Opinion
125108
04-03-2019
JZ, an infant by her mother and natural Guardian, Qiu Ping Wu, Claimant. v. The STATE of New York, Defendant.
DESIMONE & ASSOCIATES, LLC, Ralph DeSimone, Esq., David Beke, Esq. HON. LETITIA JAMESAttorney General for the State of New York, Edward Curtis, Assistant Attorney General
DESIMONE & ASSOCIATES, LLC, Ralph DeSimone, Esq., David Beke, Esq.
HON. LETITIA JAMESAttorney General for the State of New York, Edward Curtis, Assistant Attorney General
Walter Rivera, J.
The New York City Children's Center, Queens Campus, is a facility operated by the New York State Office of Mental Health which provides schooling and psychological treatment to its patient-residents. Claimant, JZ, was admitted to the Children's Center on June 9, 2014, when she was 15 years old. On July 14, 2014, claimant sustained injuries due to the assaultive behavior of IW, another patient, during the course of three violent attacks by IW that occurred that day at approximately 9:00 a.m., 9:30 a.m. and 4:00 p.m.
The patients at the Children's Center are referred to by only their initials to protect their identity.
The trial of this matter was bifurcated and this Decision pertains solely to liability.
The Court has carefully considered all the exhibits received in evidence and has assessed the credibility of the witnesses who testified at trial and weighed their testimony accordingly. The Court has also considered the testimony of William Lybarger, Ph.D. who testified on behalf of claimant as an expert in mental health services and management of health and human services facilities (T:212-220). The Court found the testimony of claimant's expert to be well reasoned and convincing and that his opinions were supported by the facts adduced at trial. Also, particularly compelling to the Court was the forthright testimony of claimant, her mother, and the Children's Center employees: aide Jared Campbell, Registered Nurse Abdullahi Gali and Registered Nurse Daniela Scagluiso. Their testimony and the other evidence that the Court relied upon in rendering its determination on the issue of liability is summarized as follows.
References to the trial transcript are preceded by the letter "T."
Prior to claimant's admission to the Children's Center, claimant was in a gifted and talented student program in middle school and then attended Brooklyn Technical High School (T:36-37). She described herself as an introverted, shy person who struggled with self-image and was a self-inflicted cutter who was nonviolent towards others (T:37). When claimant was admitted to the Children's Center she was struggling with depression, anxiety, insomnia and an eating disorder (T:42). She was 5 feet, one inch tall and weighed approximately 89 pounds (T:41-42).
There were approximately 20 patients in claimant's assigned unit (T:47). The unit lived together, ate together, attended classes together, and was escorted 24/7 by essentially the same staff members (T:47). Claimant described the staff members as persons charged with keeping the patients in a routine, safe environment and preventing any verbal or physical fights among the patients (T:47, 49).
The deposition testimony of Jared Campbell was read into evidence at trial by claimant's counsel and defense counsel called Campbell to testify in court. Campbell was employed by the Children's Center for 27 years as a secure care treatment aide (T:176, 370). He explained that initially, the Children's Center had "extremely aggressive" patients and Campbell's duties were to maintain security within the facility (T:176). More than 10 years ago, however, the patients admitted to the Children's Center were less aggressive and Campbell's duties changed from maintaining security to direct patient care (T:176-177).
Campbell's duties included escorting patients to programs and intervening in crisis situations, which meant diffusing any patient altercations before they became physical (T:177, 178, 371). Campbell stated that, "if staff observes one student verbally abusing another, getting confrontational, your job is to get in the middle and stop it from escalating" (T:178, 371). Campbell explained that the first step is to verbally intervene (T:178). If that is not effective, then the patients are separated into different locations before the situation becomes physical (T:178, 371).
If an incident does become physical, an "all-available" is called over the P.A. system, which directs more staff to the location (T:182-183, 372). Typically, one staff member is assigned to a classroom. If that one staff member cannot remove the aggressor, then upon arrival of another staff member, the staff would do a "two-person removal" and escort the aggressor out of the area (T:183). A wrap could also be used to remove the aggressor (T:183-184, 374). The aggressor would then be escorted to a seclusion room to calm down (T:185).
Campbell knew IW as a patient who was aggressive at times (T:180). He described IW as having the characteristics of a lion, as compared to a sheep (T:388). Campbell did not know claimant (T:179).
