Following Trial, Court finds that Claimant failed to establish that Defendant was responsible for his slip and fall on ice or that he received inadequate medical care.
|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Luis Gonzalez, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Charles Lim, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 3, 2020|
|See also (multicaptioned case)|
Pro se Claimant, Luis Gonzalez, failed to establish, by a preponderance of the credible evidence, that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on November 15, 2019, with the parties at Clinton Correctional Facility in Dannemora, New York, and the Judge at the Court of Claims in Albany, New York. At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim, and the State's Answer. Claimant submitted into evidence 25 documents (Exs. 1-24, and 26(1) ). The Court also reserved its decision on the State's objections to the introduction into evidence of Claimant's Exhibit 25 (a document obtained from the internet regarding weather conditions in Malone, New York in February 2015). Upon due consideration, the Court now sustains the objection to Exhibit 25 and it is not admitted into evidence. The State submitted into evidence four documents, Exhibits A, B, D, and E). The Court also reserved its decision on Claimant's objection to the introduction into evidence of Defendant's Exhibit C (a memorandum from Sergeant Conto to Lieutenant Johnston dated February 11, 2015 regarding Claimant). Upon due consideration, the Court now sustains the objections to Exhibit C and it is not admitted into evidence. Claimant testified on his behalf and the State called two witnesses, Correction Officer (hereinafter, "CO") Chad Clark, and Tanie Harrigan, R.N.
Claimant testified that, on the evening of February 8, 2015, at approximately 6:30 p.m., he was walking back to his dormitory from the mess hall at Bare Hill Correctional Facility (hereinafter, "Bare Hill") when he slipped and fell on ice. Claimant stated that he reported the incident to the M-1 housing officer, which was his housing unit, and requested to go to sick call. He stated the housing officer told him that, if he went to sick call and was not "bleeding or dying," he was going to be sent to the Special Housing Unit (hereinafter, "SHU"). Thus, Claimant told the officer he did not wish to go to sick call. Claimant testified that, the next morning, he was in pain and his ankle was swollen, so he went to sick call. He said that the staff provided him with crutches but did not take an x-ray of his ankle. Two days later, on February 11, 2015, he was called to the clinic, x-rays were taken, and he was informed that his ankle was fractured in three places (see Ex. 9). He stated that he was moved to a new dorm, however, he did not see a doctor until February 17, 2015, when a cast was put on his ankle, six days after the x-rays were taken. He also stated that he did not receive any pain medication and he did not see a specialist for his ankle. He said that his ankle constantly hurts him. He has trouble walking, sitting, and standing. Prior to the injury, he was able to exercise, but now he cannot.
On cross-examination, Claimant stated that he fell about 20 feet from his dorm, that there were no witnesses to his fall, and that he did not report the incident to the CO in the shack near where he fell. He only reported the incident to the M-1 housing officer, after he walked back to his dormitory.
Nurse Harrigan testified that she is employed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") at Bare Hill as a Nurse Administrator. The witness was shown Exhibit A, Claimant's DOCCS medical chart. She stated that Claimant went to emergency sick call regarding his right ankle at 8:30 a.m. on February 9, 2015. The nurse who examined Claimant noted that he had soft tissue swelling and discoloration of his foot. He also had decreased range of motion of his right foot. He was given crutches, was told not to put weight on his right foot, and was provided with medical restrictions (Ex. A, p 46). She further stated, based upon a review of the Exhibit, that x-rays were ordered on February 9, 2015 and were taken on February 11, 2015 (id., p. 77). The witness stated that, according to DOCCS policy and procedure, if a patient shows no obvious sign of deformity and the pulse is normal, as it was for Claimant, then an x-ray can wait until the next date that the x-ray technician is at the facility. That is why the x-rays were taken on February 11, 2015, even though they were ordered on February 9, 2015. The witness also stated that a doctor reviewed the x-rays the day they were taken (see, id.). Nurse Harrigan further stated that it was acceptable for Claimant to wait six days following the x-rays to get a cast put on his ankle. Claimant was kept non-weight bearing during the time period. The doctor who reviewed the x-rays on February 11, 2015 would have requested an orthopedic consult for Claimant, and it takes a few days to get an appointment, according to the witness.
Nurse Harrigan also reviewed several entries for May 17, 2016 (Ex. A, pp. 10-11). At that time, Claimant was complaining that his pain medication (Mobic) was not strong enough and that he had pain in the right ankle. The nurse noted that Claimant was able to flex and extend his right foot and that there was no swelling. It was also noted that Claimant was not using his cane properly and that he was "basically carrying it" (id., p. 11). The entries further noted, on May 17, 2016, that Claimant requested that his prescriptions be refilled, and that Claimant had his prescription for Mobic refilled on April 20, 2016 and it was for 60 pills. The nurse had the area sergeant bring Claimant's medications to the medical unit. It was found that Claimant had 113 Mobic pills in the bottle. The medical chart also noted that Claimant stated he renewed the Mobic prescription "to help my case" (id., p. 10). The nurse said that Claimant's prescription was not refilled because he had 113 pills, which, in her view, indicated that Mr. Gonzalez was not taking his medication as prescribed.
CO Clark stated that he is employed by DOCCS and has worked at Bare Hill as a CO for nine years. He testified that he was the M-1 Dorm CO on the 3:00 p.m. to 11:00 p.m. shift on February 8, 2015. He stated that Claimant did not show the witness his ankle after he allegedly fell that night because, had he done so, the CO would have noted the interaction in his logbook, especially, if Claimant had requested to go to sick call. The witness identified Exhibit E as a copy of the February 8, 2015, 3:00- 11:00 p.m. shift logbook and there is no record of Claimant having reported that he fell.
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 ). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850, 851 ; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "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," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 ; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 ). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]).
To establish a prima facie case of negligence in a slip-and-fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 ; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]).
The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315 [3d Dept 2007]).
"The critical issue to be resolved is whether, under the prevailing conditions, the State fulfilled its duty to take appropriate measures to keep the [roadway/pathway] safe" (Goldman v State of New York, 158 AD2d 845, 845 [3d Dept 1990], appeal dismissed 76 NY2d 764 ; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept 2007], quoting Pappo v State of New York, 233 AD2d 379, 379 [2d Dept 1996]).
The standard of reasonableness in cases involving snow and ice also must be assessed, however, "with an awareness of the realities of the problems caused by winter weather" (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]), so that a landowner is not obliged to take corrective action to remedy hazardous snow and ice-related conditions during an ongoing storm, or for a reasonable time thereafter (Sherman v New York State Thruway Auth., 27 NY3d 1019, 1020-1021 ; Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 ; Ruck v ISS Intl. Serv. Sys., 236 AD2d 702, 702 [3d Dept 1997]). Claimant bears the burden of showing that the State failed to exercise due care to correct a dangerous condition within a reasonable time after the cessation of the weather (Marcellus v Littauer Hosp. Assn., supra at 681).
In Correa v State of New York, UID No. 2009-013-506 (Ct Cl, Patti, J., Oct. 23, 2009), the Court quoted from Crabtree v State of New York (Ct Cl, Claim No. 85882, Bell, J., March 11, 1994) as follows:
[I]t is virtually impossible to clear all snow and ice from areas … in northern portions of New York in the wintertime. The fact that an inmate falls on correctional facility premises does not render the State liable if the conditions existing at the time of the accident were not so unusual, dangerous or different from the conditions ordinarily prevailing during the winter months in the locality (citations omitted).
Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 ; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 ; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. The Court finds that Claimant failed to establish his Claim, by a preponderance of the credible evidence, because he did not establish that a dangerous condition existed, or, assuming that one did exist, that Defendant either created the dangerous condition, or had actual or constructive notice thereof, and failed to alleviate the condition within a reasonable time.
Mr. Gonzalez failed to establish, by a preponderance of the credible evidence, that a dangerous condition existed where he fell. While he stated he fell on ice, he did not present any witnesses to his fall, nor did he present any witnesses regarding the allegedly-icy condition of the walkway.
Assuming, arguendo, that there was a dangerous condition, the Court further finds that Claimant failed to establish, by a preponderance of the credible evidence, that Defendant either created the dangerous condition or had notice thereof and failed to alleviate the condition within a reasonable time. There is no evidence that the State created the dangerous condition. Claimant, likewise, failed to show that the State had constructive notice of a dangerous condition.
Based upon all the foregoing, the Court concludes that Claimant failed to establish his cause of action that Defendant negligently maintained the walkway.
The Court will now address Claimant's cause of action alleging that he received inadequate and untimely medical care for his fractured ankle. When the State engages in a proprietary function, such as providing medical care, it is held to the same duty of care as private actors engaging in similar functions (Schrempf v State of New York, 66 NY2d 289, 294 ; see Sebastian v State of New York, 93 NY2d 790, 793 ). Thus, it 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 ). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 ). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).
In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for a claimant to meet the burden of proving that a defendant's alleged negligence constitutes a deviation or departure from accepted practice, and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 ).
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify, and observing their demeanor as they did so. Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received for his fractured ankle. Mr. Gonzalez' sincerity notwithstanding, the Court finds that the acts or omissions of which Claimant complains cannot be assessed by the trier of fact on the basis of its common, everyday experience. Thus, in the absence of any testimony from a medical expert that the medical treatment Claimant received for his fractured ankle was improper, or that the medical care, or lack thereof, somehow exacerbated the fracture or pain Claimant experienced, the Court determines and concludes that Claimant has failed to establish, by a preponderance of the credible evidence, that the medical care provided to him for the fractured ankle was not appropriate or adequate. The evidence established that when Claimant went to the clinic on February 9, 2015, the nurse followed DOCCS protocol and procedure in examining Claimant's ankle, providing him crutches, advising him not to put weight on it, and ordering x-rays for the next date an x-ray technician was at Bare Hill, which was two days later. It was further established that a doctor read the x-rays the same day they were taken, that the doctor determined that Claimant's right ankle was fractured, and an appointment was made for Claimant to see an orthopedic specialist six days later to have a cast put on the ankle, which was also in accordance with DOCCS protocol and procedure. Further, Claimant failed to establish that Defendant failed to provide him pain medication. Indeed, Exhibit A (p. 10) established that Claimant received his pain medication, however, he was not taking it. Thus, the cause of action alleging medical malpractice, and negligence relating to the medical care Claimant received for his fractured ankle is dismissed.
Based upon all the foregoing, the Court concludes that Claimant failed to establish his Claim, by a preponderance of the credible evidence, and the Claim is dismissed.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, which have not been addressed herein, are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
August 3, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
1. At the conclusion of a video trial, upon prior agreement of the parties, the Assistant Attorney General delivers the trial exhibits to the Court in Albany, when he/she returns to the Attorney General's Office. Here, Mr. Lim delivered the exhibits to the Court, and, by letter dated February 4, 2020, the Court advised the parties that Ex. 26 was not included. The Court requested that the parties check their respective files to see if one might have inadvertently retained the document. By letter dated March 4, 2020, Mr. Lim stated that he did not have the document but did provide a copy of the three-page Snow Removal Log, which, according to the Court's notes and the audio recording, was the document marked as Ex. 26. By letter dated March 5, 2020, the Court advised Claimant of the above information. After some confusion on Claimant's part regarding Ex. 26, the Court received a letter from Claimant on April 20, 2020, dated March 22, 2020, that Ex. 26 is the three-page snow removal log. Therefore, the Court accepts and marks into Evidence, as Ex. 26, the three-page Snow Removal Log submitted by Mr. Lim in his letter dated March 4, 2020.