Claimant awarded $750 for past pain and suffering and for scarring caused when he was struck by a window in his cell that was secured only by a shoelace.
|Claimant(s):||ANTHONY LA PUMA|
|Claimant short name:||LA PUMA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ANTHONY LA PUMA, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Elizabeth Gavin, Heather Rubinstein
Assistant Attorneys General
|Third-party defendant's attorney:|
|Signature date:||December 12, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for personal injuries he sustained when a window in his cell at Green Haven Correctional Facility (CF) struck his head on January 5, 2012. The trial of this claim was conducted on November 30, 2017 and October 18, 2018 at Green Haven CF in Stormville, New York. Claimant presented his testimony and offered nine exhibits that were received into evidence. Defendant presented no witnesses and offered no exhibits.(1) After listening to claimant testify and observing his demeanor as he did so, and upon consideration of that evidence and the documentary evidence received at trial and the applicable law, the Court concludes that defendant is liable to claimant in the amount of $750.00.
On January 5, 2012, claimant was housed in a cell in J-Block at Green Haven CF that had a window located directly above the head of his bed. The window was hinged at the bottom and opened from the top downward into the cell. Claimant testified that the window lacked bars on the sides of the window frame to restrict the open window from swinging downward into the cell, that the only means of keeping the window from falling downward was a shoestring that was attached to the window, and that the windows in the majority of cells in J-Block were equipped with metal chains (instead of a shoelace) for this purpose. Claimant testified that his bed was placed directly under the window because of the layout of the cell, and that the head of the bed was required to be beneath the window so that his head was visible to correction officers during nightly checks.
Claimant testified that on January 5, 2012 he was laying on his bed reading a book when the window "popped open,"(2) breaking the shoestring, and the unsecured window swung down and struck claimant on the top of his head, snapping his head back and cutting his scalp. Claimant testified that he went to the medical office where he received 9 stitches to close a two inch scalp laceration, a tetanus shot and analgesic balm for his neck (see Claimant's Exhibit 8), which was photographed (see Claimant's Exhibits 2-3). Claimant testified that for weeks after the incident he experienced "a little sensation" in his neck that was controlled with ibuprofen. The Court viewed claimant's bald scalp at trial and observed a faint indented scar approximately two inches in length.
Claimant testified that defective windows in J-Block had previously caused injuries to inmates, and that he filed a grievance after his accident in which he requested an investigation be conducted to "determine why the windows in J-housing unit keep coming lose [sic] and causing injuries to prisoners" (Claimant's Exhibit 5). Claimant testified that he was informed by an inmate representative on the Inmate Grievance Committee (IGRC) that problems with the windows in J-Block were an "ongoing issue" and that other grievances had been filed about the issue. In a split decision, the inmate representatives to the IGRC recommended that the facility "maintain facility windows to prevent any further injuries" (Claimant's Exhibit 7). Claimant testified that the shoestring was attached to the window when he moved into the cell and that he did not know who had attached the shoestring. Claimant further testified that prior to his accident, he had informed Correction Officer (CO) O'Neil about the defective window in his cell, and that every Saturday morning corrections personnel performed bar and window checks in his cell and other cells in J-Block.
It is well-established that the State has a duty to maintain its premises "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 , cert denied 412 US 939 ). To establish liability on his claim, claimant must prove by a preponderance of the credible evidence that a dangerous condition existed, that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition, and that the dangerous condition was a proximate cause of claimant's injuries (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 ).
Claimant has proven by a preponderance of the credible evidence that the defective window constituted a dangerous condition because it lacked safety bars or a metal chain and was secured only with a shoestring, which was clearly inadequate to properly restrict the window from swinging downward. Claimant's credible and uncontradicted testimony that he previously informed CO O'Neil about the defect and that correction officers did weekly checks of his window establishes that defendant's agents had actual notice of the defective condition, or that they should have known about the condition and may thus be charged with constructive notice of the defective condition. The evidence further demonstrates that the defective window was the proximate cause of claimant's injuries, and although defendant's answer asserts that claimant was culpable and "caused or contributed to the happening of the accident" (Verified Answer, ¶ 3), neither proof nor argument relevant to claimant's alleged comparative negligence was offered at trial. Therefore, the Court finds defendant 100% liable for claimant's injuries.
Having considered, compared and contrasted prior awards for past pain and suffering for injuries and scarring, including one arising from a nearly identical fact pattern (see Rivera v State of New York, UID No. 2006-030-010 [Ct Cl, Scuccimarra, J., June 13, 2006] [Inmate on J-Block in Green Haven CF inmate struck on top of head by window secured with a shoelace and left with a scar awarded $500 in damages]), and having considered all of the testimonial and other evidence adduced at trial, including an inspection of claimant's scar, the Court awards damages for claimant's past pain and suffering and for the scarring on his head in the amount of $750.00.
Claimant has proven his claim of negligence by a preponderance of the credible evidence, and defendant is 100% liable to claimant for injuries sustained, and claimant is awarded damages in the amount of seven hundred fifty dollars and no cents ($750.00).
To the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a (2).
Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk of the Court of Claims is directed to enter judgment in accordance with this Decision.
December 12, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. At the trial proceedings on November 30, 2017, defendant's motion to adjourn the trial to present a witness who became unavailable on the day of trial was granted over claimant's objection. When the trial reconvened on October 18, 2018, defendant was unable to produce that witness and rested without calling any witnesses.
2. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.