The State's motion for summary judgment dismissing claimant's claim to recover for injuries sustained when he fell in the shower area of a correctional facility is granted. It was determined that the claim did not contain a slip and fall cause of action and defendant met its burden to demonstrate that claimant failed to raise a triable issue of fact on the negligence cause of action. Defendant met its burden on the other causes of action for negligent hiring, retention, training and supervision; intentional and negligent infliction of emotional distress; and for unlawful discrimination and retaliation in violation of the Human Rights Law and that claimant failed to address these causes of action in his opposing affidavit.
|Claimant short name:||PARSONS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BROWN HUTCHINSON, LLP
BY: William M. Swift, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 16, 2021|
|See also (multicaptioned case)|
On June 22, 2017, claimant Ralph Parsons, a former incarcerated individual, filed a claim seeking to recover for injuries to his left hip, which he allegedly sustained when he fell in the shower area at Gowanda Correctional Facility on February 4, 2017. Mr. Parsons alleges that Department of Corrections and Community Supervision (DOCCS) officials were negligent in failing to send him to a flat facility with handicapped accessible showers that included safety features to prevent falls. Defendant filed its verified answer on July 14, 2017. Now before the Court is defendant's motion seeking summary judgment. For reasons stated below, the Court will grant the motion.LAW
Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ), with issue-finding rather than issue-determination the focus of the Court in reviewing the submissions (Sillman, supra at 404). To obtain such disfavored relief a movant must "establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). Once a movant has satisfied that burden the party opposing the motion must show facts sufficient to require a trial (CPLR 3212 [b]; Friends of Animals, supra at 1067-1068; Zuckerman v City of New York, 49 NY2d 557, 562 ). Summary judgment is appropriate in negligence cases where there are no factual issues that require a trial (see McLeod v State of New York, 8 Misc3d 1009 [A], ).ALLEGATIONS
The claim alleges that Mr. Parsons sustained injury as a result of "[n]egligence, including, but not limited to, negligent employment, retention, training, and supervision; intentional infliction of emotional distress; and negligent infliction of emotional distress" (Affirmation in Support of Motion for Summary Judgment of Carlton K. Brownell, III, dated July 21, 2021 [Brownell affirmation], exhibit B [claim], para 2). The claim also seeks recovery for unlawful discrimination and retaliation in violation of the New York State Human Rights Law, Title II of the Americans with Disabilities Act (ADA) (42 USC § 12131, et seq.) and § 504 of the Rehabilitation Act of 1973 (29 USC § 794 [a]), as well as for civil rights violations of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution (id.).
The claim states in detail the manner in which the claim arose (claim, para 4). Claimant alleges that he was disabled due to a severely arthritic left hip, that during a prior DOCCS admission he was housed at a single-level facility with handicapped accessible accommodations, and that when he was reincarcerated following a parole violation DOCCS failed to provide him with reasonable accommodations, despite his numerous requests (id.). The claim alleges further that Mr. Parsons slipped and fell while showering because DOCCS failed to provide him with reasonable accommodations (id.).
Claimant's verified bill of particulars expands upon the allegations of negligence in the claim (Brownell affirmation, exhibit E [claimant's verified bill of particulars]).(1) Defendant argues that claimant's verified bill of particulars seeks to add a new "slip and fall" cause of action, which is improper and untimely because it goes beyond the allegations of negligence in the claim and it was served more than 90 days after the claim arose. For reasons explained below, the Court agrees.FACTS
Mr. Parsons' guilty plea to an April 5, 2014 aggravated DWI charge led to his incarceration later that year (Brownell affirmation, exhibit G [excerpts of examination before trial of Ralph Parsons taken October 22, 2019] [Parsons deposition], p 12). During that incarceration, claimant requested a transfer from Gowanda to a flat facility because of difficulties he experienced ambulating and climbing stairs caused by his left hip (id. at pp 12-15; Brownell affirmation, exhibit I [Request for Reasonable Accommodation]). Mr. Parsons initially injured his left hip in 2010 or 2011 (Parsons deposition at pp 40-41, 43-44). Claimant's request was granted and he was transferred to Wyoming Correctional Facility, a flat facility that had a handicapped accessible shower stall with bars on the wall and a shower seat (id. at pp 16-17). Claimant was released from Wyoming, but he was reincarcerated about seven months later for a parole violation (id. at pp 18-19, 21).
After he was reincarcerated following his parole violation, Mr. Parsons was transferred to Gowanda where DOCCS registered nurse Marjorie Taft performed his intake health assessment on December 22, 2016 (Brownell affirmation, exhibit H [excerpts of examination before trial of Marjorie Taft taken May 6, 2021] [Taft deposition], pp 12, 19-20, 46, 48-49 and exhibit L [Health Screening for Intrasystem/SHU Transfer]). During that assessment, Mr. Parsons reported that he "left Gowanda for reasonable accommodations last time" he was incarcerated (Brownell affirmation, exhibit L [Ambulatory Health Record Progress Note]); Taft deposition at pp 44-45). Ms. Taft testified that an individual who was granted a reasonable accommodation during a prior incarceration must complete a new request form upon reincarceration (Taft deposition at pp 47-48). Ms. Taft signed a medical permit/pass for Mr. Parsons when she performed his intake health assessment, which provided him with additional time to complete movements (id. at pp 50-51; Brownell affirmation, exhibit L [Medical Permit/Pass]).
Mr. Parsons testified that he did not complete a reasonable accommodation form or ask to be transferred to a flat facility at any time during his year-long DOCCS readmission following his parole violation (Parsons deposition at pp 25-27, 60-61). Claimant testified that he did not request a transfer because he was only planning on being incarcerated for a year for his parole violation (id. at pp 26-27, 61).
Mr. Parsons testified that he was wearing shower shoes when he fell on what he described as the slippery floor in the shower area at Gowanda on February 4, 2017 (id. at pp 28-30). Claimant testified that he took seven or eight steps from the window sill before he fell, but that he had not yet reached the shower head (id. at p 32). No one witnessed claimant's fall and he did not report it to DOCCS officials until the following day (id. at pp 29-30, 32-35). Mr. Parsons was seen at the infirmary on February 6, 2017, and he was taken to an outside hospital for evaluation (id. at pp 35-36, 38). Although claimant's X rays were negative for fracture, hip replacement surgery was recommended and performed later that month (id. at p 39; Brownell affirmation, exhibit F [certified DOCCS medical records from Mar. 22, 2006 through Dec. 22, 2016], Bates Nos. 000045, 000220). Hip replacement surgery had been recommended to claimant by three different physicians before his February 4, 2017 fall (Parsons deposition at pp 49, 51-52, 56-57).ANALYSIS
The Court will begin by analyzing the negligence cause of action. Defendant argues that in connection with prior motion practice (motion No. M-96320, cross motion No. CM-96368), this Court found that the claim does not contain a "slip and fall" cause of action (Brownell affirmation, exhibit M [decision and order, Sampson, J., dated Feb. 18, 2021, filed Feb. 22, 2021]). The Court's prior decision and order, which granted defendant's motion for a protective order, in part, does not expressly make that finding, but does reference "reasons stated on the record during the course of oral argument" (id. at p 2). During argument, defendant posited that its motion for a protective order should be granted because the claim does not contain a "slip and fall" cause of action, and a new theory of liability may not be added by way of a bill of particulars. This Court granted defendant's motion for a protective order with regard to those discovery demands seeking information related to the condition and maintenance of the shower area where claimant fell.
The Court finds that the claim does not contain a traditional "slip and fall" cause of action, and any attempt to add such a cause of action by way of the bill of particulars is improper. The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial (B. & F. Leasing Co. v Ashton Cos., 42 AD2d 652, 653 [3d Dept 1973]). A bill of particulars may not "add or substitute a new theory or cause of action" (id.). A fair reading of the claim reveals that it asserts several specific causes of action, all of which are based upon DOCCS' alleged failure to provide Mr. Parsons with reasonable accommodations for his disability. Court of Claims Act § 11 (b) requires that claimant state the nature of his claim, which has been interpreted to require that a statement "be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). The Court finds that the allegations in the claim neither support nor provide notice to the State of a traditional slip and fall cause of action, and the attempt to add a new theory of liability in the bill of particulars is improper. In opposition to defendant's motion, claimant argues that defendant has failed to satisfy its burden of proof in two respects. Claimant's first argument is that defendant failed to demonstrate that there was a policy in place that required him to rerequest a reasonable accommodation to be transferred to a flat facility with handicapped accessible showers. Ms. Taft testified that an inmate was required to rerequest a reasonable accommodation upon reincarceration. There is no proof to the contrary, only speculation. Moreover, it is undisputed that Mr. Parsons was aware of the procedure to follow to request a reasonable accommodation and that he elected not to make such a request when he was reincarcerated following his parole violation. The Court finds that claimant has failed to demonstrate that there is a question of fact as to whether this policy existed.
