Opinion
# 2017-053-006 Claim No. 122817
08-17-2017
ZACHARY QUICK v. THE STATE OF NEW YORK
ZACHARY QUICK, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Thomas G. Ramsay, Esq. Assistant Attorney General
Synopsis
After a trial on liability, the State was found to have acted negligently in failing to issue claimant a permit for a lower bunk. The State is 100% liable for claimant's injuries resulting from his fall from an upper bunk.
Case information
| UID: | 2017-053-006 |
| Claimant(s): | ZACHARY QUICK |
| Claimant short name: | QUICK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122817 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ZACHARY QUICK, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Thomas G. Ramsay, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 17, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
During the early morning hours of February 8, 2012, claimant sustained personal injuries after falling from an upper bunk assigned to him at the Groveland Correctional Facility (Groveland). On or about March 26, 2012, claimant served a notice of intention to file claim and a claim was filed on June 5, 2013. An answer and amended answer were filed denying claimant's allegations. Following pretrial discovery, a bifurcated trial on liability only was conducted utilizing video technology. Claimant testified at the trial and the defendant offered no witnesses in defense of the claim. The Court has accepted three exhibits introduced by claimant, including a Department of Corrections and Community Supervision (DOCCS) Health Transfer Information Pursuant to Section 601 (a) Correction Law (Exhibit 1), a DOCCS Ambulatory Health Record Progress Note (Exhibit 2), and a DOCCS Medical Permit/Pass (Exhibit 3).
During the trial, the defendant objected to the introduction of Exhibit 3, the Medical Permit/Pass that was completed on the date of the accident. The form was misdated as 2/8/11 instead of 2/8/12 by the nurse who executed it. Defendant's objection to this exhibit was not as to the date but on the basis that it was a document prepared following claimant's incident and thus has no bearing on the issue of liability. Claimant alleged that it should be admissible as the exhibit demonstrates how quickly and easily defendant could have been issued a lower bunk permit. The Court reserved decision at that time and now overrules the objection. Exhibit 3 is admitted for the limited purpose of corroborating claimant's testimony that such a form existed at that time and that it is to be issued where an inmate has been evaluated by health services to have "a physical condition which necessitates certain restrictions of his activities," including a medical permit that assigns him to a lower bunk.
Claimant testified that he was transferred to Groveland approximately two weeks prior to the incident from the Downstate Correctional Facility (Downstate). The claimant was placed in Downstate temporarily after being transferred there from the Greene County Jail. Claimant explained that the bunks assigned to him while at the Greene County Jail and Downstate were lower bunks and as such, no medical permit to be assigned to a lower bunk was necessary. Claimant was transferred from Downstate to Groveland on December 23, 2011. Upon the transfer to Groveland, claimant testified that he met with Nurse Hill for a medical screening and a Health Services Orientation sheet was completed. Claimant testified that during this screening process, he told Nurse Hill that he suffered from night terrors that could cause him to fall from bed and that she should issue him a permit so that he could be assigned to a lower bunk. The claimant testified that Nurse Hill told him that he would need a medical excuse before he would be assigned to a lower bunk and that she believed that night terrors did not qualify him for one as it was not a physical restriction. Claimant was initially assigned to cellblock L-3, which only contained lower bunks and testified that when in L-3, he fell from his bunk during one evening. Claimant also testified that he told a correction officer present that he had fallen from his bunk due to a night terror and wanted him to make a record of it. As the fall occurred from a lower bunk, claimant did not injure himself.
Exhibit 2 - Ambulatory Health Record Progress Note, upper entry for December 23, 2011 contains notation that a "Health Services Orientation Sheet Reviewed, Signed, Copy Given." The middle entry under assessment indicates "chart complete."
The claimant produced a copy of the Health Transfer Information form that was provided with his transfer to Groveland. He testified that the Health Transfer Information form was completed prior to his transfer from the Greene County Jail. This form indicated that claimant had been diagnosed and was receiving mental health services for Axis I anxiety disorder and Axis II personality disorder. The current psychiatric symptoms that were listed on that form included anxiety and panic attacks, flashbacks and night terrors. Claimant testified that he suffered panic attacks and night terrors that could cause him to fall from his bunk and it was for this reason that he requested an assignment to a lower bunk.
Exhibit 1 - Health Transfer Information Pursuant to Section 601 (a) Correction Law.
Claimant testified that on January 20, 2012 he met with Dr. Rosenberg, a psychiatrist at Groveland, about his anxiety, panic attacks and night terrors. Claimant testified that he also told Dr. Rosenberg that he was concerned about falling from his bunk and asked him to issue a lower bunk permit. Claimant testified that Dr. Rosenberg told him that he did not have authority to issue a lower bunk permit but that he would see what he could do for him.
Approximately one week prior to the incident, claimant was transferred to cellblock L-1, where he was first assigned to an upper bunk. Claimant testified that about one week went by without incident until the night of February 8, 2012, when he suffered a night terror and awakened as he was falling from the upper bunk. Claimant testified that he recalled striking his head on a locker as he fell and was thereafter rendered unconscious. He testified that when he regained consciousness, he was unable to move and was experiencing extreme pain in his lower back, as well as a bump and cut to his forehead and right elbow. Claimant was taken by stretcher to the Groveland medical clinic, where he was treated for his injuries and returned to his cell around 2:00 or 3:00 a.m. Upon his return, claimant was told to return to the upper bunk from which he had fallen, but his cellmate agreed to take it for him.
The law is well settled that the State having assumed custody of an inmate owes a duty to use reasonable care to safeguard inmates from foreseeable risks of harm (Sanchez v State of New York, 99 NY2d 247 [2002]). The duty of care owed to inmates to prevent foreseeable risks of harm is defined not simply by actual notice but also by constructive notice, i.e., what the State "knew or had reason to know" and what the State "is or should be aware" of (Id. at 255). However, the State is not to be an insurer of inmate safety and a claimant must demonstrate a failure by the State to take minimal protective measures when it knows or has reason to know of the likelihood that the harm suffered was a reasonably foreseeable consequence of the State's acts or omissions (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).
The basis of the present claim is that a previously documented psychiatric condition, i.e., night terrors, caused claimant to fall from his bunk and it was reasonably foreseeable that placing him in an upper bunk at Groveland risked the type of injuries which occurred on February 8, 2012. In support of his claim, claimant introduced a Health Transfer Information form dated November 29, 2011, which sets forth his mental health information and current psychiatric symptoms, including night terrors. Claimant contends that the notation of night terrors should have caused the nurse performing the medical screening at Groveland on December 23, 2011 to contact the nurse at the Greene County Jail, who would have told her that claimant had fallen from bed on several occasions due to night terrors and should be assigned to a lower bunk. Claimant testified that during his medical screening at Groveland, he told Nurse Hill that night terrors caused him to fall from his bunk and for that reason he had previously been assigned to a lower bunk. Claimant also testified that on January 20, 2012, he told the Groveland psychiatrist, Dr. Rosenberg, that he was concerned about his night terrors causing him to fall from his bunk and asked that a lower bunk permit be issued. The claimant's undisputed testimony established that he had a prior history of falling from his bunk due to night terrors prior to his transfer to Groveland and while in the custody of DOCCS at the Greene County Jail and Downstate. In addition, claimant testified that he fell from his bunk on one occasion at Groveland before he was assigned to the double-cell and upper bunk where the subject incident occurred. The claimant also produced a DOCCS Medical Permit (Exhibit 3) that can be issued to an inmate who has been evaluated by Health Services to have a "physical condition which necessitates certain restrictions", including to a lower bunk.
In defense of the claim, the State did not offer the testimony of Nurse Hill or any other individual from Groveland with knowledge about the process by which claimant was evaluated by Health Services or how claimant was assigned from a cell with a lower bunk to a double-cell and an upper bunk or any other fact witness to dispute claimant's testimony that the State had actual or constructive notice that the claimant experienced night terrors that caused him to fall out of his bunk. Claimant was cross-examined on a limited basis as to the Health Transfer Information Form and whether he was caught cheating or hoarding his medications as written on the form next to "Medications", which claimant specifically denied. The State moved at the close of proof to dismiss the claim asserting that claimant had failed to prove a prima facie case of negligence. The State also asserted that claimant was required to offer expert testimony to establish that he had night terrors and that night terrors would cause him to fall from bed and was entitled to a medical permit to be assigned to a lower bunk. The Court reserved decision on the defendant's motion.
Exhibit 1. --------
Addressing first the issue of expert testimony, the Court does not agree that expert witness testimony was necessary to establish that claimant experienced night terrors. The Health Transfer Information form, which indicated that claimant was receiving mental health services for Axis I and II mental health disorders listed among the current psychiatric symptoms the term, night terrors. It is the determination of the Court that the claimant's testimony concerning night terrors or nightmares is not one that is beyond a typical individual's comprehension or experience and that it is not necessary to require the professional or technical knowledge possessed by an expert (see Galasso v 400 Exec. Blvd. LLC, 101 AD3d 677 [2d Dept 2012] and B.D.G.S., Inc. v Balio, 26 AD3d 730 [4th Dept 2006], affd 8 NY3d 106 [2006]). Further, the Court finds that claimant's testimony was credible and sufficiently detailed to describe what occurred when he experienced night terrors and that they would in some instances cause him to fall out of his bunk.
The Court denies defendant's motion and finds that claimant met his burden to establish a prima facie case of negligence. The Court finds that the State owed claimant as an inmate a duty of care, that the State failed to exercise proper care in the performance of that duty, that the breach of care in failing to issue him a medical permit for a lower bunk was a proximate cause of claimant's injuries, and that the risk of such injuries was reasonably foreseeable under the circumstances. The testimony and documentary evidence provided established that the State had notice that claimant was receiving mental health services and experienced night terrors and that the nurse and psychiatrist at Groveland were advised by claimant that night terrors had caused him to fall out of his bunk on prior occasions prior to his transfer to the double-cell and an upper bunk. It was a reasonably foreseeable risk that claimant could have an episode of night terrors and fall and injure himself if he was assigned to an upper bunk. The State provided no testimony to dispute the claimant's testimony establishing notice or to contest that a medical permit to assign claimant to a lower bunk for night terrors would not have been issued under DOCCS regulations. As the State did not call any witness from DOCCS involved in the administrative determination to assign claimant to the upper bunk, the defense of qualified immunity cannot apply (Haddock v City of New York, 75 NY2d 478, 485 [1990]).
Furthermore, the State also failed to demonstrate that it followed the mandated criteria and assessment procedures set forth in Title 7 of the New York Codes Rules and Regulations § 1701.5 for the selection and screening of inmates for double-cell housing to determine, given claimant's medical history and known psychiatric conditions and exhibited symptoms (e.g., night terrors), in order to determine that claimant could be assigned to a double-cell and an upper bunk. As such, this is not a case where the Court lacks jurisdiction to review an administrative determination to assign claimant to a double-cell because: (1) the State failed to establish that the mandated procedure had been followed in this instance (see e.g., Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]); and (2) it is claimant's assertion that it was negligent for the State to place him in an upper bunk, not that it was negligent to place him in a double-cell.
Accordingly, the Court finds that the State acted negligently in failing to issue claimant a medical permit at Groveland for a lower bunk prior to his transfer to a double-cell. Claimant's undisputed testimony established that he was experiencing night terrors and this was communicated to the Groveland nurse and psychiatrist, who failed to see that a medical permit for a lower bunk was issued to claimant or to intercede and prevent him from being assigned to an upper bunk when he was transferred to a double-cell. There is no basis in the record upon which to decide that there was any contributory fault on the part of claimant and as such, the State is 100% liable for claimant's injuries resulting from his fall from the upper bunk.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability. A trial on the issue of damages is to be scheduled thereafter as soon as it is practicable.
August 17, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims