Opinion
# 2015-029-061 Claim No. 122630 Motion No. M-86606 Cross-Motion No. CM-86707
09-08-2015
ASBERY v. THE STATE OF NEW YORK
GREGORY ASBERY, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Sherine F. Cummings, Assistant Attorney General
Synopsis
The underlying incident was a major electrical fire on April 18, 2011 at Sing Sing Correctional Facility. Claimant and other inmates were trapped for hours in unventilated locked cells that were filled with allegedly toxic smoke, then made to breathe noxious fumes from power-generating equipment. Claimant's allegations, and reasonable inferences drawn from them, as construed in his favor, establish that the State's violation of its duty to protect him and the other inmates from the fire and ensuing smoke proximately caused injury. Defendant established that some, but not all of the alleged actions and non-action were an exercise of discretion. The court grants, in part, the cross-motion to dismiss. The court denies, in part, claimant's motion to compel documents.
Case information
| UID: | 2015-029-061 |
| Claimant(s): | GREGORY ASBERY |
| Claimant short name: | ASBERY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122630 |
| Motion number(s): | M-86606 |
| Cross-motion number(s): | CM-86707 |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | GREGORY ASBERY, pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Sherine F. Cummings, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 8, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pro se to compel discovery from defendant, and defendant cross-moves to dismiss the claim for failure to state a cause of action based on governmental immunity. The motions are opposed.
In the claim filed pro se, claimant alleges that at about 1:20 a.m. on April 18, 2011, he was awakened in his cell at Sing Sing Correctional Facility by the smell of smoke and the sound of other inmates screaming. The claim seeks damages for injuries arising from defendant's alleged negligence in leaving the inmates, specifically claimant, locked in their cells for four hours before evacuating them to a smoke-free area. The alleged injuries include, inter alia, coughing, headaches, dizziness and claustrophobia.
The Claim
The claim alleges negligence on the part of correction officers in responding to the fire. The initial claim, the bill of particulars, and claimant's affidavit opposing the cross-motion allege the following material facts:
The Bill of Particulars amplifies the original claim, and in assessing a motion to dismiss under CPLR 3211 for failure to state a cause of action, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
At approximately 1:20 a.m. on April 18, 2011, claimant awoke coughing. He smelled smoke and heard inmates screaming "fire," "open the windows, I can't breathe," and "open the cell, let us out." He tried turning on the lights in his cell but they were not working, so he used a lighter and saw that he was surrounded by thick smoke. At that point he started to scream. After about half an hour, he heard the sound of keys and the familiar voice of an officer he knew as Lieutenant "Mahia." The lieutenant told the inmates to calm down, and that the windows would be open in a moment. The windows were not opened. Other officers told them there was no power so the cell doors could not be opened, but they would try to get keys to open them manually. The doors were not opened until approximately three hours later.
Claimant was unsure of the spelling.
While claimant and other inmates were locked in their cells with closed windows, thick smoke poured in. One officer told claimant and other inmates to wrap a wet towel around their noses and mouths to help them breathe, but it only helped for awhile. At one point, the fire chief on duty told the lieutenant that the smoke was dangerous to the inmates, and he needed permission for him and his team of firefighters to bust out the windows and create some ventilation. The lieutenant refused. Locked in their smoke-filled cells, inmates had trouble breathing, some had headaches and asthma attacks, and were nauseous. It was later determined that the fire was electrical.
OSHA and other regulations require that penal institutions post supervisory personnel along exit routes to allow a fast exit response, and that guard personnel be trained in emergency evacuation procedures and be prepared to unlock any doors. Contrary to those requirements, no officers were assigned to exit routes, the cell doors were not opened for hours, and the correctional staff did not know what to do. There did not appear to be any emergency evacuation plan, and fire drills were nonexistent.
Once the cell doors were opened, hundreds of inmates were crowded into a darkened gym with only one correction officer. Fights broke out and some inmates were hurt. Sing Sing's medical staff did not see the majority of the inmates who had been stuck in the smoke-filled cells, and those that were seen, inclusive of claimant, were told only to blow into an apparatus to measure breath. No blood tests were done to determine whether toxins and chemicals such as PCBs released by electrical fires were present. Officials at Sing Sing said the inmates were fine, but authorized sick leave for many officers.
In addition to the negligence of Sing Sing correctional staff in responding to the fire, after claimant was returned to his cell, he and other inmates were negligently exposed to noxious fumes coming from machinery set up below in an effort to restore power. The inmates complained and asked the guards to close their now-opened windows to keep the fumes out, but nothing was done for days.
Claimant alleges that resulting from the fire and its aftermath he suffers from shortness of breath, headaches, dizziness, hoarseness, claustrophobia and post-traumatic stress disorder (PTSD).
Discussion and Rulings
The court will first consider the cross-motion to dismiss as its resolution in defendant's favor would render the motion to compel moot.
Cross-Motion to Dismiss
Defendant argues in its cross-motion to dismiss that: the claim is barred by governmental immunity because the operation of a prison is traditional governmental action, and claimant has not established the existence of a special duty owed to him by the State; and even if claimant could establish the existence of a special duty, the claim is barred by governmental immunity because protection of the inmates from fire requires the exercise of discretion. In its Reply, defendant argues that claimant's assertion of a special relationship fails because "[t]he special relationship analysis is only required when there is a ministerial governmental action"; and the prison's fire-fighting actions were discretionary governmental functions and thus barred by governmental immunity.
Claimant argues, and alleges, that: the State owed him a special duty; the State failed to adequately train correction officers in fire evacuation procedures, and particularly in the opening of cell doors manually; the State was unprepared for the situation; and the State's response to the fire violated OSHA regulation § 1910.36(d).
On a motion to dismiss for failure to state a claim, the initial inquiry is whether the claim on its face states a cause of action (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). In other words, can claimant "succeed upon any reasonable view of the facts stated" (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 [1995]). The allegations of the complaint must at this stage of the litigation be deemed true and construed in claimant's favor, affording him the benefit of every reasonable inference (Leon v Martinez, 84 NY2d 83, 87-88, 638 NE2d 511, 614 NYS2d 972 [1994]), the very limited object being to ascertain whether any cognizable claim for relief is made out (id.). If there is a discernible claim, that is where the inquiry must end; the difficulty of its proof is not the present concern.
Claimant's allegations and reasonable inferences therefrom plead negligence by the State arising from the prison's: lack of an adequate emergency fire evacuation plan; failure to adequately train its correctional staff in the emergency evacuation of inmates locked in their cells when there is no electrical power; and failure to prepare for, and to protect inmates from, an electrical fire releasing abundant toxic smoke. Claimant also alleges negligence by the State arising from correction officers': lengthy delay in evacuating claimant and other inmates from their smoke-filled cells; refusal to grant the Fire Marshall permission to break cell windows for ventilation; failure to provide adequate medical attention; and failure to close claimant's cell window to keep out fumes from machinery set up to restore power.
The court disagrees with defendant that the State had no duty to claimant under the circumstances alleged. The control and maintenance of correctional facilities are generally functions of the government, and by statute there must be "provide[d] such measures as [. . .] deem[ed] necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein" (Correction Law § 137[2]; see Correction Law § 70[b][2] and [3] [duty to maintain correctional facilities with due regard to safety and security of inmates and their right to humane treatment]). Specifically as to situations involving fires, New York Correction Law § 142 (2015), titled "Fire in facility," provides,
"Whenever by reason of any correctional facility, or any building contiguous to such facility, being on fire, there shall be reason to apprehend that the inmates may be injured or endangered by such fire, or may escape, it shall be the duty of the superintendent of such facility to remove such inmates to some safe and convenient place, and there confine them until the necessity of such removal shall have ceased."
Defendant does not dispute that claimant was an inmate in danger of being "injured" by fire, which the court construes as including injuries from smoke.
Liability for a claim that a governmental agency negligently exercised a governmental function "turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public" (Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]; see Laratro v City of New York, 8 NY3d 79 [2006]; Cuffy v City of New York, 69 NY2d 255 [1987]). A special relationship can be formed in three ways: "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction in the face of a known blatant and dangerous safety violation" (Pelaez v State of New York, 2 NY3d 186, 198-199 [2004]; see Flagstar Bank, FSB v State of New York, 114 AD3d 138, 143-144 [2d Dept 2013]). Claimant is a member of a class of persons - prisoners - that the above-noted provisions of the Correction Law were enacted to benefit. The State was obligated to develop measures to ensure his safety, and in the event of a fire, to evacuate him.
The law in New York defines the scope of correctional facilities' duty of care. While the State is not an insurer of inmate safety, "having 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] [citations omitted]; see Di Donato v State of New York, 25 AD3d 944, 944 [3d Dept 2006]). But negligence may not be inferred merely because an incident occurred (see Sanchez, supra, 99 NY2d at 256). The scope of the duty owed is defined by the risk of harm reasonably to be perceived (see Basso v Miller, 40 NY2d 233, 241 [1976]). "Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent" (see Sanchez, supra, 99 NY2d at 252). Both what defendant actually knew and what defendant reasonably should have known are within the ambit of foreseeability (see id. at 254).
Claimant's allegations and the reasonable inferences from them establish it was foreseeable that: the lack of an adequate alternate method to open inoperable electronically shut cell doors during a fire would result in a potentially harmful delay; that refusing the Fire Department's request to break the cell windows for ventilation, even though the accumulating smoke was dangerous, would harm the inmates; and that failing to close, and ignoring claimant's request to close his window to keep out noxious fumes from power generating equipment would further be harmful to claimant. Injuries resulting from smoke and fume inhalation, and an extended period of being trapped in the smoke and the fumes, were the foreseeable result of these actions and failures to act. However, claimant's allegations regarding lack of training and preparedness are conclusory, speculative and devoid of facts, and do not support the claim for negligence.
Claimant mistakenly refers to violations of OSHA regulations. While an OSHA violation is evidence of negligence, OSHA governs employer-employee relationships (Khan v Banga Motor & Body Shop, Inc., 27 AD3d 526, 528 [2d Dept 2006], lv dismissed 7 NY3d 864 [2006]). Claimant does not allege that the State was his employer at the time of the fire.
The inquiry does not end there. Governmental immunity protects the State from liability for the injurious consequences of official action "when [that] action involves the exercise of discretion" (Haddock v City of New York, 75 NY2d 478, 484 [1990]; see McLean v City of New York, 12 NY3d 194 [2009]). Governmental immunity for discretionary acts applies where the actions resulted from discretionary decision-making, which is "the exercise of reasoned judgment which could typically produce different acceptable results" (Valdez v City of New York, 18 NY3d 69, 79 [2011] [internal citations omitted]; see Tango v Tulevech, 61 NY2d 34, 41 [1983]). Merely because a public employee's discretionary act, in retrospect, was a bad judgment call and was even negligent, such does not result in liability (see Kenavan v City of New York, 70 NY2d 558 [1987]; see also Artalyan, Inc. v Kitridge Realty Co., Inc., 52 AD3d 405 [1st Dept 2008]).
Defendant has met its burden to establish its defense of governmental immunity as to claimant's allegations regarding training and the emergency evacuation plan, both of which fall squarely within the exercise of discretion by prison officials. However, defendant has not met its burden to establish its defense of governmental immunity as to the remaining allegations. Defendant does not dispute that the cell doors were electronically locked and that the staff had to open them one by one using a key that was not readily available. Defendant does not discuss the guidelines for evacuation of inmates, whether the staff's actions were within those guidelines, whether the staff's actions resulted from discretionary decisions made pursuant to those guidelines, or whether such a potentially disastrous situation was even anticipated by those running the institution. Nor does defendant address claimant's allegations that: a lieutenant denied the Fire Marshall's request to break the cell windows, which if proven could possibly show bad faith or misconduct, as well as negligence; and a correction officer denied claimant's request that his window be shut to keep out noxious fumes from power generating equipment. These and additional factual issues will need to be resolved to determine whether defendant is immune from liability for claimant's alleged injuries.
Accordingly, defendant's cross-motion to dismiss the claim is granted to the extent that the claim is based on allegations regarding lack of an emergency plan, training and preparedness, and denied in all other respects.
Motion to Compel
Claimant moves to compel production of documents originally listed in his demand dated May 30, 2014. Defendant responded on October 29, 2014, objecting to producing: the names of correction officers who took medical leave due to the fire, workers' compensation forms, and list of officers injured in the fire; a copy of fire drill logs from 2010 through 2012; the name of the "Generator Company" hired to provide power source for special housing unit and "A" block shortly following the fire;
Claimant's motion is denied, except as to fire drill logs for 2010 and up to the date of the incident, April 18, 2011, and limited to fire drills covering "A" Block. Claimant has alleged that fire drills were "nonexistent," and documents showing if and when fire drills took place would be relevant. The genesis of his claim is the institution's unreasonable delay in evacuating him and other inmates incarcerated on "A" Block.
Claimant has not provided a compelling reason for obtaining correction officers' workers' compensation forms, the names of officers who were injured in the fire, and reports of officers' injuries. Not only is this information irrelevant to the issue of liability, it is protected under Civil Rights Law § 50-a, Public Officers Law §§ 89(2) and 96, and HIPAA.
Defendant asserts that no "generator company" was hired after the fire to produce power for "A" Block and the special housing unit. Since claimant has alleged that he was also injured by noxious fumes generated shortly after the fire by equipment placed directly underneath the location where he resided, the court construes claimant's demand as being for the name(s) of the company (and/or individuals) who were responsible for and placed the equipment directly beneath where he resided. Defendant shall have 30 days from the filing of this decision and order to respond to claimant's request as construed by the court.
September 8, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers Considered:
Notice of Motion, Motion to Compel Discovery and Exhibit
Notice of Cross-Motion to Dismiss, Affirmation and Exhibits
Claimant's Affirmation and Exhibit
Defendant's Reply