Opinion
# 2019-040-012 Claim No. 128437
01-25-2019
ROBERT FAREIRA v. THE STATE OF NEW YORK
Robert Fareira, Pro Se LETITIA JAMES Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney
Synopsis
Court finds Claimant failed to establish by a preponderance of the credible evidence that the State was responsible when he fell after getting out of a van at CNYPC after returning from a doctor's appointment.
Case information
| UID: | 2019-040-012 |
| Claimant(s): | ROBERT FAREIRA |
| Claimant short name: | FAREIRA |
| Footnote (claimant name) : | Claimant advised the Court by correspondence, and at the beginning of the Trial, that his name was misspelled in the caption of the Claim that was served and filed. At the beginning of Trial, he spelled his name for the Court and requested that the Claim be amended to reflect the proper spelling of his name. The Court has done so. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128437 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Robert Fareira, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant, Robert Fareira, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on February 10, 2016, when he fell at Central New York Psychiatric Center (hereinafter, "CNYPC"). The trial of this Claim was held on November 30, 2018, at CNYPC.
At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's Answer. Claimant submitted into evidence one document (Exhibit 1). The Court reserved its decision on the State's objections to the introduction into evidence of this exhibit. Upon due consideration, the Court now overrules the objections to that exhibit, and it is admitted into evidence and will be considered by the Court. The State submitted three exhibits into evidence (Exs. A, B, C). Claimant testified on his own behalf and called two witnesses to testify, Mr. Travis Brown, a Secure Care Treatment Aide (hereinafter, "SCTA"), and Security Officer (hereinafter, "Officer") Alan Cady.
Claimant testified that, on February 10, 2016, he had an appointment to see a heart doctor at St. Elizabeth's Hospital. Claimant stated that there were no issues getting to the hospital and that he was seen by the doctor. Claimant was transported to and from his appointment in a van. He was handcuffed and, also, was in leg irons or shackles. Claimant testified that the van was parked at the sally port in front of Building 41 at CNYPC; that Officer Cady and SCTA Brown both got out of the van, and opened the door for Claimant to exit the van. Claimant stated that he slid over on the seat to the door, stood up with his feet on the van's running board, and fell face first to the ground from the van. Claimant stated that he was unconscious for a while and that when he woke up, he was in an ambulance and was informed that he was on his way to the hospital to be examined. He also stated that, when he came back from the hospital the second time, he went to see the CNYPC nurse and advised her that he was having headaches and that his right wrist hurt. He testified that his right wrist is still in a "sprain brace" and that he still suffers from headaches three to four days a week, and that, prior to the fall, he never had headaches.
SCTA Brown testified that Officer Cady got Claimant out of the van. He said that the Officer was on Claimant's right side when Claimant fell. He stated, on cross-examination, that Claimant had one foot on the ground and his other foot on the stool that is used as an intermediate step to assist the residents in getting out of the van. Mr. Brown stated that, at that point, he turned around to get paperwork out of the van and, when he turned back around, seconds later, Claimant was lying on the ground. The witness stated that he did not see Claimant have any problems with his balance prior to the fall (see Ex. B).
Officer Cady testified that, during the trip to the hospital and back to CNYPC, Claimant was handcuffed, with a waist chain, a black box covering the handcuffs, and leg irons. Officer Cady testified that he parked the van at Building 41 at CNYPC when they returned from Claimant's medical appointment. He then got out of the vehicle and walked around to open the side doors to the van to assist Claimant in getting out of the vehicle. He stated he opened the side doors and set the metal stool on the ground; he grabbed Claimant by the waist chain and, when Claimant was securely on the ground, he let go of the waist chain, bent down to pick up the step stool to put it back in the van and then secure the van. He stated that Claimant started to move forward, so he dropped the stool, turned and ran after Claimant, trying to grab him and keep him from falling, but was not successful (see Ex. A).
The witness stated on cross-examination that, once the resident is out of the van, the van has to be secured before the resident can move. He also testified that there was no indication that Claimant had any balance issues prior to his fall, or that Claimant was going to fall.
In the operation of its correctional facilities, hospitals, and other institutions, the State is required to use reasonable care to protect people from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342, 346 [1947]; Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]; Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]; Castiglione v State of New York, 25 AD2d 895, 896 [3d Dept 1966]). However, the State is not an insurer of safety and negligence will not be inferred from the mere happening of an incident alone (Spiratos v County of Chenango, 28 AD3d 863, 864 [3d Dept 2006]; Colon v State of New York, supra; Mochen v State of New York, supra). In order to recover, Claimant was required to demonstrate, by competent evidence, that the State failed to use adequate supervision to prevent that which was reasonably foreseeable (Colon v State of New York, supra; Mochen v State of New York, supra; see Flaherty v State of New York, supra at 346).
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. In determining whether the State breached its duty of care to Claimant in this instance, the Court must assess the witnesses' credibility. The Court finds that the State employees provided generally sincere and forthright testimony, however, the Court finds that Claimant was less credible. The Court finds that SCTA Brown did not witness Claimant's fall, as he had turned around to collect paperwork from the vehicle. However, prior to turning around, he stated that Claimant was out of the van and had one foot on the ground and the other on the step stool and that Officer Cady was right next to Claimant. Officer Cady stated that he took hold of Claimant's waist chain and helped him out of the vehicle; that Claimant had both feet on the ground when Officer Cady bent over to pick up the step stool to put it in the vehicle, so he could secure the vehicle, when he noticed that Claimant was moving forward and he could not get him in time to prevent him from falling. The Court finds that Claimant did not meet his burden of proof and failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with its supervision of him. Defendant provided two employees to transport Claimant to and from his doctor's appointment. Both employees testified that Claimant did not exhibit any signs of having balance issues prior to his fall, and Officer Cady stated that there was no indication that Claimant was about to fall when he did. The Court concludes that Claimant failed to establish that Defendant was on notice that Claimant had any issues regarding his balance or that he was going to fall or that the State failed to adequately supervise Claimant to prevent that which was reasonably foreseeable.
Based upon all the foregoing, the Court concludes that Claimant failed to establish his Claim by a preponderance of the credible evidence, and the Claim is dismissed.
All motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
January 25, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims