Opinion
# 2015-015-600 Claim No. 122240 Motion No. M-86082
05-08-2015
ROBERT S. DOUGLAS v. STATE OF NEW YORK
Law Offices of Eugene C. Tenney, PLLC By: Nathan C. Doctor, Esq. Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Inmate porters claim of improper training and maintenance of the infirmary was dismissed following trial as he failed to establish that the defendant had notice of the infection or that he contracted it in the infirmary.
Case information
| UID: | 2015-015-600 |
| Claimant(s): | ROBERT S. DOUGLAS |
| Claimant short name: | DOUGLAS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122240 |
| Motion number(s): | M-86082 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Eugene C. Tenney, PLLC By: Nathan C. Doctor, Esq. |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 8, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a former inmate, seeks damages for injuries allegedly sustained as the result of contracting methicillin-sensitive staph aureus during the course of his duties as an inmate porter in the infirmary at the Adirondack Correctional Facility (Adirondack). He alleges the defendant was negligent in failing to properly maintain the infirmary and in failing to properly train inmates working in the infirmary with respect to the handling of potentially infectious matter. The claim proceeded to trial on the issue of liability on January 12, 2015.
Claimant testified that he was transferred to Adirondack in September 2010 and was assigned to work in the infirmary as a porter that same month. He had no prior experience working in an infirmary and, according to his trial testimony, received no training in cleaning up blood, and other bodily fluids, or any precautionary measures which may have been necessary during the performance of his duties.
Claimant's motion (M-86082) requesting that the Court take judicial notice of documents from the NYS Department of Health and Centers for Disease Control and Prevention websites or otherwise admit these documents in evidence is granted to the limited extent that the Court will take judicial notice of the publications entitled State Health Department Advisory on Drug-Resistant Staph Infections dated October 18, 2007, which may be found at www.health.ny.gov/press/releases/2007/2007-10-18_msra_release.htm, and Methicillin-Resistant Staphylococcus Aureus (MRSA),which may be found at www.health.ny.gov/diseases/communicable/staphylococcus_aureus/methicillin_resistant/ (see Matter of Charles A. v State of New York, 101 AD3d 1535, 1536 [3d Dept 2012]; Kingsbrook Jewish Med. Ctr.v Allstate Ins.Co., 61 AD3d 13, 19-21 [2d Dept 2009]; CPLR 4511). The remaining publications are irrelevant as they either postdate the instant occurrence (Methicillin-Resistant Staphylococcus Aureus (MRSA)-revised February 2012) or concern matters (food poisoning) that have no bearing on the instant claim.
On January 17, 2011 claimant was treated in the infirmary for an infection on his right forearm which he described at trial as initially having the appearance of a pimple. He was seen again in the infirmary on January 19, 2011 at which time the infection had worsened. Claimant was transferred to Adirondack Medical Center where he was diagnosed with methicillin-sensitive staphylococcus aureus. Claimant was discharged from the hospital on January 25, 2011 and treated thereafter in the Adirondack infirmary.
Claimant testified that he generally worked five mornings per week in the infirmary and was occasionally directed to clean the infirmary at other times in preparation for inspections. His duties included cleaning walls, changing bed linens, mopping floors, cleaning bathrooms, showers and toilets and emptying trash. There were two isolation rooms and eight regular rooms in the infirmary. Claimant testified that he cleaned the infirmary's two isolation rooms and eight non-isolation rooms upon a patient's discharge or when directed to do so by a nurse. He testified that he received no training in mixing the Corcraft germicide used to disinfect the isolation rooms and that he also received no training in collecting trash, changing the bed linens or disinfecting the patient rooms before he contracted the infection. Although claimant testified that inmates admitted to the infirmary did not change their own bed sheets because they were not permitted access to the sheets, both Nurse Bonny Perryman (formerly Winch) and Rhonda Marrone, a Regional Infectious Disease Control Nurse, testified that inmates admitted to the regular infirmary rooms were required to change their own bed sheets for so long as they were there. Ms. Perryman also testified that inmate-porters are not permitted access to the isolation rooms while there is a patient in the room. Claimant testified that although he wore rubber gloves while working in the infirmary, they did not extend above his wrists. In addition, although claimant testified at trial that he was never provided with a gown or booties, he stated during an examination before trial that he may have been given shoe covers and a gown but was unable to recall with certainty. Claimant testified that no one instructed him to wear protective garments and that he first received training regarding his porter duties in the infirmary in April 2011, after he contracted the staph infection and specifically requested training (see Exhibit 4).
Claimant testified that he cleaned the isolation rooms, although he could not recall whether it was before or after a patient's discharge.
Rhonda Marrone has been employed as a Regional Infectious Disease Control Nurse since 2007. Her duties include auditing various prison facilities for compliance with infectious disease guidelines, providing quarterly updates to various prison facilities and reporting infectious diseases to the Department of Health within 24 hours. Ms. Marrone identified Exhibit A as the orientation material for inmate porters working in the infirmary, which she testified was designed to educate inmates regarding the potential risks of such work. She described the inmate-porters' duties as including garbage removal, mopping floors and walls, dusting and the use of a germicide on various surfaces. Ms. Marrone testified that staph bacteria is usually transmitted through direct contact with infected individuals although it is possible for such an infection to spread by contact with an inanimate object. She stated that there must be drainage and contact for the infection to spread and both she and Nurse Perryman testified that inmate porters have no direct contact with the patients. Ms. Marrone stated further that whereas unbroken skin is a natural barrier to staph infections, broken skin and a host of other factors, including antibiotic use, may increase the risk. Notably, claimant had been cleared for working in the infirmary on September 30, 2010 (Exhibit E at p. 027) and was prescribed antibiotics on December 31, 2010 (Exhibit E, p. 025).
