Opinion
# 2013-040-081 Claim No. 117259
12-16-2013
ERIC TOLLIVER v. STATE OF NEW YORK
RONEMUS & VILENSKY By: Michael B. Ronemus, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
Claimant failed to establish by a preponderance of the credible evidence that Defendant was liable when Claimant fell down the mess hall stairs at Clinton C.F.
Case information
+---------------------------------------------------------------------------+ ¦UID: ¦2013-040-081 ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant(s): ¦ERIC TOLLIVER ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant short name: ¦TOLLIVER ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Defendant(s): ¦STATE OF NEW YORK ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Claim number(s): ¦117259 ¦ +---------------------------------+-----------------------------------------¦ ¦Motion number(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Judge: ¦CHRISTOPHER J. McCARTHY ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦RONEMUS & VILENSKY ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦By: Michael B. Ronemus, Esq. ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦ERIC T. SCHNEIDERMAN ¦ ¦ ¦ ¦ ¦Defendant's attorney: ¦Attorney General of the State of New York¦ ¦ ¦ ¦ ¦ ¦By: Anthony Rotondi, Esq., AAG ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant's attorney:¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Signature date: ¦December 16, 2013 ¦ +---------------------------------+-----------------------------------------¦ ¦City: ¦Albany ¦ +---------------------------------+-----------------------------------------¦ ¦Comments: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Official citation: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦See also (multicaptioned case) ¦ ¦ +---------------------------------------------------------------------------+ Decision
Claimant, Eric Tolliver, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with personal injuries he sustained on August 15, 2007, when he fell down the mess hall stairs at Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. Claimant alleges that Defendant was negligent in requiring him to "go up and down stairs" when he had been issued a "flats" order from the medical department.
A bifurcated trial, addressing liability issues only, was held on June 25, 2013 at the Court of Claims in Albany, New York. Claimant was the only witness to testify at trial. In addition, deposition testimony was received from two witnesses: New York State Correction Officer ("CO") Wendell Hughes and CO Dennis Renadette. Thereafter, the parties requested and were granted additional time to order a transcript and submit post-trial memoranda.
Portions of the transcript of CO Hughes' deposition, taken on November 22, 2010, were admitted into evidence (see Ex. 14; Ex. 16).
Portions of the transcript of CO Renadette's deposition, taken on November 22, 2010, were admitted into evidence (see Ex. 15; Ex. 16).
Claimant testified that he has been in the custody of the Department of Corrections and Community Supervision ("DOCCS") for almost 20 years. He stated that, in the summer of 2006, he was incarcerated at Shawangunk Correctional Facility ("Shawangunk"), located in Wallkill, New York, and was injured while playing soccer. He slipped and fell after stepping in a hole on the field, while running after a ball. His left knee came out of the socket at the joint and he was seriously injured. It is Claimant's understanding that he is partially paralyzed from the knee down. He has nerve damage and only has feeling on one side of his left leg. He said he has had "foot drop" ever since the accident and cannot raise his left foot properly (Tr., p. 35; see Ex. 1). He also suffered ligament damage in the left knee.
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision (DOCCS).
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Claimant testified that he was transferred from Shawangunk to Clinton in or about November 2006. He stated that Clinton is built into the side of a mountain. Inmates are always going up and down stairs. He said it was very difficult for him to move around the facility. When he was transferred to Clinton, he says he complained to his correction counselor and to the doctor. Claimant filed an inmate grievance complaint, dated January 17, 2007, requesting that he be transferred to a prison that is "flat." He reported that he had to take steep flights of stairs to get to the law library and to programs, and that because of his injury and the subsequent surgery, he is in great pain when he walks up and down steps. He was advised that transfers are outside the jurisdiction of the inmate grievance committee and he should address the issue with his doctor and counselor (see Ex. 3). Claimant testified that he was advised that he would have to wait "the appropriate time to get transferred or that the medical department would have to order it" (Tr., pp. 43-44).
Dr. Lee, a physician at Clinton, issued a permit to Claimant which allowed him to wear a left knee sleeve, as well as left foot drop brace, from December 26, 2006 to December 26, 2007 (Ex. 2). On February 9, 2007, an orthopaedic consultation note by Dr. Berard suggested that Claimant "be on flat area (no stairs)" (Ex. 1; see Ex. 5; Ex. A, p. 1). That same day, Claimant filed another inmate grievance complaint against Dr. Lee. He wanted another doctor assigned to care for him, one who could get him assigned to a facility that was flat (Tr., pp. 68-69; see Ex 13). The grievance was denied. Claimant's Ambulatory Health Record ("AHR") contains an entry dated February 12, 2007 stating that Claimant should wear his drop-foot splint and he should be placed in a flat area of the prison (Ex. A, p. 2; Ex. 6). On February 21, 2007, Claimant was placed in the H2 unit (the hospital unit) at Clinton (Tr., p. 47; Ex A, p. 2; Ex. 6). Another AHR entry, dated February 23, 2007, states that per Dr. Lee, the orthopaedic consult (e.g., Dr. Berard) recommends "flats, no stairs" (Ex. 7; Ex. A, p. 3; see also Ex. 5). The same entry includes the notation that Claimant wants to know why he is in the hospital on invalid status and requests to return to the general population (Ex. 7; Ex. A, p. 3). Claimant stated that he did not want to be in the hospital with all of the sick inmates (Tr., p. 49). Therefore, he filed another inmate grievance complaint, dated February 26, 2007, because he wanted to participate in programs and, in order to do so, even from H2, he still had to traverse the steep stairs (Ex. 8). The grievance was denied. Claimant was advised that he was placed in the hospital because of his medical condition and again instructed that he should address his concerns to his medical provider (id.).
On February 28, 2007, Claimant made a Request for Reasonable Accommodation (see Ex. 9). The accommodation approved was placement in the H2 area and the explanation was that Claimant would be transferred when he met the criteria for transfer (id.). Claimant filed another inmate grievance complaint, dated March 20, 2007, regarding this response (Ex. 10). That grievance also was denied on the basis that Claimant would be recommended for a transfer when he met the appropriate criteria. Claimant testified that, after that grievance was denied, he wrote to the Clinton Superintendent on March 28, 2007 appealing the determination (id., p. 10E). Claimant stated that he received a response to his letter from the Grievance Committee adhering to its determination (Tr., p. 57). When he received that response, he initiated an Article 78 proceeding in Supreme Court, Clinton County, requesting that he be transferred to a facility where he could function (Tr., pp. 57-59).
Claimant further testified that, as a result of all the grievances he filed, he spoke with the doctor at the facility and he was moved from the hospital unit back to the general inmate population and was housed in Upper H block (Tr., pp. 51, 62-63). He was assigned to the job of porter for that housing unit. He described the job as flexible, as it entailed performing numerous duties, some of which required him to use the stairs (id., p. 63).
Claimant testified that, on August 15, 2007, he was assigned by a CO to handle the laundry. He had to go to each cell in the housing unit, pick up that inmate's laundry and put it in the duffel bag that he was carrying. He was ordered by the CO to take the bag to the laundry room. He had picked up the laundry and taken it to the laundry room on two occasions prior to the day of the accident. To get to the laundry room, Claimant had to go down a short stairway to the main walkway. He then had to go to the mess hall area and take a steep flight of stairs to the basement area where the laundry was located. He had to descend about 20 steps on the second stairway. He was carrying the laundry bag over his shoulder. He stated that the bag weighed approximately 75 to 100 pounds (Tr., pp. 64-66).
There were a number of porters who made the trip to the laundry room that day. The porters traveled single file, with a CO escort behind them. Claimant stated that he was next to last or last in the line of porters. He said that the group proceeded to the tall flight of stairs. After going down two or three steps, Claimant stepped on his left foot and his left leg got wobbly and then gave out. He became unbalanced because of the bag of laundry he was carrying. He tried to regain his balance but could not. He fell backwards, striking his back against the steel steps. A stretcher was brought and Claimant was taken to the medical unit for treatment (Tr., pp. 66-68; see Ex. 12 [Inmate Injury Report]; Ex. A, p. 6).
Claimant testified during cross-examination that he was housed at Green Haven Correctional Facility ("Green Haven"), located in Stormville, New York, from 1995-2005 and that he had a porter job at that facility. He stated that he was aware of the duties required of a porter (Tr., pp. 78-79, 91-92, 96). Claimant did not recall when he received the porter job at Clinton. He did not know how long he was working prior to his fall (id., p. 88). Claimant agreed that he wanted to be a porter (id., p. 89). In fact, Claimant wrote a letter to a correction counselor, Ms. Campbell, on April 18, 2007, in which he requested to be transferred to the A Block at the facility and that he be placed on the A Block porter waiting list (Ex. 17). He admitted that he did not write to his counselor in July or August 2007 stating that he did not want to be a porter (Tr., p. 92). He also could not recall ever writing to Dr. Lee requesting a transfer to a flat correctional facility (id., p. 73).
Claimant asserts that Defendant was negligent in: (1) failing to adhere to the "flats order" issued by the medical department to Claimant; and (2) requiring Claimant to carry a heavy laundry bag down a flight of steep steps despite his leg injury and the "flats order." While Claimant did testify that he had a "flats order" and that he had to carry the laundry bag to the laundry room as part of his duties as a porter, he also stated that his doctor placed him in the hospital because of his condition; that Claimant did not wish to be in the hospital because he wanted a facility job so he could earn money; that he consulted with his doctor and was released from the hospital and placed in general population; and that he requested his assignment to work as a porter.
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 [1985]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]). 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 [1990]). 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 [1976]). "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 [2005]). Medical malpractice "is simply a form of negligence [and] no rigid analytical line separates the two" (Scott v Uljanov, 74 NY2d 673, 674 [1989]; see Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv to appeal dismissed in part, denied in part 18 NY3d 870 [2012]).
In the area of medical negligence, it is, likewise, "well settled that the State has a duty to use reasonable care to protect the inmates in its correctional facilities" (Hill v State of New York, UID No. 2010-009-100 [Ct Cl, Midey, J., Mar. 2, 2010]; see Flaherty v State of New York, 296 NY 342, 346 [1947], Casella v State of New York, 121 AD2d 495 [2d Dept 1986]), including a "duty to provide for the health and care of inmates," which can be defined in terms of negligence (Levin v State of New York, 32 AD3d 501, 502-503 [2d Dept 2006]; see Kagan v State of New York, 221 AD2d 7, 16-17 [2d Dept 1996]; McCrossen v State of New York, 277 App Div 1160 [4th Dept 1950]; 9 NYCRR 7651.1). As with other duties in tort, however, the scope of the State's duty is "limited to risks of harm that are reasonably foreseeable" (Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see Flaherty v State of New York, supra). Moreover, where "a medical determination has been made, directing a certain course of action, the failure to comply with the medical direction presents a cause of action sounding in ordinary negligence (see Mossman v Albany Med. Ctr. Hosp., 34 AD2d 263, 264 [1970]). Ministerial neglect may also be in issue where there is proof that the State failed to follow its established protocols (see Kagan v State of New York, 221 AD2d 7 [supra])" (Smith v State of New York, UID No. 2004-018-340 [Ct Cl, Fitzpatrick, J., Oct. 14, 2004]; see Reynolds v State of New York, UID No. 2007-039-064 [Ct Cl, Ferreira, J., Feb. 21, 2008]; Lopez v State of New York, UID No. 2003-034-015 [Ct Cl, Hudson, J., Nov. 26, 2003]).
To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280 AD2d 797, 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70). 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 [1917]).
The Court has considered all the evidence, including a review of the exhibits and listening to Claimant's testimony, and observing his demeanor as he testified. Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received at Clinton. Mr. Tolliver's sincerity notwithstanding, the Court finds that this is not a case of simple negligence but of medical malpractice and that Claimant failed to establish his claim. Claimant's testimony and the documentary evidence establish that Claimant was placed in the hospital unit by Dr. Lee "per ortho" (see Ex. 6; Ex. A, p. 2 [AHR entry dated February 21, 2007]). It was also established that Claimant did not want to be in the hospital. He wanted to be able to work at a facility job and he wanted to be housed in a flat correctional facility. Claimant filed numerous grievances regarding his placement at Clinton. Finally, Claimant said that he had a discussion with his doctor, after which he was released from the hospital unit and placed in the general prison population (Tr., p. 51). Claimant offered no other explanation or evidence concerning his release from the hospital unit. Claimant also failed to present any expert testimony that the determination made by Dr. Lee to release Claimant from the hospital was improper or constituted a deviation or departure from good and accepted medical practice. There is no indication in Mr. Tolliver's AHR that he went to medical staff with complaints of pain in his left knee, leg or foot after April 17, 2007 until his accident (see Ex. A, pp. 5-6; Tr., pp. 87-88). He wrote to Ms. Campbell seeking a housing transfer and a position as a porter on April 18, 2007 (Ex. 17). Claimant testified that the condition of his leg did not change during that period (Tr., p. 99), a statement that is difficult to reconcile with his position at trial that he was unable to go up or down stairs or perform the tasks assigned to him as a porter except with extreme difficulty. Thus, in the absence of any testimony from a medical expert that the medical determination to release Claimant back to the general inmate population was improper, and that it was improper to assign Claimant to a porter job, the Court determines and concludes that Claimant has failed to establish, by a preponderance of the credible evidence, that the care provided to him was not appropriate or adequate, and that cause of action is dismissed.
Assuming arguendo, that this Claim asserts a species of medical negligence, the Court also concludes that Claimant has failed to establish that the State was negligent. The Court concludes that Claimant failed to establish that Defendant breached the duty of care it owed to him. Again, Claimant did not want to be in the facility hospital; he filed a grievance about his placement there. He wanted a job, so that he could have an income. He continued to file grievances about his placement at Clinton and even filed a lawsuit in that regard. Claimant requested the assignment to be a porter, wanted the assignment, and did not complain about the assignment. It was Claimant's testimony that he was released from the hospital to general population, and received his wish that he be assigned a facility job, only after he spoke with his doctor.
The Court concludes that Claimant failed to establish by a preponderance of the credible evidence that the flats order remained in effect after his transfer to the general prison population was effectuated, that the State failed to follow its established protocols, that the State breached its duty to provide for his health and care, or that it failed to protect him from a foreseeable risk of injury. To the contrary, Mr. Tolliver was moved from a flat location in the H2 unit only after his persistent objections to that housing arrangement and after consultation with his doctor. Likewise, Claimant actively lobbied for his porter's job even though he was aware of the duties of that position. Indeed, he never complained or objected about the tasks he was given as a porter and wanted to keep the job. Thus, the Court concludes that Claimant's own culpable conduct in insisting on being moved, and in seeking the porter's job, was the sole proximate cause of his subsequent fall.
Accordingly, the Claim is dismissed. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
December 16, 2013
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims