Opinion
# 2018-038-103 Claim No. 120584
01-17-2018
MICHAEL MORGAN DIN# 06-A-6355 v. STATE OF NEW YORK
MICHAEL MORGAN, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Claimant awarded $500.00 for past pain and suffering due to fall down stairs at a correctional facility. Defendant breached its duty to comply with "Flats Order" that had been issued to claimant, who was using crutches due to a prior, unrelated injury.
Case information
| UID: | 2018-038-103 |
| Claimant(s): | MICHAEL MORGAN DIN# 06-A-6355 |
| Claimant short name: | MORGAN |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120584 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | MICHAEL MORGAN, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 17, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Caption amended to reflect the State of New York as the only properly named defendant.
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages after suffering injuries in a fall down stairs at Green Haven Correctional Facility (CF). The trial of this claim was conducted by videoconference on August 17, 2017, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant presented his own testimony; defendant presented no witnesses. Claimant offered three exhibits that were received into evidence; defendant offered two exhibits that were received into evidence. After listening to claimant's testimony, and observing his demeanor as he did so, and upon consideration of that evidence, the documentary evidence received at trial, and arguments of the parties at trial, the Court concludes that defendant is liable to claimant in the amount of $500.00.
At trial, the Medical Excuse/Permit dated March 11, 2011 that is at issue in the claim was received into evidence as Defendant's Exhibit A. The handwriting on defendant's Exhibit A was faint and difficult to read, and in accordance with the Court's request, defendant has submitted, on notice to claimant, a clearer copy of the form, that is now received in evidence as Defendant's Exhibit B.
FACTS
Claimant's testimony and his Ambulatory Health Record (AHR) reflects that on February 12, 2011, while incarcerated at Green Haven CF, he broke a bone in his lower left leg/foot. He was placed in a cast and given crutches, and told not to bear weight on the left leg (see Claimant's Exhibit 3 [2/12/11, 2/14/11 AHR entries]). Claimant testified that he was housed on the third floor at the time of his accident, he was given a "flats order" and a medical permit to reside on the first floor. An entry in claimant's AHR dated February 14, 2011 notes that claimant "[w]ill need to house on flats during period of non-weight bearing" and that he was "[d]ischarged to flats" (id. [2/14/11 AHR entry]). Claimant testified that after he was discharged from the infirmary he was placed in cell G-112 on the first floor.
Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
Claimant testified that on the morning of March 11, 2011, Correction Officer (CO) Morris confiscated his crutches and told claimant that he would be moving his cell to cell G-214 on the second floor. Claimant replied that he could barely walk with crutches, much less climb stairs, to which CO Morris responded that if he did not pack up his belongings and move he would receive an inmate misbehavior report, and so he complied. Claimant testified that later that day, he went to the infirmary to prove he could not walk on his foot, and that he was issued a new permit that permitted him to use crutches and stated that he was to be on the flats. An entry in claimant's AHR dated March 11, 2011 notes that claimant "needs crutches and flats renewed" (id. [3/11/11 AHR entry]). The permit states that "[p]atient is recommended to be on FLATS and use crutches" with effective dates from March 11, 2011 through June 11, 2011 (see Defendant's Exhibit B). The permit also provided that claimant was not to participate in his programs and that he was to feed-in at his housing block (see id.). Claimant testified that he showed the new permit to CO Morris, but he was still required to go up the stairs and house on the second floor. Claimant testified that following his transfer to the second floor he had a medical call out that required him to go down the stairs, and an entry in claimant's AHR dated March 15, 2011 notes that claimant was seen by medical staff, who noted claimant's cell location was G-214 (see id. [3/15/11 AHR entry]). Claimant testified that he would remain in his cell unless he had mandatory call out.
Claimant testified that on March 16, 2011 he had a medical call out to the infirmary and as he descended the stairs with his crutches, he slid and fell down 12 steps to the bottom of the stairs. Claimant testified that when he fell he "saw stars," and that he suffered injuries to his head, shoulder, back and reinjured his foot. Claimant testified that he fractured his skull in the accident, which resulted in a permanent injury to his cerebellum, resulting in memory problems, headaches, psychological problems, blindness and sexual dysfunction. Claimant testified that he still suffers from severe headaches from the accident, which he treats with 600 mg of ibuprofen.
An entry in claimant's AHR dated March 16, 2011 notes that claimant fell down the stairs and hit his head and was complaining of pain in his shoulder and head (see id. [3/16/11 AHR entry]). Another AHR entry from March 17, 2011 noted that claimant had a "mildly displaced fracture of left fibula, as seen on 2-12-11, although one fragment may be new," and that a CT scan of his thoracic and cervical spine revealed no fracture, and that a CT scan of his head was "Normal, no acute traumatic injury" (id. [3/17/11 AHR entry]). The March 17, 2011 AHR entry further notes that claimant was "Stable for release to flats...SMO memo to movement and control: flats only" and that for pain control he was treated with "ibuprofen 200 mg., three tablets p.o. t.i.d. p.r.n." (id.).
DISCUSSION
Claimant argues that defendant's agents at Green Haven CF were negligent in requiring him to house on the second floor and ignoring the flats order that required him to be housed on the first floor, and that as a result, he suffered injuries. Defendant offered no substantive argument in opposition, with defense counsel stating only that defendant would "rely on the record."
The Court credits claimant's uncontradicted testimony, supported by Green Haven CF documents in evidence, that he fell down the stairs on March 16, 2011 while using crutches, and that he sustained injuries therefrom, but that alone is not sufficient to establish defendant's liability. Rather, in order to prevail on his negligence claim, claimant must prove by a preponderance of the credible evidence that defendant's agents breached a duty of care owed to him, and that the breach was the proximate cause of his injuries (see generally Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2d Dept 2008]). As presented by claimant, the issue to be decided is whether defendant owed a duty to claimant to house him on the first floor.
It is uncontroverted that on the date of the accident claimant was ambulating with the use of crutches and that he had a medical permit in which it was "recommended" that he be on the flats and use crutches (see Defendant's Exhibit B). An entry in claimant's AHR a month prior to the accident noted that claimant "[w]ill need to house on flats during period of non-weight bearing" (Claimant's Exhibit 3 [2/14/11 AHR entry]). No evidence was adduced that no cells were available on the first floor, or that there was an elevator available for claimant's use to avoid the stairs. Thus, under these facts, the Court concludes that Green Haven CF officials had a duty to house claimant on the first floor (see Kendricks v State of New York, Claim number 109696, Motion No. M-77421 [Ct Cl, Minarik, J., Jan. 11, 2011, unpublished decision]).
The Court credits claimant's testimony that he showed correctional authorities his medical permit and that they refused to relocate him to a cell on the first floor, and thus claimant has proven that defendant's agents breached its duty to house him on the first floor by placing him in a cell on the second floor. In the absence of proof that claimant could descend to the first floor without using the stairs, defendant's placement of claimant in a cell on the second floor, was a proximate cause of claimant's fall and the injuries he sustained that day. Defendant does not argue that claimant was at fault in any measure, and there is no evidence establishing claimant's comparative negligence. Thus, defendant is 100% liable for the injuries sustained by claimant as a result of his fall down the stairs on March 16, 2011.
Claimant is entitled to compensation for the injury, pain and suffering he sustained. An award for pain and suffering should compensate for the physical and emotional effects of claimant's injury (see McDougald v Garber, 73 NY2d 246 [1989]; Lamot v Gondek, 163 AD2d 678 [3d Dept 1990]). An award for injury must fall within a range that does not "deviate[] materially from what would be reasonable compensation" (CPLR 5501 [c]), which range may be determined by reference to similar cases in which damages were awarded (see Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 1000 [3d Dept 1998]).
As an initial matter, the Court does not credit claimant's testimony that he suffered a fractured skull and its sequelae, as an entry in claimant's AHR the day after the accident noted that the CT scan of his head was normal with "no acute traumatic injury" (see Claimant's Exhibit 3 [3/17/11 AHR entry]). Claimant has not offered any medical records to corroborate his claims that he suffered a traumatic brain injury or other medical conditions that allegedly flowed from that injury. Nor is there any evidence that supports claimant's testimony that his injuries were permanent, and, in any event, expert medical testimony is required to support a claim of permanence of injuries where the duration of the injury is not readily apparent (see 36 NY Jur 2d, Damages § 206). However, claimant's testimony and his medical records, support findings that claimant injured his head, shoulder and back and reinjured his foot during the fall, that he experienced substantial pain which subsided over time, and that he used over the counter pain medication for an unspecified period of time following his fall. Accordingly, an award of damages will be made for claimant's past pain and suffering..
The Court has reviewed other awards for past pain and suffering in comparable cases, including Prince v State of New York (UID No. 2011-049-105 [Ct Cl, Weinstein, J., Dec. 22, 2011]), and Flowers v State of New York (UID No. 2002-030-005 [Ct Cl, Scuccimarra, J., Feb. 13, 2002]). Having done so, and having considered the similarities and distinctions between those cases and this matter, especially considering that the fall reinjured claimant's fractured fibula, and having found that defendant is liable to claimant for the injuries he sustained as a result of defendant's breach of a duty owed to him, the Court awards damages for claimant's past pain and suffering in the amount of $500.00.
CONCLUSION
Claimant has proven his claim of negligence by a preponderance of the credible evidence, and defendant is 100% liable for certain injuries sustained. Claimant is awarded damages in the amount of five hundred dollars and no cents ($500.00) for past pain and suffering.
To the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a (2).
Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk of the Court of Claims is directed to enter judgment in accordance with this Decision.
January 17, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims