to the locking mechanisms is not part of the regular maintenance of the windows. The witness had seen such conditions in cells before. He had seen it when “people don’t want the window to be fully open or just to get air into the cell.”

Sergeant Jolicoeur examined the locking mechanism in claimant’s cell, and found that it was functioning and not at all broken. Because the bolt was operational, it could fully secure the window. All the other parts - save the broken chain - were functional. The witness agreed that inmates are responsible for shutting their own windows. If the windows are properly latched, “there is no way they could open.” Based on this examination, and the reports of claimant’s description of the accident, Sergeant Jolicoeur concluded that the window must not have been properly latched, because if it had been, the window would not have opened, nor would the holding chain have broken, allowing the window to fall open to strike claimant and cause him injury.

On cross-examination, Sergeant Jolicoeur agreed that it was not appropriate to put personal attachments on a window to adjust it. He agreed that it might mean a misbehavior report would be written against the offending inmate, although that step might “not necessarily [be taken], it could be a verbal counseling.” He agreed that an officer seeing such attachments would be likely to chastise the inmate. He acknowledged that he did not write it in his report, and could not say why. Additionally, he was not sure at what time or by what means he was “notified” of the accident -“it could have been by CO Anderson, by radio, or by a call from the clinic.” He told someone, but was not sure whom, to put a work order in, but did not recall signing a work order. He acknowledged that he did not interview the claimant.

His recollection was later refreshed that he did indeed sign a work order on the same day, specifying that the chain be fixed. [Exhibit 7].

By way of a summation, Mr. Murrell argued that all information received by Jolicoeur and placed in his report was from other sources. Sergeant Clark is the only one who interviewed the claimant and “got it right”, by saying that claimant’s report of the accident was that the window was closed, that the chain was attached, and that the chain snapped. [See Exhibit 5]. He said that the memoranda by Anderson and Jolicoeur and the inmate injury report are all in conflict.[3]

No other witnesses testified and no other 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 Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). 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 History, supra, at 837.

As the trier of fact and law, the court is charged with assessing the credibility of the witnesses [See LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied, 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994); Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)], and evaluating the weight of the evidence presented to substantiate a cause of action.

Thus, upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to establish that Defendant was negligent and that such alleged negligence was a proximate cause of his injuries. Based upon a preponderance of the credible evidence, the claimant has failed to establish the elements of his claim.

Claimant has not established to the Court’s satisfaction that the Defendant was aware of, or should have been aware of, any defect in this particular window, or that such a defect even existed, given the credible mechanics of the accident as shown by a preponderance of the evidence. It is not enough to present a report dated some two years before this accident, referring to one specific window problem in a different cell, and referring generally to problems with windows in the housing unit, to establish that the State had notice of a defect and failed to act within a reasonable time to cure it. No prior complaints about this window were presented, no inspection reports completed by claimant during the time he resided in the cell prior to this incident, for example, [cf. Rivera v State of New York, UID # 2006-030-010, Claim No. 107769 (Scuccimarra, J., June 13, 2006)], or even more generalized complaints of a particular type of problem with this kind of window that had been brought to the attention of the facility and that had not been acted upon within a reasonable time, was presented to establish this element of Mr. Murrell’s claim of negligence.

With respect to the mechanics of the accident, claimant insisted that the window was closed and when asked said that it was fully latched. He also acknowledged that it was possible that he had not fully latched the window, thus allowing it to blow open, and break the chain meant to keep it from opening fully and striking his head. The physical examination of the window attested to by Sergeant Jolicoeur in his credible testimony was to the effect that the latch was not broken, and the hinges were in place. Even claimant acknowledged that when the window is fully shut and latched, it cannot open, and the chain itself is loosened because it has no reason to be taut as it is not holding the window open. Based on this physical evidence, the observation of the photographs of the window [Exhibit 2], together with the other evidence, including the testimony of Sergeant Jolicoeur and claimant, it is far more likely that the window was not fully latched when claimant sat down on his bed, and that the failure to properly latch the window was the proximate cause of claimant’s accident. Thus while the court is sympathetic to the fact of Mr. Murrell’s accident, to hold the State liable under these circumstances would make it an insurer.

With regard to any cause of action related to delays in medical treatment, no medical evidence has been submitted to show that such delay, if any, caused claimant any harm.

Claimant has failed to establish that the State of New York should be held liable for the injuries he suffered when his cell window fell on his head on October 15, 2004; accordingly, Claim number 110192 is in all respects dismissed.

Let judgment be entered accordingly.


June 20, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. The court denied claimant’s pre-trial motion to strike defenses [M-73152] on the record.
[2]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[3]. Presumably claimant was referring to a form entitled Inmate Injury Report dated October 15, 2004, and attached to the filed claim, in which his statement was taken by medical personnel and reported as: “while read (sic) in cell J-2-26 the cell window fell from its hinges striking inmate in the top of head.”