Pro se inmate failed to establish defendant's negligence for his slip and fall on ice in a recreation pen.
|Claimant(s):||DEVON N. MILLER|
|Claimant short name:||MILLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Devon N. Miller, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Douglas R. Kemp, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 6, 2017|
|See also (multicaptioned case)|
The claim filed on May 2, 2014 alleges the claimant was injured when he slipped and fell during an outdoor recreation period while confined at Great Meadow Correctional Facility (Great Meadow). In addition, the claim alleges claimant was not provided proper medical care and treatment for the injury sustained in his fall. Trial of this matter was conducted on September 14, 2017.
Claimant testified that on March 4, 2014 he was confined to the Behavioral Health Unit (BHU) at Great Meadow. On that date, during a period of outdoor recreation in a "rec pen"(1) claimant slipped and fell on a patch of ice. Claimant had previously filed a grievance regarding the failure to provide inmates boots for outdoor recreation. The claimant testified "there was a snowstorm around that time" which had created areas of ice within the rec pen. Claimant, who was wearing what he described as slip on shoes with "no grip protection" provided by the Department of Corrections and Community Supervision (DOCCS), slipped on one of the areas of ice and fell injuring his head, neck and back.
Claimant was taken to the facility infirmary on a stretcher where he was examined by a registered nurse who later prepared an Inmate Injury Report received in evidence as Exhibit 3. Claimant was kept in the infirmary for observation overnight and released to bed rest the next morning. According to the claimant, at no time did he receive a CAT scan, MRI or X-ray to determine the extent of his injuries, nor was he provided pain medications during his overnight stay in the infirmary. Claimant was seen by a medical doctor the following morning and returned to his cell with a prescription for 600 mg pain reliever. Claimant remained on bed rest approximately one week and was later provided physical therapy both at Great Meadow and the Walsh Regional Medical Unit.
On cross-examination the claimant confirmed that he was examined by a registered nurse upon his arrival at the infirmary and by a medical doctor the following day. Although he was not provided pain medications during his overnight stay in the infirmary, he was provided medications the following day. Claimant testified he was provided physical therapy following his transfer to Marcy Correctional Facility two to three months subsequent to his slip and fall and that the pain medications provided to him were discontinued "after a couple of years."
To the extent the claim may be read to include causes of action for negligence arising from defendant's failure to both maintain the premises in a reasonably safe condition and provide adequate medical treatment without undue delay, the Court will address each cause of action in turn.
"As a landowner, the State owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], lv denied 68 NY2d 611 ; see also Preston v State of New York, 59 NY2d 997, 998 ; Gonzalez v State of New York, 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 , rearg denied 15 NY3d 820 ; Colangione v State of New York, 187 AD2d 844 [3d Dept 1992]; Rosado v State of New York, 139 AD2d 851 [3d Dept 1988]). This duty obligates the State to "take every reasonable precaution to protect those who are in its institutions" (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]; see also Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]; Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 ; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]; Rosado v State of New York, 139 AD2d 851 [3d Dept 1988]). Nevertheless, the State is not an insurer against any injury which might occur on its premises and negligence generally will not be inferred from the mere happening of an accident (Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 ). In order to prevail against a property owner for injuries resulting from a condition on its premises, it must be established that the condition was dangerous and that the owner either created the condition or had actual or constructive notice of its existence (Piacquadio v Recine Realty Corp. 84 NY2d 967 ; Gordon v American Museum of Natural History, 67 NY2d 836 ; Reid v State of New York, 61 AD3d 1063 [3d Dept 2009]; Kivlan v Dake Bros., 255 AD2d 782 [3d Dept 1998]). "[A] general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall" (Piacquadio v Recine Realty Corp. 84 NY2d 967, 969  [internal quotation marks omitted]). Here, claimant established nothing more than the fact that the recreation pen in which he was placed contained ice on which he slipped and fell. There was no proof of the size or location of the ice within the recreation pen nor proof that defendant either created the condition or had actual or constructive notice of its existence. As a result, claimant failed to demonstrate that the defendant was negligent in the maintenance of its premises.
To the extent claimant asserts defendant failed to provide him with a pair of boots, he failed to demonstrate a nondiscretionary protocol requiring the provision of boots to inmates in the winter.
With respect to claimant's cause of action for medical negligence, the law is well settled that the State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). " 'Whether the claim is grounded in negligence or medical malpractice, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case' " (Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 , quoting Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007]; see also Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ). Here, claimant failed to establish either an unreasonable delay in providing medical attention or that any such delay was the proximate or aggravating cause of his back pain. The medical records offered into evidence as Exhibit 2 are not certified and therefore inadmissible.(2) Nevertheless, Exhibit 3 entitled "Inmate Injury Report" reflects that the claimant was treated in the facility infirmary on the day of the incident and Exhibit 2, although not received in evidence, would not have supported claimant's case as it demonstrates no more than the provision of a consistent course of physical therapy. While claimant complains that no diagnostic tests were performed to diagnose his injury, expert medical evidence was required to demonstrate that the failure to order such tests was a deviation from the appropriate standard of medical care. Absent such medical evidence, the causes of action for medical malpractice and/or medical negligence must be dismissed as a matter of law.
For the foregoing reasons, the claim is dismissed.
Let judgment be entered accordingly.
November 6, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. All quotes are taken from the trial recording.
2. The Court reserved ruling on defendant's objection to the receipt in evidence of claimant's medical records because the trial was conducted by remote video conference and the Court was unable to view the exhibits during the trial. The Court has now had the opportunity to review the medical records marked as Exhibit 2 and defendant's objection to their receipt in evidence is sustained as the records are not certified and no foundation was laid for their receipt in evidence (CPLR 4518 [a], [c]).