Defendant argues in further support of its motion that it cannot be liable for this policy based upon the doctrine of qualified immunity, which was pled as an affirmative defense in its answer (Brownell affirmation, exhibit C [answer], para EIGHTH). It was held in another Court of Claims action that alleged ADA violations for the failure to transfer a disabled individual, "that matters of security, classification and transfer of inmates fall within the broad discretion of the Commissioner of Correctional Services" and that "[t]he discretionary determinations of correction officials in fulfilling their responsibility for the safety, security and control of correctional facilities has been recognized as quasi-judicial in nature, and subject to absolute immunity where conducted in compliance with governing statutes and regulations" (Carlson v State of New York, 34 Misc3d 242, 251 ).(2) The Court finds that DOCCS implementation of a policy that requires a person claiming to be disabled to rerequest a reasonable accommodation upon reincarceration to be an exercise of discretion that is subject to qualified immunity.
Claimant's second argument is that defendant has failed to demonstrate that its failure to provide a shower equipped with safety features was not a proximate cause of his fall. Claimant testified that he had not yet reached the shower head at the time of his fall. Given that the location of his fall was prior to reaching the shower stall, the lack of a handicap accessible shower stall with bars on the wall and a shower seat was clearly not the proximate cause of his fall. In any event, claimant's attempt to create a question of fact regarding the issue of causation relies on a theory of liability that the negligent failure to provide safety features caused his fall, which this Court has rejected as beyond the scope of the claim. Instead, based upon the allegations of negligence in the claim, it is DOCCS' alleged failure to transfer Mr. Parsons to a flat facility that claimant alleges is the proximate cause of his injury. Claimant's allegation of negligence in the claim regarding causation is academic based upon the Court's finding that DOCCS is not liable for implementing the policy at issue based upon the doctrine of qualified immunity.
The Court finds that defendant has met its burden of demonstrating its entitlement to judgment as a matter of law on the negligence cause of action. In opposition, claimant has failed to raise a triable issue of fact.
The Court also finds that defendant has met its burden of demonstrating its entitlement to judgment as a matter of law with regard to the remaining causes of action in the claim, which are addressed briefly below. Claimant did not address these causes of action in its opposition papers and, thus, has failed to demonstrate the existence of a material fact that would preclude granting defendant summary judgment with regard to these causes of action.
The claim asserts a cause of action for negligent hiring, retention, training and supervision. "Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency" (Fils-Aime v Ryder TRS, Inc., 40 AD3d 917-918 [2d Dept 2007]). A claimant may not prevail on a negligent hiring cause of action where the alleged employees were acting within the scope of their authority (Watson v Strack, 5 AD3d 1067, 1068 [4th Dept 2004]). It is only where an employer is not vicariously liable for the torts of its employee that it may be held liable under theories of negligent hiring, training and supervision. In his affirmation, defendant's counsel admits that the DOCCS employees who were allegedly negligent were acting within the scope of their employment (Brownell affirmation, para 28). The Court finds that defendant has demonstrated its entitlement to summary judgment with regard to the negligent hiring, retention, training and supervision cause of action.
The claim also asserts causes of action for intentional and negligent infliction of emotional distress. Intentional infliction of emotional distress causes of action against the State are prohibited on public policy grounds (Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986]. "A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety" (Dobisky v Rand, 248 AD2d 903, 905 [3d Dept 1998]). There is no indication that defendant's conduct unreasonably endangered Mr. Parsons' physical safety; a transfer to a flat facility was not requested and unreasonably denied or delayed. Defendant is entitled to summary judgment with regard to the intentional and negligent infliction of emotional distress causes of action.
As indicated above, the claim alleges that Mr. Parsons was subject to unlawful discrimination and retaliation in violation of the New York State Human Rights Law, Title II of the ADA and § 504 of the Rehabilitation Act of 1973. The New York State Human Rights Law(3) makes it unlawful for specific entities to discriminate against persons in protected classes, including those with disabilities.(4) This law does not apply to individuals incarcerated in correctional facilities (Matter of Outman v Annucci, 49 Misc3d 1129, 1134 [Sup Ct, Albany County 2015]). Even if it did, however, Mr. Parsons did not rerequest an accommodation and there is no indication, let alone any proof in admissible form, that he was subjected to unlawful discrimination based upon his alleged disability.
Assuming arguendo that claimant may assert a claim for alleged ADA violations in the Court of Claims (see Carlson, supra), said causes of action are generally analyzed identically to § 504 of the Rehabilitation Act of 1973 (Henrietta D v Bloomberg, 331 F 3d 261, 272 [2d Cir 2003]). One element that must be proven to prevail upon causes of action premised upon alleged violations of these statutes is that claimant was denied the opportunity to participate in or benefit from defendant's services, programs or activities, or that he was otherwise discriminated against by defendant by reason of his disability (id.). The Court finds that because Mr. Parsons was aware of the procedure to be followed to request a reasonable accommodation for his disability and he elected not to make such a request, he cannot as a matter of law demonstrate that he was denied the opportunity to participate in or benefit from defendant's services or programs. The Court similarly finds no evidence that Mr. Parsons was discriminated against by reason of his alleged disability.
Claimant alleges no facts in support of a cause of action for retaliation. Moreover, it has been held that "there is no cognizable cause of action for retaliation" on behalf of an inmate in the Court of Claims (Williams v State of New York, UID No. 2016-038-107 [Ct Cl, DeBow, J., April 18, 2016]).(5) Defendant is entitled to summary judgment on the retaliation cause of action.
Lastly, claimant alleges violations of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. The Court of Claims does not have jurisdiction over claims alleging deprivations of United States Constitutional rights because such claims are governed by 42 USC § 1983 and the State is not a person amenable to suit under that statute (Brown v State of New York, 89 NY2d 172 ). As such, defendant is entitled to summary judgment with regard to claimant's cause of action alleging violations of the United States Constitution.
Based upon the above, it is hereby
ORDERED, that Defendant's motion for summary judgment is granted in its entirety and the claim is dismissed.
November 16, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of Motion for Summary Judgment, dated July 21, 2021, filed July 26, 2021;
2. Affirmation in Support of Motion for Summary Judgment of Carlton K. Brownell, III, dated July 21, 2021, with exhibits;
3. Attorney Affirmation of William M. Swift, dated September 15, 2021, filed September 20, 2021; and
4. Reply Affirmation in Support of Motion for Summary Judgment of Carlton K. Brownell, III, dated September 27, 2021, filed October 4, 2021.
1. In the verified bill of particulars, Mr. Parsons alleges that defendant was negligent in: failing to post proper warnings as to the dangerous and defective showers; creating a hazardous condition; failing to equip the shower stalls with safety features, including grab bars, railings, benches and non-slip mats; failing to repair the hazardous condition; permitting the dangerous condition to exist; failing to properly inspect the showers; and failing to properly train its employees responsible for inspecting and maintaining the showers (id., response to para 5).
2. In Carlson, claimant's cause of action based upon the alleged delay in transferring him after his request for a reasonable accommodation had been approved survived. By contrast, here, Mr. Parsons did not request a transfer during his reincarceration.
3. As codified at Executive Law § 290 et seq.
4. The Human Rights Law prohibits unlawful discrimination by employers, employment agencies, licensing agencies, labor union, places of public accommodation, educational institutions, persons leasing or selling housing, private nursing homes, convalescent homes, homes for adults, intermediate care facilities and fire departments (see Executive Law § 296).
5. Unpublished decision and orders may be found on the Court's website atwww.nycourts.gov/courts/nyscourtofclaims/.