The witness testified that from the time claimant began working in the infirmary in September 2010 through the time he contracted a staph infection in January 2011, there were no reported staph infections anywhere in Adirondack Correctional Facility. In fact, during the same period only one patient had used an isolation unit and this was for a suspected case of tuberculosis. Ms. Perryman similarly testified based upon her review of the infirmary logbooks that from August 20, 2010 through January 17, 2011 no infections were reported to the infirmary. Claimant, on the other hand, specifically recalled seeing a patient with a bandage on his ankle and an open wound that appeared to be infected.
Defendant moved to dismiss the claim at the conclusion of claimant's prima facie case. For the reasons which follow, the motion is granted.
The law is settled that as a landowner, the State " 'must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983] [other citation omitted]; Gonzalez v State of New York, 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 [2009], rearg denied 15 NY3d 820 [2010]; see also Correction Law § 70 [2] [c]). With respect to inmates engaged in work programs, the law is also settled that the State is obligated to provide these inmates " 'with reasonably safe equipment and sufficient warnings and instructions for safe operation of the equipment' " (Rosa v State of New York, 63 AD3d 1383, 1384 [3d Dept 2009], appeal dismissed 13 NY3d 856 [2009], rearg denied 14 NY3d 740 [2010], quoting Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]; see also Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]; Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]). The State is not an insurer against any injury which might occur on its premises, however, and negligence will not generally be inferred from the mere happening of an accident (Bernard v State of New York, 34 AD3d at 1067 [3d Dept 2006]; Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).
To establish liability for the injuries alleged here, it was necessary for claimant to demonstrate that the defendant either knew of the presence of staph in its facility or should have known of its existence and failed to take reasonable measures with respect thereto (Zaffarese v Iona Coll., 63 AD3d 727 [2d Dept 2009]; Matter of Staley v Piper, 285 AD2d 601 [2d Dept 2001]). "A general awareness that a dangerous condition may be present is legally insufficient to charge a defendant with constructive notice" (Koerner v City of New York, 111 AD3d 435, 435 [1st Dept 2013]). Here, claimant presented no evidence that defendant knew or should have known of the existence of staph in its facility. The claimant's lay testimony that he observed a patient at some unspecified time with a wound that looked infected is insufficient to conclude the defendant had notice of a staph infection in its infirmary. Defendant, on the other hand, established that there were no reported cases of infection during the period August 10, 2010 through January 17, 2011, the date claimant's infection became apparent. Inasmuch as there is no duty to maintain the facility in a state free of the staph bacteria or to routinely screen for the presence of the bacteria (Zaffarese v Iona Coll., supra), the absence of notice is fatal.
To the extent claimant contends that defendant failed in its obligation to provide him with adequate training and equipment and proper warnings regarding his work in the infirmary, he failed to establish that it was more likely than not that defendant's breach caused his injury (see e.g. Gayle v City of New York, 92 NY2d 936, 937 [1998]; Anderson v Columbari, 79 AD3d 679, 681 [2d Dept 2010]; compare Heitman v State of New York, 83 AD3d 1192 [3d Dept 2011]). Absent any reported infections, as is the case here, it appears equally likely that claimant contracted the infection at a location other than the infirmary where the use of protective equipment, training and warnings relating to the performance of claimant's work in the infirmary would not have availed him. Ms. Marrone made clear that staph may spread through direct contact with an inanimate object and may have existed and been contracted anywhere in the facility. While the proof need not " 'positively exclude every other possible cause' " of the infection but the defendant's negligence, it must "render those other causes sufficiently 'remote' or 'technical' to enable the [factfinder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 [1986] [citations omitted]). Claimant's testimony that he observed an inmate in the infirmary with what he believed to be an infected ankle wound is a wholly inadequate basis upon which to premise liability. Given that claimant may have contracted the infection anywhere within the prison facility, together with the absence of proof establishing the existence of staph in the infirmary during the period claimant worked there prior to contracting an infection, the mere fact that he was an infirmary porter at the time he contracted staph is also insufficient, even assuming inadequate training and personal protective gear were provided, to render a finding of liability in claimant's favor. Viewing the evidence in the light most favorable to claimant and affording him the benefit of every possible inference which may properly be drawn from the evidence, there is no rational process by which the Court could conclude that defendant's negligence was a proximate cause of his infection (see generally Butler v New York State Olympic Regional Dev. Auth., 292 AD2d 748, 750 [3d Dept 2002]). Accordingly, defendant's motion to dismiss the claim for failure to establish a prima facie case is granted and the claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
May 8, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated December 26, 2014;
Affidavit of Nathan C. Doctor sworn to December 26, 2014 with exhibits;
Affirmation of Belinda A. Wagner dated January 5, 2015 with exhibits;
Reply affirmation of Nathan C. Doctor dated January 5, 2015.