New York State Court of Claims

New York State Court of Claims

VAN EVERY v. THE STATE OF NEW YORK, #2009-029-059, Claim No. 112798


Synopsis


Defendant found liable for failing to properly clean broken glass from claimant’s cell resulting in laceration. Damages of $250 awarded.

Case Information

UID:
2009-029-059
Claimant(s):
KASSIE VAN EVERY
Claimant short name:
VAN EVERY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112798
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
KASSIE VAN EVERY, pro se
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Bedford Hills Correctional Facility, seeks damages for a September 16, 2005 incident in which she cut her foot when she stepped on a piece of glass in her cell.


Claimant testified that in early September 2005 (September 4, 2005 at about 2:15 p.m., according to the claim), a softball broke one of the panes in her cell window. She stated she informed a correction officer that the window pane was broken and an inmate porter came and cleaned up the broken glass and put a piece of plastic over the opening. Two weeks later, on September 16, some glass flew out of the window frame when she opened the window and later that day, while cleaning her cell, claimant stepped on a piece of glass and it became lodged in her foot. After stepping on the glass, she examined the window frame closely and noticed that there were small shards of glass remaining in the frame. She was taken to the medical unit where the nurse noted “minute point of entry – possible glass in wound,” soaked the foot in water with epsom salt, applied Betadine and instructed claimant to continue the soaks for three days (Exhibit 2). There was no medical proof or testimony beyond the one-page Injury Report completed on the date of the injury (id.).

Claimant advised that the window was not repaired until two weeks after her injury, as evidenced by a work order dated September 29, 2005 (Exhibit A).

Correction Officer Stephen Irwin, the Fire and Safety Officer at Bedford Hills, explained that the windows at Bedford Hills consisted of a row of four-inch glass panels that were fixed, with a row of four-inch glass panels that opened, below the row of fixed panels. Claimant stated that she opened the panel below the broken panel when the piece of glass flew out of the frame of the broken panel. Irwin agreed that when a window panel is broken, all of the pieces of glass should be removed from the frame immediately.

There was no dispute as to the underlying facts. The court finds that one of the windows in claimant’s cell was broken by a softball, that an inmate porter was assigned to clean the broken glass and did so on the date it was broken, but did an incomplete job and left some pieces of glass in the frame, that the broken window pane received no further attention until almost a month after it was broken and that twelve days after it was broken, claimant stepped on a piece of glass that became lodged in her foot, necessitating the treatment described in the Inmate Injury Report.

Although the State of New York is not the insurer of the safety of inmates in its correctional facilities (Boettcher v State of New York, 256 AD2d 882; Bowers v State of New York, 241 AD2d 760; Condon v State of New York, 193 AD2d 874), it owes its inmates the duty to use reasonable care to maintain its property in reasonably safe condition in view of all the relevant circumstances (Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). There was no explanation of why it took almost a month to repair the window and, in particular, why the initial cleanup of the broken glass was performed in such a shoddy manner, resulting in pieces of glass remaining in the frame. The court understands that such tasks are the responsibility of inmate porters, but reasonable care and attention to the matter would seem to require that the area be inspected by a correction officer to see that a reasonable effort had been undertaken to remove all of the broken glass and there is no indication that such was done in this case. The court finds that defendant fell short of its duty of care and additionally finds that there is no basis in the record to attribute any comparative fault to the claimant.

As noted, the evidence as to damages was limited to the Inmate Injury Report indicating that soaks were prescribed to dislodge the glass from claimant’s foot. There was no indication of any further treatment or consequences.

Accordingly, the court finds that claimant was damaged in the sum of $250.00 and the Clerk of the Court is directed to enter judgment in favor of claimant for said amount and further providing for the return of any filing fee actually paid.


September 9, 2009
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims