In a Decision dated December 21, 2005, and filed January 10, 2006, this Court
found the defendant State of New York 75% liable for injuries suffered by
claimant when he fell from a ladder on September 5, 2002 at Watertown
Correctional Facility, where he was then incarcerated. A trial limited to the
issue of claimant’s damages was held on January 16, 2008, and this
decision addresses that issue.
Claimant testified that he was 45 years old at the time of the accident. He
had previously testified at the liability trial that when he fell from the
ladder, he suffered injuries to his right ankle when his right foot became
entangled in the bottom rung of the ladder, causing him great pain.
Immediately after his fall, claimant testified, he was taken to the infirmary
at Watertown Correctional Facility, where he was examined and transferred to
Samaritan Medical Center in Watertown, New York for treatment. At Samaritan
Medical Center, claimant was diagnosed with a medial dislocation of the subtalar
joint of his right ankle. The ankle joint was realigned, and put in a soft cast
to immobilize the injured area.
Claimant was returned to the infirmary at Watertown Correctional Facility,
where he remained for a period of 23 days. During this time, claimant was
essentially bedridden, as he was told to stay in bed unless he had to use the
bathroom. Claimant was given Motrin for pain, but he testified that this did
nothing to relieve the pain that he was suffering at that time.
Claimant also testified that after approximately six days, the soft cast was
replaced with a hard cast, and that eventually he was placed in a walking cast,
which was removed in December, 2002. Claimant testified that his ankle was
therefore set in some sort of cast for a total of 12 weeks.
Claimant also testified that initially, he required the use of crutches to
assist him with walking. At some point in 2003, claimant testified, he was able
to discontinue use of the crutches, but he then needed the use of a cane for
walking. Claimant also testified that after his cast was removed, he was
provided with an ankle sleeve, as well as boots, to provide additional support
for his ankle.
As a result of his injury, claimant testified that he was restricted from any
and all physical activity for approximately one year, and that even after one
year, the condition of his ankle prevented him from any vigorous recreational
Claimant stated that even at the present time, he still has difficulty walking
up or down stairs, hills, or on any uneven ground, without the use of a boot.
Without the boot, he endures considerable pain while walking or during any
Finally, claimant testified that he was released from the custody of the
Department of Correctional Services in June, 2007, and that at the time of trial
he was unemployed. He did not produce any evidence of past employment, nor did
he testify that he was currently involved in any vocational rehabilitation.
John J. Cambareri, M.D., offered testimony
claimant’s medical expert. Dr. Cambareri testified that he conducted a
medical examination of claimant on September 11, 2007. He confirmed the prior
diagnosis that claimant had suffered a dislocation of the right subtalar joint,
and he noticed diffuse swelling around the foot and ankle, as well as diffuse
tenderness in the subtalar joint. X-rays were taken of claimant’s ankle
during this examination, which were compared by Dr. Cambareri to the initial
x-rays taken at the time of claimant’s injury. Dr. Cambareri noticed a
progression of arthritis in both the ankle and subtalar joint when comparing the
two sets of x-rays. Dr. Cambareri concluded that the arthritis was caused by
claimant’s fall, that it is permanent in nature, and that it will continue
Dr. Cambareri also conducted an examination of claimant’s range of
motion, by comparing measurements taken from claimant’s injured right foot
to measurements from his left foot, which was not injured in the fall. Dr.
Cambareri found a measurable loss of motion in both dorsal flex and plantar
flex, and testified that claimant had endured a 75% loss of subtalar motion when
compared to normal motion.
Dr. Cambareri also testified that claimant has scar tissue at the site of his
injury, which produces chronic swelling, for which there is no treatment. He
concluded that claimant will permanently require support for both his foot and
ankle and that his limitation of movement will permanently impair his ability to
walk on uneven surfaces and hills. As for claimant’s posttraumatic
arthritic condition, Dr. Cambareri concluded that this condition will progress
as claimant ages, and that it will cause him difficulty with prolonged walking
or standing, as well as any walking on uneven surfaces.
Daniel DiChristina, M.D., testified as defendant’s medical expert. Dr.
DiChristina conducted an independent medical examination on January 5, 2007. He
concurred with Dr. Cambareri’s diagnosis that claimant suffered a
dislocated subtalar joint of the right ankle as a result of his fall from the
ladder on September 5, 2002. Dr. DiChristina also testified that claimant had
suffered a fracture of the 5th metatarsal bone in his right foot in this fall.
During his examination, Dr. DiChristina testified that he used a goniometer to
measure the amount of flexion in each foot. Based on the measurements taken of
the ankle and the subtalar joint, Dr. DiChristina testified that he was able to
grade claimant’s impairment based upon the American Medical
Association’s Guide to the Evaluation of Permanent Impairment. By his
analysis, Dr. DiChristina concluded that as a result of the subtalar
dislocation, claimant had suffered a 2% impairment of the whole person.
Based on this finding, Dr. DiChristina testified that claimant will not be able
to run again, and that he will have problems while working or walking on uneven
ground. Dr. DiChristina further agreed that claimant had developed some
arthritis in his subtalar joint as a result of the injury.
Although Dr. DiChristina’s measurements differed in some degree from
those made by Dr. Cambareri, Dr. DiChristina applied the measurements taken
by Dr. Cambareri to the American Medical Association’s Guide to the
Evaluation of Permanent Impairment. According to Dr. DiChristina, if Dr.
Cambareri’s measurements were accepted, claimant would have suffered a 3%
impairment of the whole person, according to the Guide. In Dr.
DiChristina’s opinion, the difference between his findings (a 2%
impairment) and those of Dr. Cambareri (a 3% impairment), was not significant.
Based on the testimony of both medical experts, the Court finds that claimant
suffered a subtalar joint dislocation in his right foot and ankle as a result of
his fall at Watertown Correctional Facility on September 5, 2002. Testimony
established that claimant also sustained a fracture of the 5th metatarsal bone
in his right foot in this fall.
Testimony has also established that claimant was confined to the infirmary at
Watertown Correctional Facility for a period of 23 days following his fall, and
that he had a cast (in one form or another) on his right foot and ankle for
approximately 12 weeks. As a result of his injury, he was restricted from any
and all physical activity for approximately one year, but the condition of his
foot and ankle also prevented him from participating in many recreational
activities long after this one-year period.
The Court further finds that from the date of his injury on September 5, 2002,
to the date of the damages trial, a period in excess of five years, claimant has
endured both pain and limitations of movement in his right foot and ankle,
together with progressive posttraumatic arthritis in his subtalar joint.
Therefore, this Court finds that claimant has suffered damages in the amount of
$60,000.00 for past pain and suffering.
Both medical experts testified that the impaired range of motion in both
claimant’s ankle and subtalar joint is permanent in nature, and that these
limitations in range of motion are directly related to the injury suffered in
his fall from the ladder. Both experts also attribute the posttraumatic
arthritis to the injury suffered in claimant’s fall, and that this
arthritic condition is not only permanent in nature, but will also progress as
claimant ages, causing him increased pain and, over time, a lessened tolerance
for walking. Testimony has also established that claimant can no longer engage
in certain recreational activities, and that he will have difficulties in
walking, especially on uneven surfaces, as well as difficulties with any
prolonged walking or standing.
At the time of trial, claimant was 51 years of age, with a life expectancy of
26.6 more years (PJI Vol. 1B, App. A, Table 2). Based on the permanency
of claimant’s medical condition, and the limitations on his normal
activities, the Court hereby determines that $100,000.00 is an appropriate award
for future pain and suffering.
As stated at the outset of this decision, the State was found 75% liable for
claimant’s injuries in this Court’s prior decision on liability.
Therefore, the Clerk of the Court is hereby directed to enter judgment in the
amount of $120,000.00 in favor of claimant Charles Moran. The amount awarded
herein shall carry interest at the rate of 9% per year from December 21, 2005,
the date of this Court’s decision as to liability (see Dingle v
Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New
York, 78 NY2d 540).
Any filing fee paid by claimant may be recovered pursuant to § 11-a(2) of
the Court of Claims Act.
LET JUDGMENT BE ENTERED ACCORDINGLY.