Opinion
# 2017-044-015 Claim No. 120719
11-27-2017
RAFAEL CEARA v. THE STATE OF NEW YORK
RAFAEL CEARA, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
After trial, defendant found liable in the amount of $500.00 for minor injuries incurred by inmate claimant whose medically required cane was taken away while he was shackled and subsequently fell.
Case information
| UID: | 2017-044-015 |
| Claimant(s): | RAFAEL CEARA |
| Claimant short name: | CEARA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120719 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RAFAEL CEARA, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 27, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received when he fell after a correction officer (CO) took away his cane as claimant was walking through the main entrance area at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant's two previous motions for leave to proceed as a poor person and for assignment of counsel were both denied (Ceara v State of New York, Ct Cl, May 8, 2013, Schaewe, J., Claim No. 120719, Motion No. M-83170; Ceara v State of New York, Ct Cl, Jan. 4, 2013, Schaewe, J., Claim No. 120719, Motion No. M-82322). A trial in this matter was conducted by video conference on November 16, 2017, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.
Claimant testified that on the morning of December 31, 2010, he and some other inmates were to be transported to physical therapy at Five Points Correctional Facility. He said that at the time he had been going to physical therapy twice a week for his knee. He was wearing a knee brace, his feet were chained, and his hands were shackled to his waist. He said he was using a cane, for which he had a permit, because his knee hurt due to the damp conditions. He demonstrated how he was able to use the cane despite being shackled at the waist. Claimant said that in order to exit the facility, the inmates were required to pass through two sally ports and then would get into a van for transport.
Defendant's Exhibit B.
Claimant stated that after he passed through the second port Sergeant Gilboy took his cane away from him. Claimant said that he took a few steps forward and his knee buckled and he fell onto his left side. He stated that COs picked him up and put him in a wheelchair and transported him to the infirmary. He did not go to physical therapy that day.
Claimant said that X rays were taken, and that he had visible lacerations to his left hand and wrist where they had been caught between the ground and the waist box and shackle. Claimant testified that the base of the left hand has been numb since he fell, and that he believes he has carpal tunnel syndrome. He said he also has some recurring pain and tingling in the thumb and wrist area. He indicated that because he had the knee brace on, his knee was not injured "much."
All quotes herein are taken from the Court's notes regarding the proceeding, unless otherwise indicated.
On cross-examination, claimant stated that Gilboy, not any other CO, took the cane away from him. He said that Gilboy gave him a direct order to hand over the cane, which claimant obeyed. He indicated that he had been issued the cane and cane permit at Downstate Correctional Facility due to the knee injury which required the brace. He also affirmatively stated that the injuries to his wrist and hand were the only injuries he sustained when he fell. He said he was tested for nerve damage, but was never given the test results. He said that the X rays taken after he fell showed no fractures. He noted that he was eventually given two MRIs, one of which indicated suspicion of carpal tunnel syndrome, and the other of which stated that the carpal tunnel appeared normal and gave a tentative diagnosis of tendinosis of the extensor carpi ulnaris. Neither report gave any indication regarding the cause of claimant's symptoms. When asked whether he had declined surgery to remedy the condition, he said that surgery had never been offered to him but that he would be happy to do anything if it would alleviate his discomfort.
Claimant's Exhibit 2 at 1.
id. at 2.
An extensor carpi ulnaris is a muscle on the outside of the hand, extending from the elbow to the base of the pinky finger (https://www.healthline.com/human-body-maps/extensor-carpi-ulnaris-muscle).
Claimant acknowledged that he had filed a lawsuit in Federal Court regarding this same incident, in which he was deposed. The complaint in that matter does not note any injury to claimant's shoulder or knee, although he made such allegations in the claim in this litigation. Claimant testified that his injuries were only to his hand and wrist. Claimant asserted that he had not been diagnosed with carpal tunnel syndrome until after his fall.
Defendant's Exhibit A.
Claimant acknowledged that he had been interviewed regarding the incident. When shown a To/From memorandum from Lt. McKeon to Deputy Superintendent Wenderlich dated January 28, 2011, claimant said he thought he had seen it previously, but disagreed with various statements contained therein. He said that, despite what was stated in the memorandum, he had supplied the names of witnesses to the incident. He also disagreed with the statement in the memo that he had said he had no lasting injuries, and also denied that he had said that he sometimes carried his cane without using it as a means of physical support.
Defendant's Exhibit D.
Claimant was also shown a To/From Memo from Deputy Superintendent Reynolds to claimant dated January 10, 2011 regarding the complaint he had made about the incident. That memo states in pertinent part: "[y]ou were observed walking down the stairs to the waiting van with the cane hanging over your arm. It was not being used, therefore it was removed from you to avoid any security issues while getting in the van. Canes must be properly used at all times." Claimant's response to being shown the memo was to state that if he had been observed carrying his cane on more than one occasion, rather than using it, why had it not been taken from him prior to that time. He contended that the cane permit states that if the device is not used, it will be taken away. He agreed that the cane was regularly taken from him after he got into the van, and later returned to him.
Defendant's Exhibit E.
Defendant's Exhibit B.
The Court notes that there is no indication of this restriction on Defendant's Exhibit B.
Claimant stated he had no issues with Gilboy prior to this incident. He agreed with his statement given during the deposition in the federal litigation, in which he stated that the Sergeant could legitimately take the cane away if claimant was carrying it rather than using it. However, he insisted he was using it at the time it was taken.
Defendant also submitted a To/From Memo from CO Barcomb to Gilboy, stating that Gilboy told Barcomb to secure claimant's cane, but when Barcomb saw claimant he was lying on the ground. Barcomb's memo states that he and Gilboy picked claimant up and put him in a wheelchair. Barcomb further states that he did not see Gilboy and claimant engaged in any conversation.
Claimant's Exhibit 1.
Finally, claimant was shown a copy of the decision by the Central Office Review Committee in response to his grievance. That decision notes that claimant had been observed on several occasions carrying his cane, rather than using it. Claimant again stated that if he had been seen carrying the cane it would have been taken from him and not returned. Claimant stated that the cane was eventually taken away due to lack of medical necessity, but said that did not occur until April 1, 2011, several months after the accident.
Defendant's Exhibit F.
Claimant rested his case at the close of his testimony. Defendant moved to dismiss for failure to state a prima facie cause of action on the grounds that the evidence showed that the cane was removed from claimant's possession for security purposes, and that claimant's grievance was denied. The Court reserved decision on the motion.
Defendant called (retired) Sergeant Gilboy to testify. Gilboy stated that at the time of this incident he was the "outside Sergeant" responsible for everything done outside the prison. He recalled the incident. He testified that it was early in the morning, and claimant was being taken to another facility for physical therapy. He said claimant was carrying his cane, rather than using it, and had gone down stairs and through two sally ports without using it. He stated that because claimant was not using the cane, he told another officer to remove it from claimant's possession. Claimant was about 50 feet from the van at the time. Gilboy testified that he had seen claimant carrying the cane a number of times before that incident, as well as after. Gilboy said that claimant did not complain, but instead looked at him (Gilboy), smiled, squatted down, and intentionally fell over.
Gilboy said he never witnessed claimant actually using his cane, and claimant never seemed to have a problem walking without it. He said claimant was carrying it "for show," and would twirl it "like Fred Astaire." Gilboy acknowledged that he did not take claimant's cane away on the other occasions when he saw claimant simply carrying it.
On cross-examination, Gilboy said that if he saw an inmate carrying a medical item rather than using it, he would take it away and notify the medical staff that it was not needed. He admitted he never notified medical staff that claimant did not need his cane. He could not answer when asked why not.
Defendant rested its case at the close of Gilboy's testimony. Defendant then moved to dismiss the claim on the basis that claimant had not established a prima facie cause of action, in that the proximate cause of the injury was intentional, and moreover that there was no medical testimony that would establish a causal relationship between the fall and the carpal tunnel syndrome. The Court again reserved decision on the motion.
It is well-settled that the State owes "a duty to use reasonable care to protect its inmates from foreseeable risks of harm" (Reid v State of New York, 61 AD3d 1063, 1064 [3d Dept 2009] [internal quotation marks omitted]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an incident where an inmate is injured (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). In order for a claimant to prove a cause of action for negligence, he or she must show that the harm suffered was a "reasonably foreseeable consequence of the State's acts or omissions" (see Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).
The Court has considered the evidence, including a review of the exhibits, listening to the witnesses testify, and observing their demeanor as they did so. Turning first to Gilboy's testimony at trial, the Court can only state that he was in no way credible. It is highly unlikely - to the point of impossibility - that claimant was allowed by CO's to "twirl his cane like Fred Astaire," or that claimant never used his cane to assist him in walking and yet it was not ever removed and reported to medical staff. A cane could be used as an extremely dangerous weapon. Prison staff would never ignore such use of a potential weapon. The Court has disregarded Gilboy's testimony in every regard.
It is clear that defendant does not dispute that claimant fell. Claimant's testimony that Gilboy removed his cane was convincing. It is readily apparent that removing a cane from a shackled person who has a permit (and thus presumably a need) for the cane will result in a fall. Accordingly, defendant is 100% liable for claimant's injuries.
However, claimant did not establish any causal relationship between the apparent long-term injury to his hand or wrist which was indicated (as potentially carpal tunnel or tendinosis) in the MRIs. There are a multitude of situations which could have caused those conditions. Accordingly, claimant may recover only for the bruising and lacerations he testified to at trial.
No medical records were introduced regarding claimant's medical treatment on the day he was injured, so there is no proof that his injuries were more severe than minor lacerations or bruising.
Based on the foregoing, the Court finds that an award of $500.00 is appropriate recompense for claimant's injuries. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Any motions not previously determined are hereby denied. Let judgment be entered accordingly.
November 27, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims