New York State Court of Claims

New York State Court of Claims

SHERMAN v. THE STATE OF NEW YORK, #2009-038-102, Claim No. 113303


Case Information

1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 15, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks to recover damages for injuries he sustained when his hand was burned by a slice of hot pizza he removed from a microwave oven at Shawangunk Correctional Facility (CF) on November 10, 2006. The plenary trial of this claim was conducted on February 9, 2009 in Albany, New York. Claimant presented his testimony and the testimony of his longtime girlfriend, Donna Tirado, and New York State Department of Correctional Services (DOCS) Correction Officer (CO) Inez Brackett; defendant presented the testimony of CO Brackett. Numerous photographic and documentary exhibits were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant for his injuries.

At approximately 8:30 a.m. on Friday, November 10, 2006, claimant and Donna Tirado arrived at Shawangunk CF[2] to visit inmate Dino Caroselli, Tirado’s brother. Prior to being permitted to see Caroselli, claimant and Tirado were directed into a visitors’ waiting area where they were told by correction personnel that they were not allowed to bring any personal belongings with them into the visiting area.[3] Visitors, however, could bring cash with them into the waiting area, which could be used to purchase food and beverages from the vending machines in the visiting area. Claimant and Tirado were familiar with the security protocols at Shawangunk CF, as they had visited Caroselli approximately six weeks prior to this visit. Claimant and Tirado exited the waiting area and passed through two locked doors before entering the visiting area.

The visiting area consisted of two areas, a larger area in front and a smaller area in the back. Claimant and Tirado entered the visiting area through an entrance into the larger area, which had a desk located near the entrance where CO Inez Brackett was sitting. Claimant and Tirado proceeded through the larger area to the smaller area, where they met Caroselli. Both areas contained tables positioned so that inmates sat directly across from their visitors. The larger area contained two sets of vending machines that dispensed food and beverages, as well as microwave ovens. Napkins and paper towels were made available for purchasers of food and beverages; CO Brackett testified that napkins were provided by the “vending company”[4] and paper towels that were in paper towel dispensers near the vending machines were provided by DOCS.

At approximately 10:15 a.m., claimant purchased an uncooked piece of pizza from a vending machine for Caroselli. The piece of pizza was square in shape, measuring approximately 3 by 4 inches, with no crust and was wrapped only in cellophane, with no cardboard to support it. Claimant did not remember whether there were any heating instructions on the package. As there were no paper plates provided, claimant placed the pizza on top of several “little white napkins” and placed the pizza in the microwave oven. The napkins extended “no more than an inch” past the edges of the piece of pizza. Although claimant could not remember exactly how long he cooked the pizza in the microwave oven, he believes that he heated the pizza for “no more than” 45 seconds to a minute until it was “visibly hot” with “molten bubbles of cheese.” Claimant then removed the pizza from the microwave oven by the napkin and placed it in the palm of his right hand. As claimant stepped away from the microwave oven, molten cheese slid off the pizza onto claimant’s right index finger, burning it just below the second knuckle and the palm of claimant’s hand. Claimant was unsure whether the piece of pizza was the first or second piece of pizza that he heated up for Caroselli that day, but he had heated up several pieces of pizza for Caroselli on a prior visit. Claimant testified that there was no limit on the number of napkins he could have used in heating up the pizza and that he did not request a paper plate at any point that day for heating up pizza.

After sustaining the burn to his finger and his hand, claimant alerted CO Brackett that he had burned himself. According to claimant, CO Brackett told claimant that other visitors had previously burned themselves after heating up pizza in the microwave oven. Claimant testified that he told CO Brackett that he was in considerable pain, that he asked to see a doctor or a nurse, and that he understood that medical attention would be forthcoming. Claimant testified that a blister began to form on his right index finger and that it grew as the day progressed. Claimant testified that he was in considerable pain, that he felt a “throbbing pain” in his right hand, that ice provided some relief, but that it was hard to be comfortable. CO Brackett thereafter brought claimant bags of ice on two occasions and medicinal ointment to alleviate claimant’s pain. Claimant also testified that he went to the bathroom on “numerous occasions” and let cold water run on his hand to relieve the pain. Claimant testified that between 11:30 a.m. and noon he was made aware that he would not be seen by Shawangunk CF medical staff.

CO Brackett testified that on November 10, 2006 claimant came to her desk and informed her that he had suffered a burn and requested medical attention, although she could not remember when it was that he made that request. The 10:40 a.m. entry in the logbook[5] from November 10, 2006 indicates that claimant notified CO Brackett that he had burned his hand (Defendant’s Exhibit A). CO Brackett testified that she called “medical” and later informed claimant that he would have to seek medical attention at an “outside hospital” as he would not be seen by Shawangunk CF medical staff. The 11:40 a.m. entry in the logbook indicates that claimant “requested to have his hand look[ed] at by me[dical] if possible – Sgt [sic] Connor and medical notified. Mr. Sherman wi[ll] have to seek outside medical help” (id.). According to CO Brackett, inmates and DOCS employees were entitled to medical care by Shawangunk CF medical staff, but visitors were not entitled to such medical care and would have to obtain medical assistance from outside providers, even in emergency situations. CO Brackett testified that she brought the claimant ice on two occasions and medicinal ointment to help relieve his pain. The 10:40 a.m. entry from the logbook indicates that he requested ice and that she “got ice from kitchen + bactrin[6] [sic] from medical [sic] gave to Mr. Sherman” (id.). Finally, CO Brackett testified that she is not aware of any individual other than claimant being burned from food that was heated in the visiting area microwave ovens.

Notwithstanding that he would not be receiving medical care at Shawangunk CF, claimant and Tirado continued to visit Caroselli until just before 2:00 p.m., when visiting hours ended. Throughout the visit, claimant had purchased and heated up four or five pieces of pizza for Caroselli on November 10, 2006. After leaving the visitors’ area and clearing security, claimant and Tirado headed to their car in the parking lot, where Tirado took two photographs of claimant’s hands (see Claimant’s Exhibits 3 and 4). Claimant and Tirado thereafter drove to a restaurant in New Paltz, New York, where Tirado took another photograph of claimant’s injured hand (see Claimant’s Exhibit 2). Photographs taken in the Shawangunk CF parking lot and at the restaurant show that a blister had formed on claimant’s right index finger (see Claimant’s Exhibits 2 and 4).

Upon leaving the restaurant, claimant and Tirado unsuccessfully sought medical treatment for claimant’s blistered finger in New Paltz. Eventually, claimant purchased “bandages and triple antibiotic” from a drugstore, and treated his finger himself. At some point between 6:30 p.m. and 7:00 p.m. the blister opened up, there was “liquid all over” and the skin was torn. Thereafter, the pain that claimant was experiencing in his finger diminished significantly. Claimant testified that over the weekend he was not in much pain, that he remained concerned about potential infection, and that he continued to self-treat his finger. Claimant went to a doctor the following Monday, November 13, 2006, who diagnosed a second-degree burn, gave claimant a tetanus shot, and prescribed another cream to treat the burn. Claimant testified that the application of this prescription cream ameliorated his concerns about the potential for infection.


In this claim, claimant seeks recovery for his injuries on three theories. First, claimant characterizes the basis for defendant’s liability as “negligent service”, i.e., that defendant was negligent in failing to provide a plate upon which claimant could heat the uncooked pizza. Second, claimant asserts that defendant breached a duty to warn claimant of the dangerous condition it created by failing to provide claimant with a plate to heat the pizza. Lastly, claimant argues that defendant breached its duty to provide medical care to him.

Claimant places great emphasis on the fact that the injury-producing event occurred within the confines of a maximum security correctional facility, and he implicitly argues that defendant’s total control over the environment, or claimant’s status as a “business invitee,” imposes upon defendant some higher duty of care to claimant than would otherwise be applied. However, claimant offers no statutory, regulatory, decisional or other authority supporting a higher standard of care in the circumstances presented. Rather, the State’s duty to visitors to its correctional facilities is the same owed by any other entity to any other visitor, namely, a duty of reasonable care under all of the circumstances (see Basso v Miller, 40 NY2d 233, 241 [1976]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Brown v State of New York, 10 Misc 3d 1059[A] [Ct Cl 2005]; see also Condon v State of New York, 193 AD2d 874 [3d Dept 1993] [duty of care is not defined by plaintiff’s status]).

Claimant’s “negligent service” theory essentially argues: (1) that it is foreseeable that a person would be burned if pizza were heated in a microwave with napkins or paper towels rather than a plate; (2) that defendant allowed the pizza to be dispensed and heated but did not require the packaging to include a plate; and (3) that defendant therefore had a duty to provide paper or plastic plates upon which the pizza could be heated (see Claimant’s Post-trial Memorandum ¶¶ 15, 17). The evidence at trial, however, fails to support this theory, which is premised on the assumption that use of napkins to heat pizza created a foreseeable risk of harm from which a duty to provide a plate would arise. Other than his own conclusory and interested testimony, claimant offered no proof by expert testimony or otherwise as to how pizza should be heated up and handled after being heated, that pizza is customarily served in a particular manner, or that a plate – paper or plastic – would be safer than napkins or paper towels for heating pizza. Further, there was no credible evidence that visitors had been burned by pizza heated up in microwave ovens in the visiting area utilizing only paper napkins.[7] Indeed, claimant testified that he had used napkins to heat pizza in the visitors’ room at Shawangunk CF on several occasions, both prior and subsequent to his injury, without incident, undermining his argument that the provision of paper napkins was patently inadequate. In the absence of proof that the napkins provided were generally inadequate for the purpose of serving hot pizza, no duty to provide a different or better quality serving item arose (cf. Huppe Twenty-First Century Rests. of Am., 130 Misc 2d 736, 739 [Sup Ct 1985], affd 116 AD2d 797 [3d Dept 1986] [“The possibility that [other serving items] could have been provided does not prove that the [serving items] actually provided were below the customary or reasonable standard at the time and locality involved”]).

Claimant’s next theory contends that defendant breached a duty to warn him of the foreseeable and allegedly abnormally dangerous condition it created by failing to provide paper or plastic plates or some other firm equivalent (see Claimant’s Post-trial Memorandum ¶¶ 24-29). This argument fails for two reasons. First, as discussed above, there was no proof offered that heating pizza on napkins rather than on a plate is abnormally dangerous. Second, claimant’s injuries were caused by an open and obvious condition of which claimant was actually aware – as claimant testified at trial, the cheese on the pizza was heated by claimant to the point of being “visibly hot”, “bubbl[y],” or “molten.” “There is no duty to warn of an open and obvious danger of which the product user is actually aware” (O’Boy v Motor Coach Indus., 39 AD3d 512, 514 [2nd Dept 2007]; see Liriano v Hobart Corp., 92 NY2d 232, 241 [1998] [there is no duty to warn “where the injured party was fully aware of the hazard through general knowledge, observation or common sense . . . [because a] warning would have been superfluous given an injured party’s actual knowledge of the specific hazard that caused the injury”]). Moreover, claimant testified that he had used microwave ovens hundreds of times before, thus supporting defendant’s contention that it had no duty to warn claimant of potential danger (see Mangiafreno v Wikstrom Machs., 243 AD2d 690 [2nd Dept 1997] [no duty to warn of activity that is “ordinary and within the ken of the average person”]; Stroschine v Prudential-Bache Sec., 207 AD2d 828, 829 [2nd Dept 1994]). Claimant’s effort to impose a duty to warn because the use of napkins to heat pizza is unusual or extraordinary is unsupported by the record, and is simply unpersuasive.

