Correction Officer Kevin Russell works at Bare Hill Correctional Facility near
Lake Placid in Upstate New York. On Tuesday, May 11, 2004, he reported for duty
at 6:55 A.M. for a tour ending at 3:00 P.M. He worked at B-1 Dormitory, an open
barracks, with cubicles for sleeping quarters. There were 40 single cubicles and
20 double bunk cubicles.
Claimant, who was housed at B-1 Dormitory and assigned to a top bunk, testified
that while climbing down from his bunk that morning, he slipped and fell,
hitting his back on the locker to the right of his bed. An inmate assigned to a
top bunk uses the three lockers in his cubicle to reach the top bunk. The
lockers and the bed were not secured to the floor. A large locker was located at
the foot of the bed, a small one across from the bed and another large locker
next to the bed (Exhibit 4). Claimant testified that he requested a bottom bunk
permit when he was first received at BHCF and when he was moved to B-1
Dormitory. No instructions were given to inmates on how to climb onto or off the
top bunk. No ladders were provided, for security reasons, but there was a chair
in the cubicle that an inmate could use if he chose to do so. Claimant testified
that he did not use the chair because the Correction Officers did not like the
inmates to move the furniture.
Terri Donner, R.N., a nurse at BHCF, testified that Claimant was seen by Dr.
Whalen of the Medical Department for hypertension on Friday May 7, 2004. On that
day Claimant weighed over 300 lbs (Exhibit 3, p 14), so Dr. Whalen issued a
“bottom bunk permit” (Exhibit 2).
Upon review of his medical records (Exhibit 3), she testified that claimant
never requested a move to a top bunk. Claimant weighed 297 lbs when he entered
the prison system in March 2004, thereby not meeting the weight requirement for
a bottom bunk. The Population Control Department (Population Control) moves
inmates when such permit is issued. Donner testified that if the physician
wanted her to call Population Control immediately, he would have written
“stat” on the chart and handed it to her. Since hundreds of charts
pass across her desk daily, she typically finishes some charts the next day.
Claimant’s chart reflects that Population Control was notified on Saturday
May 8, 2004 (Exhibit 3, p 14). Claimant testified that he gave Correction
Officer Russell a copy of the bottom bunk permit on May 7, 2004. Correction
Officer Russell testified that even if Claimant handed him a copy of such permit
on May 7, 2004, he would not move an inmate until Population Control gave him
the authority and the direction to do so. He also testified that no moves occur
on weekends unless there is a fight or a medical emergency.
Claimant testified that Correction Officer Russell saw him fall and came over
to his cubicle. This testimony differs from Exhibit B, an Inmate Grievance Form
dated two days after the accident, which states “At approximately 6:55
slipped and fell from top bunk 42. I went and informed the 7-3 B-1 C.O. Russell
that I needed emergency medical attention.” Claimant’s trial
testimony about how he climbed down also differed from his testimony at two
At trial he testified that he
placed a foot on the small locker and a foot on the big locker to the right of
his bed, slipped and “speared” his back on the big locker
the “X” on Exhibit 5; Exhibit 3, p 14). However, at his
depositions, he testified that he slipped off the big locker and hit the small
According to Correction Officer Russell’s log for Tuesday May 11, 2004
(Exhibit A), Claimant came to Russell’s desk complaining of back pain at
8:00 A.M. If Claimant notified him that he had fallen, Russell would have noted
it in the log, and there was no such notation. At 8:16 A.M. the Population
Control Department called to have Claimant moved to a lower bunk. The Ambulatory
Health Record also notes that the fall, according to Claimant, occurred at 6:55
A.M. that day.
The trial of this claim was bifurcated. The claim sets forth a cause of action
that sounds in negligence.
It is well settled
that the State has a duty to use reasonable care to protect inmates in its
correctional facilities from the foreseeable risk of harm (Basso v
, 40 NY2d 233 ; Davis v State of New York
, Claim No.
106378, June 23, 2004, Midey, J. [UID No. 2004-009-129], citing Flaherty v
State of New York
, 296 NY 342 (1947); Casella v State of New York
121 AD2d 495 [2d Dept 1986]. It is equally well settled, however, that the State
is not an insurer of inmate safety (Davis
, citing Hirsh
v State of New York
, 8 NY2d 125 ). In a case similar to the instant
action, the Second Department held that a delay of three days after the issuance
of a lower-bunk permit did not constitute a breach of a duty owed to that
Claimant (Levin v State of New York
, 32 AD3d 501(2d Dept 2006)].
Here, defendant did not violate its directive for the issuance of a lower-bunk
permit if an inmate weighed more than 300 lbs.
The issue before the Court is whether the implementation of the permit four days
after it was issued, was unreasonable, and thus a breach of duty to Claimant.
The permit was issued by a physician on a Friday without direction to the nurse
that it must be handled immediately. The nurse notified Population Control on
Saturday which did not process bunk moves over the weekend unless it was an
emergency. Claimant was moved Tuesday morning, coincidentally after Claimant
allegedly fell but before the medical unit was notified. The delay of four days,
which was two business days, given the weekend between the issuance and the
move, is not an unreasonable delay. Claimant has failed to demonstrate that
defendant breached its duty to protect him from a foreseeable risk of harm.
Further, the inconsistencies about how Claimant fell and how the fall was
reported to Correction Officer Russell, as stated in his trial testimony, the
two depositions, the inmate grievance form, and the Ambulatory Health Records,
leads the Court to question whether he fell at all. Claimant’s testimony
about requesting a bottom-bunk permit before May 7, 2004 was vague and
unsubstantiated by documentation. “The credibility of the witnesses . . .
the truthfulness and accuracy of the testimony, whether contradicted or not, and
the significance of weaknesses and discrepancies are all issues for the trier of
facts” (Herring v Hayes, 135 AD2d 684 [2d Dept], citing Sorokin
v Food Fair Stores, 51 AD2d 592, 593 [2d Dept 1976 ]).
Based upon the foregoing, the Court finds that Claimant failed to prove his
claim by a preponderance of the credible evidence.
The claim is hereby dismissed. All motions not previously ruled upon are
Let judgment be entered accordingly.