New York State Court of Claims

New York State Court of Claims
GORDON v. THE STATE OF NEW YORK, # 2018-041-504, Claim No. 122585, 122682, 122683, 123003, 125536, 125734, 126025, 126026, 126047, 126049, 126137


After trial, the Court finds that defendant negligently caused the ten (10) inmate-claimants to suffer frostbite by conducting a lengthy pat frisk procedure on February 7, 2013, outdoors, in freezing conditions while the inmate-claimants were not permitted to wear their hats, gloves and scarves and were required to grasp a metal chain-link fence with bare hands during the entire process. Inmate-claimant Weaver is awarded $100,000 for past pain and suffering and the nine remaining claimants are each awarded $75,000 for past pain and suffering. No award is made to the inmate-claimants for future pain and suffering.

Case information

UID: 2018-041-504
Claimant short name: GORDON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122585, 122682, 122683, 123003, 125536, 125734, 126025, 126026, 126047, 126049, 126137
Motion number(s):
Cross-motion number(s):
By: Elmer Robert Keach, III, Esq.
Maria K. Dyson, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Michael C. Rizzo, Esq.
Anthony Rotondi, Esq.
Timothy P. Mulvey, Esq.
Assistant Attorneys General
Third-party defendant's attorney:
Signature date: August 14, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


This trial decision addresses eleven joined claims which arose from a common incident, and overwhelmingly common facts, involving events on the evening of February 7, 2013 at Bare Hill Correctional Facility (Bare Hill). That evening at approximately 6:40 p.m., while between 15 and 20 inmates were being escorted from the mess hall to their dorms, one of the inmates, inmate Jenkins, was cut with a sharp object. The inmates were being escorted out-of-doors. The air temperature was 5 degrees Fahrenheit with a wind of 10 to 15 mph, resulting in windchill temperatures of between minus 10 degrees Fahrenheit and minus 13 degrees Fahrenheit.

As a result of the assault on inmate Jenkins, he was transported to Bare Hill's medical facility. The remaining inmates, after being unsuccessfully questioned by guards about responsibility for the assault, were lined along a metal chain-link fence and ordered by the attending correction officers to assume a "pat frisk" position, hands interlocked into the fence, bent at the waist with legs spread, to be searched for weapons. No weapons were ultimately found.

The detained inmates were searched one-by-one by three correction officers (CO Hough, CO Hughes and CO LaBarge) and the process was overseen by a supervising sergeant (Sgt. Demmon). By reason of these events, eleven claims were filed, alleging intentional tort and/or negligence due to the claimants having suffered frostbite to their fingers and hands as a result of their detention and search. A unified trial of the joined claims was conducted February 6, 7, 8, 9, 10, 14, 15 and 16, 2017.

Despite repeated and sustained efforts by claimants' counsel to produce claimant Rashid Evans, claimant Evans failed to appear at trial. Accordingly, on the last day of trial, the parties stipulated to sever Mr. Evans claim, Claim No. 126137, from the remaining claims. The Court then granted defendant's motion to dismiss Claim No. 126137 for failure to prosecute, pursuant to Court of Claims Act § 19 (3) and Court of Claims Rule 206.15. At trial, the parties had previously stipulated that the remaining ten claimants had suffered some magnitude of frostbite to their fingers and hands on the evening of February 7, 2013.

Claimants' allege that defendant intentionally and/or negligently conducted an excessively lengthy pat frisk search out-of-doors in freezing temperatures, at night, and did so while requiring the claimants to be bare-headed without scarves and gloves. Claimants further allege that during the entire time all of the detained inmates were being searched they all were forced to grab and hold a metal chain-link fence bare-handed, and that defendant's actions caused each claimant to sustain frostbite.

Defendant contends that its actions were neither an intentional tort, nor negligent, and that its actions were within its discretion to maintain staff, institutional and inmate safety by immediately searching for a weapon used by an unknown assailant to assault inmate Jenkins, and further contends that its search process was necessitated by having only four employees available to oversee and conduct a pat frisk of between 15 and 20 inmates.

While none of the claimants testified with complete credibility, or without embellishment or contradiction, each of the ten testifying claimants told a substantially consistent account of the events of February 7, 2013 once the inmates were detained after inmate Jenkins was assaulted.

Consistent details, credibly described, included the following:

The four guards involved in the pat frisk procedure testified at trial. The Court found the following testimony to be incredible:

Dr. Christopher Van Tilburg, a witness for claimants with expertise in wilderness and emergency medicine, and meteorologist Alicia Wasula, gave credible and persuasive testimony about the effect the conditions and circumstances of February 7, 2013 would have upon individuals exposed to the elements. Their testimony established the following:

1. An air temperature of 5 degrees Fahrenheit and winds of between 10 and 15 mph resulted in windchill temperatures of between minus 10 degrees Fahrenheit and minus 13 degrees Fahrenheit;

2. Metal is a "superior conductor";

3. Direct contact with metal will accelerate the onset of frostbite, compared to simple exposure to the elements;

4. Direct contact with metal, given the same length of exposure, will result in a more severe condition of frostbite, compared to simple exposure to the elements; and,

5. Direct contact with metal under these conditions can result in the onset of first degree frostbite in as little as five minutes and in the development of second degree frostbite in between ten and twenty minutes.

There was no disagreement between the parties about the stages of frostbite. First and second degree frostbite, also commonly referred to as "superficial frostbite," involves the freezing of tissue, the discoloration of skin and the blistering of skin. Third and fourth degree frostbite, also commonly referred to as "deep frostbite," involves more severe blistering of the skin, more deeply frozen tissue and permanent tissue loss.

Dr. Brian Connolly, the Bare Hill health service director, testified that given the weather conditions of February 7, 2013, exposed skin contacting metal would result in frostbite "significantly faster because metal is a very good conductor of heat," developing, "probably in the order of minutes." Based upon both his examination of the claimants and his review of their medical records, Dr. Connolly opined that, of the ten remaining trial claimants, six had suffered second degree frostbite on February 7, 2013 and four had suffered first degree frostbite on February 7, 2013.

Dr. Daniel DiChristina, an orthopedic surgeon, testified for defendant, having conducted medical examinations of all of the claimants except for claimant Sanchez-Martino. Dr. DiChristina additionally reviewed the claimants' ambulatory health records and took their medical histories. The doctor, upon cross-examination, agreed that all of the claimants had suffered second degree frostbite.

At the time of his examination, Dr. DiChristina observed no muscle atrophy of the hand or forearm in any of the claimants. Further, after noting no "objective evidence of sequelae of the frostbite," the doctor testified that frostbite had resolved in all of the individuals he examined. He also concluded that two or three of the men "exhibited a normal grip strength pattern," and that the balance of the men "manipulated" the grip strength examination in order to falsely demonstrate a loss of grip strength. Finally, Dr. DiChristina observed no abnormal range of motion in the men and observed no physical impairment of their hands.

No competent expert medical proof was presented to establish that any of the claimants suffered any degree of frostbite more severe than second degree frostbite. Moreover, trial proof established that the claimants had physically recovered, that their recoveries had been attained within a limited time period and that the claimants' current physical conditions revealed no remaining impairments of their fingers or hands.

A correctional facility superintendent has discretion to "provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities" (see Correction Law § 137[2] and § 18[2]; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). While courts should, generally, defer to prison authorities in matters of internal prison security (Matter of Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]), the law further instructs that "[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]).

Based upon the trial evidence, including the substantially credible testimony of the claimants, and the delineated incredible testimony of the guards involved in the pat frisk of the detained inmates, the Court credits the claimants' accounts of the manner and circumstances under which they were detained and searched during the pat frisk on the evening of February 7, 2013. More specifically, the Court finds that the claimants were not permitted to wear their hats, gloves and scarves at any time during the pat frisk procedure of all of the detained inmates, and that they were required by the guards to grasp the metal chain-link fence with bare hands during the entire process. It is manifestly clear that the manner in which these claimants were detained and searched on the evening of February 7, 2013, given the conditions, was both unreasonable and negligent.

Indeed, defendant's expert witness, upon cross-examination, conceded that defendant failed to meet its duty of care to claimants on the evening of February 7, 2013. Defendant's expert witness, John Rourke, served with the Department of Corrections and Community Supervision for thirty-two years, including as a lieutenant and as a captain (for eleven years) before retiring in 2006. As a lieutenant, Mr. Rourke had served as a watch commander, the highest ranking person in his assigned correctional facility during his given tour of duty. As captain, he was "like the clearing house for the inmates grievance program."

During Mr. Rourke's cross-examination, the following exchange transpired:

"Q. Would you agree with me that the inmates in question - - or excuse me, the officers in question on February 7, 2013, fell short of their duty of care to the inmates that were involved in the frisks on the fence to protect them from cold temperatures?

A. I agree with that a lot better than I can agree with negligent. They - - the duty and care sounds better than negligent.

Q. All right. And so, just so we're clear, you agree that those corrections officers failed in their - - failed in their responsibilities - - well let me step back. Withdraw.

You would agree with me that those corrections officers did not meet their duty of care that evening, don't you?

A. Yes." (Undated transcript, page 52, lines 9-21, of Mr. Rourke's testimony provided February 16, 2017, referenced, when given, in the dated transcript of February 16, 2017, page 44, line 24).

Cognizant as the Court is that prison authorities must be given due discretion in maintaining safety and security in state prisons, that discretion is neither limitless nor may it be utilized to absolutely immunize defendant, whatever the circumstance, from liability. Were it so, would it have been appropriate for the guards to require all of the inmates to strip naked prior to being searched? Were it so, would it have been appropriate for the guards to require the inmates to grasp the metal chain-link fence with bare hands continuously during the course of a two hour search? Clearly, under both scenarios, not.

The evidence adduced at trial showed that a number of alternate search methods, given the conditions the evening of February 7, 2013, would have been reasonable, without unduly compromising personnel or institutional safety and security, including:

1. Marching the inmates, with spaced intervals between each, to a nearby indoor location (as close as less than a minute's distance), in order to conduct a comprehensive search; or,

2. Requiring the inmates, while being searched, to lay prone on any immediately adjacent pavement uncovered by snow; or,

3. Allowing each inmate on the fence having a hat, scarf and gloves, before and after being searched, to wear his hat, scarf and gloves, instead of requiring all of the inmates to bare-handed grip the metal chain-link fence in freezing temperatures during the entirety of the search of all of the inmates; or,

4. Requiring all of the inmates to stand, legs splayed, with hands interlocked on top of or behind their heads or with arms outstretched in a "T" position while being searched, again requiring only the individual being searched to remove his hat, scarf and gloves during the period of his individual search.

The Court further concludes that a number of defendant actions and inactions, and other factors, undermine defendant's position, including the following:

1. A large number, if not a majority, of the 15 to 20 detained inmates sustained frostbite, which undercuts an argument, for example, that claimant Bertrand was more sensitive or prone to frostbite than was claimant Gordon than was claimant Salas, and so forth;

2. Although trial proof clearly established that CO Hughes had contemporaneously created a list of the detained inmates after the inmates' identification cards had been collected, that list, without explanation, was neither produced during discovery nor was it produced at trial:

a. As such, the list CO Hughes created was either lost, secreted or destroyed;

b. The lost, secreted or destroyed list would have been an important investigative and security tool in establishing a defined universe to help potentially identify the assailant of inmate Jenkins and to prosecute the commission of a violent felony crime and a most serious breach of correctional facility rules;

c. The lost, secreted or destroyed list precludes an ability to determine what percentage of detained inmates suffered frostbite on February 7, 2013, whether ten out of ten, ten out of fifteen or ten out of twenty;

d. The lost, secreted or destroyed list necessarily eliminated the ability to identify a number of other individuals who may have observed the events of that evening, may have been able to report additional information and may have been able to provide important and additional trial testimony;

3. Despite it being obvious that a good number of inmates had endured, and reported, severe cold weather injuries that night, and despite the fact that several COs testified to having never before encountered inmate frostbite in decades of correctional facility service, other than reporting inmate Jenkins' attack, no unusual incident report memorializing the events of February 7, 2013 was prepared; and,

4. Despite the fact that several inmates reported to Bare Hill's medical facility that evening, complaining of swollen and discolored fingers and hands, and that several claimants credibly testified that photographs of their injuries were taken that evening, no such photographs were produced during discovery or at trial, raising two, equally troubling, issues - - if taken, those photographs have either been lost, secreted or destroyed, and if not taken, raises the question of why not.

By reason of all of the foregoing, the Court finds defendant negligent and 100% culpable for the frostbite suffered by all ten claimants on February 7, 2013.

The claimants' testimony regarding the current conditions of their fingers and hands, related either to pain or functionality, was uniformly general, vague and unpersuasive, most commonly mentioning a numbness or achiness felt during cold weather. Dr. Van Tilburg testified generally about potential long-term consequences of having endured frostbite. He neither examined any of the claimants, nor did he opine regarding the current or future condition of any individual claimant.

Moreover, no medical proof was presented to establish that the current condition of any of the claimants, whatever it may be, is the result of having incurred frostbite in 2013 or that any future condition of any of the claimants will develop by reason of having incurred frostbite in 2013. To the contrary, Dr. DiChristina credibly testified that none of the claimants (other than claimant Sanchez-Martino, who he did not examine) presented any objective manifestations of having endured frostbite and that none were observed to have any continuing impairment by reason of having suffered frostbite in 2013.

Finally, belying any claim for future damages, no claimants but two sought medical treatment for their fingers and hands after early 2013 (and none from 2014 on), whether still in defendant's custody or after release from custody, and further, when being transferred between defendant facilities after February 2013, several claimants denied, during medical intake, having any existing medical condition that required defendant's attention or treatment. A number of claimants are currently working full time, without restriction. Several engage in recreational activities, such as playing basketball and doing push-ups and pull-ups.

By reason of all of these factors, none of the claimants proved by a preponderance of the credible evidence entitlement to future damages as a result of defendant's negligence of February 7, 2013.

Each of the testifying claimants endured a common ordeal under identical circumstances. All testified to nearly identical consequences in the several weeks following February 7, 2013, including intense pain, skin discoloration, blistering and cracked skin, loss of skin and fingernails, burning and stinging sensations, stiffness, numbness and swelling, loss of strength and function resulting in an inability to self-sufficiently clean, dress or feed himself or to self-sufficiently use toilet facilities, and of being restricted from access to the mess hall and program/vocational training. Defendant's examining physician, Dr. DiChristina, agreed that all of the claimants had suffered second degree frostbite. Other than claimant Jamel Weaver, there is little, if anything, to distinguish the pain and suffering one claimant suffered compared to any one of his fellow claimants, and to do so would be nothing more than attempting to draw modest distinctions for the mere sake of doing so. Accordingly, the Court will award damages to each claimant, other than claimant Jamel Weaver, in an equal amount.

Mr. Weaver, distinct from the other claimants, required medical treatment for his condition of frostbite for a substantially longer period of time. While the majority of the claimants neither sought nor received medical treatment for frostbite after February 2013, Mr. Weaver complained of and received continuing treatment for ongoing pain, tingling, numbness and damaged fingernails several times in March, April, June and July 2013.

Claimant Jamel Weaver is awarded $100,000 for past pain and suffering. The nine remaining claimants are each awarded $75,000 for past pain and suffering. For the reasons previously discussed, no award is made to the claimants for future pain and suffering. The amount(s) of the filing fee(s) paid, if any, pursuant to Court of Claims Act § 11-a (2), may also be recovered.

To summarize:

A) Claim No. 126137 was DISMISSED previously by Decision and Order filed March 10, 2017.

B) Claim No. 123003 is awarded $100,000 for past pain and suffering.

C) Claim Nos. 122585, 122682, 122683, 125536, 125734, 126025, 126026, 126047 and 126049 are each awarded $75,000 for past pain and suffering.

All motions not previously decided are hereby denied.

Let judgments be entered accordingly.

August 14, 2018

Albany, New York


Judge of the Court of Claims

1. As spelled in claim.

2. Hereafter, unless citing case law or unless otherwise indicated, all quotes are from the trial transcript.