After a video trial, defendant was found liable for negligence in failing to protect inmate from spider bite in cell at Shawangunk Correctional Facility. Pro se claimant was awarded $300.00 in damages for pain and suffering.
|Claimant short name:||FRANCE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||BRIAN FRANCE, PRO SE|
|Defendant's attorney:||BARBARA D. UNDERWOOD, ATTORNEY GENERAL
By: Douglas R. Kemp, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 27, 2018|
|See also (multicaptioned case)|
A video trial of this pro se claim for negligence was held on August 29, 2018. The claim alleges that defendant was negligent in failing to protect claimant from the foreseeable risk of spiders in his cell at Shawangunk Correctional Facility ("Shawangunk"), resulting in injuries to his head from spider bites on two separate occasions while he slept. Claimant testified on his own behalf, and the court admitted six claimant's exhibits without objection.(1) Defendant presented Deputy Superintendent of Administration ("DSA") Farah to testify at trial, and the court admitted one defense exhibit.
Claimant testified that in early September 2014, while in his cell, he was bitten on his head by a brown recluse spider and treated for the bite.(2) After that, he saw additional spiders in his cell on October 11 or 12, 2014. He complained and wrote letters but nothing was done until he was bitten again by a spider in his cell. He was removed from his cell on October 14, 2014 because he was told the cell was being treated. The occurrence of these two bites is unrefuted.
On cross-examination, claimant testified that on November 21, 2014, he made a written request to the Shawangunk plant superintendent for a list of work orders filed in September and October 2014 concerning spiders in his cell (see Exh. 4). The response from DSA Farah stated that work orders were submitted on October 4, 17 and 18, 2014 (id.). Claimant testified that the October 4 date is wrong, and copies of the work order requests contained in Exh. 4 do not include one dated October 4 (id.).
Claimant's additional exhibits provide the following information.
Exhibit 1 (grievance documents) - In a grievance filed October 2, 2014, claimant asserted that: in early September 2014, he was bitten on his head by a spider while sleeping in his cell in C-1 housing at Shawangunk; he was sent to emergency sick call, seen by a doctor, and treated; since that time, he captured and killed four additional spiders of the same type in his cell; about two weeks before October 2, Correction Officer ("C.O.") Olivo said he had put in a work order for maintenance to contact pest control (citing DOCCS Directive # 3093); claimant spoke to C.O. Olivo again on October 2 about putting in another work order; claimant suffers from "Arachnophobia"; and on October 22, 2014, the IGRC responded that claimant's "cell should be properly treated to remove/destroy spiders by the facility's contract exterminator."
Claimant appealed to the Superintendent, who found on November 14, 2014, that "[t]he grievant's cell was inspected and treated on 3 occasions based on his complaint." On November 17, 2014, claimant appealed to the Central Office Review Committee ("CORC"), stating:
"My cell was ordered sprayed on 10/9/14. It was not sprayed until 10/23/14 the first time and again on 10/28/14. This, only after I had already [been] bitten twice; once on 8/31/14 and a second time on 10/11/14. I first made the facility aware of the spider infestation in early September after being bitten the first time and afterwards seeing multiple spiders in my cell."
On March 25, 2015, the CORC accepted the Superintendent's findings, and noted: "Pest control staff inspected and treated the grievant's cell on 10/14/14, 10/23/14, 10/28/14, 1/21/15, and 2/3/15, and found no evidence of spider activity. CORC also notes that C1 housing unit is inspected once per month, including cells."
Exhibit 2 (letters and memos) - In a letter to Supt. Smith dated October 14, 2014, claimant repeated the claims made in his grievance, added that the first bite took three weeks to heal and he was bitten a second time on October 12, 2014, and requested that maintenance clear up the infestation "per DOCCS Directive # 3039 'Pest Control'." In an October 15 memorandum, DSA Walker told claimant that his letter was forwarded to Plant Superintendent Farah "last week," and the pesticide company would take care of it. Claimant responded on October 16 that: someone had put glue traps in his cell that were not recommended for spiders; he had caught and killed another spider; his request that another work order be put in had been rebuffed; other than putting down glue traps, nothing had been done; and his second spider bite was infected and painful. On October 17, Walker responded that he put in a request to have the cell "sprayed or fumigated when the schedule permits," the pesticide company looked for but did not find spiders in claimant's cell, and glue traps catch spiders. In a memorandum dated October 23, Supt. Smith wrote that claimant's cell had by then been treated, there was no "obvious evidence of an infestation," he had referred claimant to Office of Mental Health ("OMH") "as a precaution," and was advised there were "no OMH issues" (see Exh. 2). Claimant responded on October 31 that he has not seen any spiders since his cell was "baited on 10/23/14, and thereafter sprayed on 10/28/14."
Exhibit 4 - briefly discussed above, is comprised of: claimant's request to Supt. Farah for the dates of work orders to treat claimant's cell for spiders; Supt. Farah's response; and copies of documents titled "maintenance work order request."(3) The documents show that work order requests were made by Supt. Farah on October 9, 17 and 18, and the work is described as "extermination." The October 17 request shows that the "maintenance supervisor" instructed "Head Craftsman" Liberty Pest Control ("Liberty") to "Fumigate if necessary." Neither fumigation nor any other method of extermination is stated in the October 9 or 18 work order requests, and none of the requests show the actual work that was completed.
There are also discrepancies in some of the dates. Supt. Farah's response refers to claimant's "10/21/2014 letter," but claimant's letter request is dated November 21, 2014. Supt. Farah's response is dated October 24, yet the work order request dated October 17 shows it was not assigned to Liberty until October 27, which is three days after the noted completion date of October 23. The same completion date is noted on the October 18 request.
Exhibit 5 (logbook pages) - Entries show that: claimant requested an emergency sick call for a spider bite on September 2, 2014, and again on October 13, 2014; Liberty was escorted to a cell on October 14 (identifying information cut off on page) and was escorted to spray claimant's cell on October 23 and 28, 2014.
Exhibit 6 (health records) - Entries show that: claimant was treated for two separate spider bites on his head, which resulted in red swelling, drainage of pus, and pain; treatment for the first bite started on September 2, 2014, and treatment for the second started on October 16, 2014; claimant was treated with antibiotic ointment, antibiotics and dressings.
Claimant also displayed the two small scars on his bald head to the court.
DSA Ronald Farah testified that he was the Plant Superintendent at Shawangunk from 2012 to 2016. He is currently the Deputy Superintendent of Administration. In October 2014 he dealt with pest control. The facility contracted with an outside pest company, Liberty Pest Control, which came in weekly. Liberty had monitoring stations and small glue traps that they checked for insects. Writing on the traps indicated they could be used for brown recluse spiders. Shawangunk also had a work order system. Prior to August 2014, he was not aware of any other complaints about brown recluse spiders. Once he received the grievance, he submitted a work order. Liberty did not find any spiders on inspecting claimant's cell.
On cross-examination, DSA Farah testified that as of 2014, the monitoring stations were placed in the mess hall, utility closets, TV room, heating vents on the second floor and under the radiator on the first floor. The mess hall on the second floor is about 60 feet from claimant's cell. Each housing unit has about ten traps. He did not know how close the traps were to claimant's cell. He was at the facility on October 28, 2014. He recalled seeing a spider in a peanut jar, and that there was an incident, but there was no complaint. He did not recall anyone directing him to pick up a spider in a jar from Cell No. 206. He did not recall how he became aware there was a spider in a jar, just that it arrived in his office and he called Liberty, which determined it was a wood spider. In his June 30, 2016 sworn affidavit, he attested there had been no other spider complaints at Shawangunk and he had not noticed any spiders since he became the plant superintendent in 2012.
Defense Exhibit A contains copies of two memoranda to claimant. The first, dated October 17, 2014, is from then DSA M. Walker, in response to claimant's October 16, 2014 letter. The second memorandum, dated October 23, 2014, is from Supt. Joseph T. Smith. Both memoranda are contained in claimant's Exh. 2 and are described above.
There is no question that the State has a duty to maintain its facilities, including its correctional facilities, in a reasonably safe condition in view of all the circumstances, including the likelihood of injuries to others, the seriousness of the injury, and the burden of avoiding the risk (see Miller v State of New York, 62 NY2d 506, 513 ; see also Preston v State of New York, 59 NY2d 997, 998 ; Basso v Miller, 40 NY2d 233, 241 ; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). That duty does not, however, render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247, 252-253 ), and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 ; see also Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]; Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]).
In order to establish a breach of this duty, a claimant must establish that (1) a dangerous condition existed; (2) the defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (3) the condition was a proximate cause of the accident (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable (see Villar v Howard, 28 NY3d 74, 80  [finding facility need not foresee specific harm]). "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ). Claimant need not demonstrate that "the precise manner in which the accident happened, or the extent of injuries, was foreseeable" (id.; see Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986]).
Defendant maintains that by utilizing the services of Liberty Pest Control, it took reasonable measures to prevent harm to claimant from spider bites, and the risk of spider bites was not reasonably foreseeable. The court agrees with defendant as to the first bite, but not the second. Claimant did not present prima facie evidence that before he was bitten the first time in 2014 (on either August 31 or September 1), he was at risk of sustaining a spider bite of any kind, or that the State acted unreasonably in its pest control maintenance of Shawangunk. He presented no evidence that spiders were present, and his grievance documents established that the facility's "contract exterminator" inspected claimant's housing unit and the cells in it once a month (see Exh. 1).
However, claimant's second spider bite implicates a different analysis. He presented prima facie documentary evidence that defendant had actual notice of the risk, and failed to take reasonable steps to alleviate the risk before claimant was bitten again more than a month later. Claimant was treated for his first bite beginning September 2, 2014, yet the submitted work order requests show that DSA Farah did not put in a request for Liberty until October 9, and Liberty did not complete the work until October 14, two days after claimant sustained the second bite (see Exhs. 1-2, 4-6). In the interim, as claimant's October 2 grievance alleged, he captured and killed five more of the same type of spiders, and he asked C.O. Olivo to put in a work order for pest control to spray for spiders (see Exh. 1). Claimant also established that his cell was not fumigated until October 27, at the earliest (see Exh. 4), and that the spiders disappeared once the facility started spraying his cell regularly.
The record contains no evidence that claimant's cell was treated prior to the second bite, instead suggesting that claimant was imagining the spiders, and that Liberty's monitoring activities were sufficient. However, as shown by his health record, claimant did not imagine the spider bites, and the regular monitoring activities did not prevent them. Defendant's only witness, DSA Farah, was demonstrably mistaken in his testimony. Claimant established on cross-examination that the witness was not entirely correct in a 2016 affidavit swearing that he had not seen spiders at Shawangunk since he started working there in 2012, and he was not aware of other complaints about spiders. DSA Farah admitted at trial that after a spider in a peanut jar arrived in his office on October 28, 2014, he called Liberty. He denied being aware of a complaint associated with the spider, but he did acknowledge there was an "incident" and did not dispute that the incident involved Cell No. 206, located in the same housing unit as claimant's cell, Cell No. 211. DSA Farah's testimony, explaining why there were no descriptions of the completed extermination work on the work orders, was credible, but he did not rebut claimant's evidence that the first treatment of claimant's cell was on October 14.
Claimant established defendant knew there was a dangerous condition in his cell after he sustained the first bite, and defendant failed to undertake reasonable measures to alleviate the condition in a timely manner and that defendant's negligence in failing to treat the cell for spiders substantially caused the second spider bite, resulting in claimant's pain and suffering and a visible scar on his head.
After listening to and observing the witnesses, and reviewing the exhibits, the court finds defendant liable for negligence. In doing so, the court notes that this is a very specific fact pattern and highly documented record and this decision is limited to those matters discussed above. It is predicated on the fact that claimant was confined to a small area, which he could not avoid, which had been demonstrated to be infested. It is not so much the spider bite itself, which gives rise to liability, but the lack of timely remedial action by the State after the first bite. Accordingly, the court awards claimant $300 for pain and suffering. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). The Clerk of the Court shall enter judgment accordingly.
September 27, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
1. The court denied admission of two additional exhibits claimant introduced, information from the internet about brown recluse spiders and affidavits from two inmates at Shawangunk. These documents contained inadmissible hearsay.
2. Although the type of spider is not a material issue in the context of the claim, the court takes judicial notice of documents in the court file showing that defendant failed to respond to claimant's notice to admit, thereby admitting the spiders were "brown recluse" as a matter of law (see CPLR 3123). Defendant also failed to respond to claimant's notice to admit the authenticity of documents, inclusive of claimant's trial exhibits.
3. Three are dated 10/9/14. Only one shows it was assigned (to Liberty Pest Control) and completed (on 10/14/14).