Claimant, a pro se inmate, alleges in Claim Number 105582 that he was treated
with indifference by Defendant’s agents after slipping on a patch of ice
and suffering a broken ankle while in the custody of the New York State
Department of Correctional Services (DOCS) at Gowanda Correctional Facility
(Gowanda). Trial of the matter was held at Wende Correctional Facility on
September 6, 2007.
Claimant alleges in his claim and testified
that on January 22, 2001, at approximately 10:00
, he slipped and fell on a patch of ice in the main yard at Gowanda injuring his
head, back and left ankle. He was carried on a stretcher to the facility
infirmary by fellow inmates where he was assessed and treated. The Inmate
Accident Report completed by the attending nurse confirms the incident and
Claimant’s Ambulatory Health Record (AHR) for that day also indicates that
he slipped on ice injuring his left ankle (Defendant’s Exhibit A). The AHR
notes for January 23, 2001 state that Claimant was treated at Erie County
Medical Center on that day for a nondisplaced spiral fracture of the distal
fibula, his ankle was placed in a walking cast and he was returned to Gowanda
(Claimant’s Exhibit 1 and Defendant’s Exhibit A).
No evidence of any kind was submitted with respect to a claim of negligent
medical care or treatment and, accordingly, to the extent the claim can be read
to assert such theories they are dismissed. The gravamen of this claim seems to
be that while recovering from his injury Claimant was forced to sleep on the top
bunk in his cell, was required to move to a different cell and was directed to
participate in certain prison activities all of which caused him additional pain
No other witnesses testified for Claimant and no other evidence was
Correction Officer Michael Rakiecki (CO Rakiecki), a 22-year employee of DOCS,
testified that he was the officer in charge of the large yard at Gowanda on the
morning of January 22, 2001 when he saw Claimant sitting on the ground near the
pavilion. Claimant reported to the officer that he slipped and fell on the ice
causing the injury to his left leg and the incident was recorded in the daily
log book (Defendant’s Exhibit B). CO Rakiecki also testified that the yard
was cleared of snow and ice and the surface was treated with salt before the
first group of inmates arrived at 9:00
He indicated that there were no complaints of icy conditions or falls from the
inmates in the first group and that Claimant was in the second group of inmates
that arrived in the yard at 10:00
Defendant also called as its witness Dr. Christina Misa. Dr. Misa is a
physician licensed by the State of New York and has been a clinical physician
with DOCS at Gowanda since 1999. Dr. Misa testified that she reviewed
Claimant’s medical records (Defendant’s Exhibit A) and found that he
did not complain of head or back injuries at the time of the incident. She also
did not find any evidence that Claimant requested a lower bunk pass or to be
excused from certain prison activities.
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 ), to protect against foreseeable risks of
harm (see Preston v State of New York, 59 NY2d 997 ). The duty of
care is limited by a claimant’s reasonable expectation under the
circumstances. The State’s obligation is to make the outdoor recreation
area, where Claimant allegedly fell, as safe as it appears to be so that
Claimant can fully comprehend and perceive any risks he may be taking by using
the yard for recreation. Assuming that the State did not create any dangerous
condition, Claimant must show that the State had actual or constructive notice
of a dangerous condition and failed to act reasonably to remedy it in order to
establish liability (Gordon v American Museum of Natural History, 67 NY2d
836, 837 ). Creation of a dangerous condition constitutes actual notice
(Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 , affd
64 NY2d 670 ). With respect to constructive notice, any “. . .
defect must be visible and 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). Claimant, too, may be said to be under a
duty to see what was “readily observed by the reasonable use of
one’s senses . . . [citations omitted]” (Breem v Long Is.
Light. Co., 256 AD2d 294, 295 ).
In this case, Claimant has not submitted any evidence to support his theory
that there was ice in the area where his fall occurred. Only his own
self-serving testimony has been submitted in support of the contention
that there was a patch of ice in the yard. No other witnesses testified to that
effect, although Claimant indicated that other inmates and correction officers
were in the area at the time of his fall.
Even assuming there was a dangerous condition created by the alleged existence
of a patch of ice, there has been no credible evidence showing that the State
was aware of the condition before Claimant fell and failed to cure it. It
is only those foreseeable dangerous conditions which are not remedied within a
reasonable time which may establish liability on the part of the State
(Gordon v American Museum of Natural History, supra), assuming that
proximate cause and actual damages are proven as well. In cases involving winter
conditions, even a failure to remove all ice and snow, or the existence of ice
patches, is not necessarily presumptive proof of negligence (see Hobbs v
State of New York, 55 AD2d 710 ).
Claimant also contends that prison officials were deliberately indifferent to
his medical needs and failed to provide him with appropriate accommodations for
his injury. However, in order to establish a cause of action for deliberate
indifference, Claimant must prove that a prison official knew of and disregarded
a substantial risk to his health or safety (Tatta v State of New York, 19
AD3d 817 ).
From the testimony at trial and the documentary evidence submitted, it appears
to the Court that DOCS personnel acted properly in addressing Claimant’s
needs following the injury. Aside from his own testimony, Claimant did not
introduce any evidence, or provide any expert testimony, that these actions were
not appropriate or timely, or that they violated any administrative procedures
or protocols. In sum, it appears that facility officials acted in a timely and
reasonable manner in responding to Claimant’s injury and there is no
indication whatsoever that those officials acted with any deliberate
indifference to his medical needs. It is unfortunate that Claimant fell and was
injured but his fall is not sufficient, in and of itself, to cast liability on
the State without any showing of negligence on the part of DOCS officials.
Therefore, after carefully considering all of the testimony and documentary
evidence, the Court finds that Claimant has failed to establish by a
preponderance of the credible evidence that the State should be held liable in
negligence for his injuries or the consequences thereof and, as a result, Claim
Number 105582 is dismissed in its entirety.
LET JUDGMENT BE ENTERED ACCORDINGLY.