New York State Court of Claims

New York State Court of Claims

HANKINS v. STATE OF NEW YORK, #2008-040-028, Claim No. 111180


Trial – pro se former inmate. Court finds Claimant failed to establish by preponderance of the credible evidence that State negligently maintained a chin-up bar in gym at CF or that State rendered inappropriate medical care.

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:
Steven Hankins, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael W. Friedman, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 13, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se Claimant, Steven Hankins, has failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The Claim alleges two causes of action: (1) negligent maintenance of a chin-up bar in Activity Building 2 at Franklin Correctional Facility in Malone, New York (“Franklin”); and (2) failure to provide Claimant with prompt and adequate medical care for a fractured ankle. The trial of this Claim was held at the Court of Claims in Albany, New York on March 27, 2008.

Claimant testified that, on February 15, 2005, he: was incarcerated at Franklin; went to the Activity Building gymnasium (hereinafter gym) for afternoon recreation; and was exercising on a chin-up bar that was not attached to the wall. He stated that 100-lb. weights were used to hold the bar up. As he was dismounting from the bar, he stepped on the weights, everything (he, the weights, and the bar) fell and he landed on his right ankle. Claimant testified that the chin-up bar was five feet from the wall. It was not bolted to the wall as it should have been, and as the other exercise equipment was, such as the heavy and speed bags and the squat rack. He stated that: he remained on the ground for a time; medical staff was called; he was placed on a stretcher; and he was put in a minivan for the trip to the Franklin infirmary.

Claimant testified that the nurse looked at his ankle, told him to put ice on it, take Tylenol, and that he would be alright in a few days. An Inmate Injury Report (Ex. 5) was prepared. He said that, after a few days, he complained about his right ankle. The swelling had not subsided and he was not able to walk on it. He said he was advised that there was nothing wrong with his foot and warned to stop abusing emergency sick call privileges. About three months later, on May 6, 2005, he returned to sick call regarding his ankle and x-rays were ordered. The x-rays were taken on May 19, 2005 (Ex. 1, p. 2; Ex. 9) and a fracture was discovered.

On cross-examination, Claimant testified that he was transferred to Franklin in May 2004 and had been to the gym and used the exercise equipment prior to the date of his accident. He stated that, prior to the incident, the last time he had been to the gym was in September or October, 2004. Thus, the date of the subject incident was his first workout in the gym in about six months. It also was the first time he used that piece of equipment at Franklin. He described the piece of equipment he was using and “tripped over” as a chin-up bar.

Defendant called Robert Ouimet as a witness. Mr. Ouimet is employed by the New York State Department of Correctional Services (“DOCS”). He has been employed by DOCS since May 1985 and has been a civilian employee since 1986 as a Recreation Program Leader. In February 2005, he was employed as Recreation Program Leader at Franklin. He did not know Claimant at the time of the subject incident and learned of the accident the day after it occurred when he was notified that an inmate had been injured.

The witness testified that Claimant was using a safety squat rack when he was injured and it was not designed as a pull-up apparatus. He further stated that, when the inmates use the weight equipment, they are required to use “spotters” to assist them in getting the weights back onto the racks.

On cross-examination, Mr. Ouimet stated that there were two squat racks located in the gym. He said that inmates are not allowed to use either of them as a chin-up bar. He did acknowledge, however, that he has seen inmates doing chin-ups on the squat racks, but said he has issued warnings to those inmates. He stated he would issue a misbehavior report to such an inmate only if the inmate ignored the warning and continued utilizing the squat rack improperly.

The State also called Catherine Caban-Mulverhill as a witness. Ms. Caban-Mulverhill is a nurse who has been employed by DOCS for approximately 14 years. She currently works at Bare Hill Correctional Facility in Malone, New York, but on February 15, 2005 was working at Franklin. The witness reviewed Claimant’s medical records (Ex. A). She stated that page 3 of Ex. A is a copy of an Ambulatory Health Record (“AHR”) for Claimant made on the date of the accident. The witness said that she made the AHR entry. She reported that Claimant came to emergency sick call complaining of right ankle pain. She assessed the area, saw no signs of swelling and noted that Claimant had no problems ambulating. She stated the inmate was advised to return to the clinic if there was no improvement. The medical records (Ex. A) indicate that Claimant made two more visits to the infirmary in February 2005, neither time in relation to his ankle. One was for a medication (February 17, 2005). The other concerned the scheduling of a routine electrocardiogram (February 21, 2005). Claimant made two trips to the infirmary in March, 2005 for a medication refill (March 27, 2005) and for a tooth problem (March 28, 2005). He made three visits in April 2005 for ear pain (April 1, 2005), renewal of a bottom-bunk permit and pain in his left knee (April 15, 2005), and another medication refill (April 22, 2005). The next entry is a verbal order for a laboratory test (May 3, 2005).

According to Claimant’s medical records, the next time he complained about his right ankle after February 15, 2005 occurred on May 6, 2005 (see Ex. A). The AHR entry states that Claimant fell on his right ankle, there was minimal swelling and that x-rays of the ankle were ordered.

Nurse Caban-Mulverhill testified that the x-ray report dated May 19, 2005 (Ex. 9) indicates Claimant had an ununited fibula fracture. She further stated Claimant was examined by orthopedist Dr. R. Mitchell Rubinovich on June 9, 2005 (see Ex. 11). Dr. Rubinovich’s letter to Dr. Gerald Cahill at Franklin reports that Claimant “had an Inversion Injury to his Right Ankle 3 months ago” and that, upon examination, he has “full range of movement in the ankle. There is no tenderness over the distal fibula. There is no instability” (Ex. 11). Dr. Rubinovich also reported that the transverse fracture of the distal fibula below the level of the mortise “is healing in anatomic position” (Ex. 11). Another x-ray report, dated July 11, 2005, prepared by Dr. M. Browman reported that the “[p]reviously demonstrated fibular fracture shows complete fusion with a bit of residual lucency noted” (Ex. 10).

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to meet his burden, and has not established by a preponderance of the credible evidence that Defendant was negligent in connection with his accident.

To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant’s breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr. Co., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70).

The State has a duty to maintain its facilities in a reasonably safe condition in view of all the circumstances (Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]). “In connection with its operation of a gymnasium, it must use the same level of care to assure that its equipment is reasonably safe and free from hazards” (Valentine v State of New York, 192 Misc2d 706, 707 [Ct Cl 2002]; see Ebuzoeme v City University of New York, 10 Misc 3d 1079[A], 2005 NY Slip Op. 52256[U] [Ct Cl 2005]; 85 NY Jur 2d, Premises Liability, § 102). That duty extends to the State’s correctional facilities (see Manganaro v State of New York, 24 AD3d 1003 [3d Dept 2005]; Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]).

The State, however, is “not an insurer against any injury which might occur on its property” (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]; see Condon v State of New York, 193 AD2d 874, 874 [3d Dept 1993]). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds, 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd, 307 AD2d 605 [3d Dept 2003]).

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 Transportation Auth., 99 AD2d 246, 249 [1st Dept 1984], affd 64 NY2d 670 [1984]). 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, 67 NY2d 836, supra at 837).

Claimant failed to submit any proof that Defendant had actual or constructive notice of a problem with the weight equipment he was using on February 15, 2005. Mr. Ouimet testified that the equipment from which Claimant was allegedly dismounting at the time of his accident was a squat machine, not a pull-up bar, as Claimant described it. Thus, Claimant was not properly using the equipment, nor was he authorized to do so. The Court finds that Claimant failed to establish by a preponderance of the credible evidence that the exercise equipment constituted a dangerous condition that the State created, or of which the State was aware and failed to remedy, or that the State was negligent in the supervision of the exercise equipment. Moreover, Claimant failed to see, as he should have, that misuse of the squat thrust machine as a pull-up bar carries with it a risk of injury. As a result, that portion of the Claim is dismissed.

Turning to the portion of the Claim that alleges improper medical treatment, “[i]t is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, “a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice” (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]).

“The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).

In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for Claimant to meet the burden of proving that Defendant’s alleged negligence constitutes a deviation or departure from accepted practice and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Thomas v State of New York, 10 Misc 3d 1072[A], 2005 Slip Op 52230[U]).

To the extent Claimant is asserting an action premised on medical malpractice, it must fail for want of medical testimony. In the instant matter, the gravamen of Claimant’s action seeks damages for a failure to timely diagnose a fractured ankle. Given proper expert testimony, it appears quite possible to the Court that Claimant might have been able to establish a prima facie case at trial. Failure to diagnose is not so simple, however, as to be within the ambit of those matters which the Court may readily decide using common knowledge. Medical diagnosis remains as much an art as a science and it is not within the knowledge of this Court to determine at what stage a misdiagnosis becomes actionable negligence. Thus, the Court must find that Claimant in this matter has failed to establish a claim in medical malpractice.

Insofar as his Claim posits that the delay in obtaining x-rays of his right ankle constituted medical negligence, the Court finds that Claimant has failed to meet his burden of proof as to a breach of a duty of care or resultant damages. Claimant failed to provide any credible evidence that the medical treatment he received: (a) was not proper; (b) was unreasonably delayed; or (c) that any perceived delay that may have occurred exacerbated his condition. Claimant testified that he did not return to the infirmary for three months to obtain further treatment for his ankle because he feared he would be cited for abuse of medical services. Yet, as his AHR clearly illustrates, he made a number of other visits during the intervening period, apparently without fear of reprisal. As soon as Claimant’s next documented complaint about his ankle occurred on May 6, 2005, prompt follow-up measures were taken, including x-rays and an examination by an orthopedic surgeon. Moreover, there was no evidence presented that the pain he experienced would have been less, or that treatment would have been different, had the injured ankle been examined sooner.

In the absence of such evidence, the Court finds and concludes that Claimant has failed to establish by a preponderance of the evidence that the medical care provided to Claimant was not appropriate or adequate. Thus, the Court finds that no prima facie case for medical malpractice or medical negligence has been established by Claimant.

Accordingly, the State's motion to dismiss made at the conclusion of the trial, upon which decision was reserved, is now granted and the Claim is hereby dismissed.

The Chief Clerk is directed to enter judgment accordingly.

May 13, 2008
Albany, New York

Judge of the Court of Claims