To the extent that claimant’s first two theories seek to impose liability for his injuries under the rubric of products liability, it is well established that a seller may be held liable “for injury to the person . . . of a buyer . . . caused by a product which has been sold” (86 NY Jur 2d, Products Liability § 1).[8] “Persons who engage in the business of furnishing food for consumption by humans are bound to exercise care and prudence respecting the fitness of the articles furnished” (id. § 168). “Where recovery [for a defective product] is sought from a seller, it must be shown that the seller actually sold the particular product” (id. § 10; see also Hymowitz v Eli Lilly & Co., 73 NY2d 487, 504 [1989] [“In a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required”]). Furthermore, “[o]ne cannot be held liable . . . in a products liability action[] for merely directing the use of a defective product” (86 NY Jur 2d, Products Liability § 10).

At trial, claimant failed to prove by a preponderance of the credible evidence that defendant actually sold claimant the piece of pizza that caused his injury. To be sure, there is circumstantial evidence that permits an inference that defendant owned the vending machines that dispensed the pizza, as the machines were located on defendant’s property, defendant made the vending machines available to visitors and defendant’s agents permitted visitors to bring money with them into the visiting area in order to purchase items from the vending machines. However, there is more direct and weighty evidence – namely CO Brackett’s testimony that the “vending company” provided the napkins – that supports a conclusion that an outside vendor owned the vending machines. Accordingly, as claimant has not proven by a preponderance of the credible evidence that defendant owned the vending machines that sold the pizza that burned claimant, defendant cannot be held liable for his injuries under a theory of products liability.

The last theory advanced by claimant argues that defendant breached a duty to provide claimant, a visitor at a maximum security prison, with medical care after he was burned. While “[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]), the Court is unable to find any precedent establishing any statutory or common-law duty that required defendant to render medical assistance or any other aid to an injured or sick visitor at a state correctional facility (see also Huppe, supra at 740 [“with regard to the claim that defendant failed to fulfill its duty to assist plaintiffs after the coffee spilled, the court knows of no statutory or common-law duty that required defendant to render first aid or other assistance in treating (claimant’s) burns”]). Thus, claimant’s contention is without merit as a matter of law.

In sum, the preponderance of the credible evidence did not establish that the provision of napkins rather than plates was a foreseeable cause of claimant’s injury, or that defendant created a latent and abnormally dangerous condition of which it had a duty to warn. Nor did the evidence establish that defendant was the seller of the pizza, and thus there can be no recovery under a theory of products liability. Finally, neither the law nor the evidence support claimant’s contention that liability should be imposed because defendant failed to provide him with medical care for his burn. Claimant’s motion to amend the ad damnum clause in his claim, which the Court reserved upon at trial, is therefore denied as unnecessary.
Defendant is not liable to claimant for his injuries. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.

June 15, 2009
Albany, New York

Judge of the Court of Claims

[2]. Shawangunk CF is a maximum security correctional facility located in Wallkill, New York.
[3]. Visitors were permitted to store personal belongings that could not be brought into the visiting area in an assigned locker for safekeeping that was locked by a key that they could bring with them into the visiting area.
[4]. All quotations are to the Court’s trial notes or the digital audio recording of the trial, unless otherwise indicated.
[5]. As part of the duties of her job, CO Brackett was required to record daily transactions in a logbook.
[6]. The Court interprets this word to be bacitracin, an antibiotic ointment.
[7]. The Court is unpersuaded by claimant’s testimony that CO Brackett had told him that other persons had burned themselves on pizza heated up in the microwave ovens, as CO Brackett credibly testified that claimant’s burn was the only instance she knew of someone being burned by food from the microwave.
[8]. A products liability claim may assert various legal theories, including negligence, breach of warranty, fraud and strict liability (86 NY Jur 2d, Products Liability § 1). It appears as though claimant is asserting a negligence products liability cause of action.