The deposition testimony of Abdullahi Gali was read into evidence at trial by claimant's counsel and defense counsel called Gali to testify in court (T:190-191). Gali was a registered nurse assigned to claimant's unit for basic nursing care, administering medications and escorting patients (T:194). Gali recalled that IW was involved in "maybe five" physical altercations prior to the incidents on July 14, 2014 (T:196). When asked on cross-examination if Gali had a specific recollection of IW being involved in at least five fights prior to July 14, 2014, Gali responded "not exactly five, but I know she had a couple of fights, physical altercations with others" (T:465-466, 468).
The First Incident
Claimant testified that the first incident occurred on July 14, 2014 at approximately 9:00 a.m. in the day hall. The day hall was similar to a living room, where patients gathered to socialize (T:45). There were four to five staff members present in the day hall when IW and another patient, DCL, became involved in a verbal dispute (T:45-46). The dispute escalated when IW began threatening DCL that she was "going to get it" and IW kept moving closer and closer to DCL (T:45, 50). As IW charged towards DCL, claimant attempted to block DCL from IW and said, "wait, stop"(T:78). Claimant was knocked down and hit her back and arm against the furniture resulting in injuries (T:48). Claimant never struck IW (T:50).
Claimant estimated that two to three minutes had elapsed from the time of the IW's verbal threats directed at DCL and claimant's fall (T:48-49). During those two to three minutes, the staff did nothing to de-escalate the situation (T:49).
After claimant fell, she witnessed the fight between IW and DCL continue into the hallway with two other patients, CB and MO, joining the fight (T:87, 94, 117). The fight continued for another minute or two at a distance of approximately 35 feet from where claimant had fallen (T:48-49, 118-119). Claimant estimated that IW threw more than 10 punches during the fight.
An "all available" call was announced regarding the fight (T:196). Registered Nurse Gali responded and saw DCL, IW, MO and claimant clustered on top of each other in a fight in the hallway (T:196-198, 441). Gali observed the fight and heard screaming for approximately ten seconds before the patients were separated (T:198-199). Gali intervened verbally, but did not recall if that is how the patients were separated (T:199). He explained that the staff tries to separate the patients verbally. If that is not effective, and there is enough staff present, then the patients are physically separated (T:204-205).
Claimant was very upset and frightened after the first incident (T:51). When asked at trial, what if anything the Children's Center did to prevent any further incidents, claimant responded, "nothing" (T:52). On cross-examination, claimant testified that she did not recall speaking with her assigned therapist, Dr. Laura Chin, after the first incident because claimant was "a bit numb" to her surroundings at that time (T:88, 90). Claimant conceded, however, that she may have spoken with Chin after the first incident, but that claimant did not recall the details (Ex. 17, p 98).
The deposition testimony of Dr. Laura Chin was read into evidence at trial by claimant's counsel and defense counsel called Chin to testify in court. Chin was employed by the Children's Center as a psychologist. She provided therapy to patients and their families and was assigned to claimant. According to Chin, claimant had no disciplinary or behavioral issues (T:284-285).
Chin's duties included crisis management, which required her response to an "all-available" call when incidents, such as fights, could not be de-escalated by the staff present at the scene (T:277-278). Chin testified that she and the staff were trained in how to de-escalate altercations and how to use restraints (T:301-302). Restraints, however, could only be used with a doctor's order (T:302-303). Seclusion was also an available option (T:307).
Chin learned of the first incident before 9:00 a.m. when an "all-available" call was made over the loud speaker (T:285). Chin responded to the scene within two minutes (T:287). Claimant was very upset and crying and did not say much (T:287, 291). She was noted to be "too upset to speak," and when Chin inquired of claimant as to what had happened, claimant responded, "ask staff" (T:270). Chin learned from the staff that claimant had been injured in a fight and that the staff had broken up the fight (T:326).
Chin did not recall if she had reported the incident to anyone and maintained that the staff should have reported it because they had been involved with stopping the fight (T:327). Chin further maintained that because claimant was injured in a fight, she would have been examined by a nurse who would have thereafter made an incident report and notified claimant's parents (T:323, 324, 327). Chin testified that if there was no incident report then, "it was overlooked" (T:325-326). Shortly after the first incident, Chin left the Children's Center to attend an appointment. Claimant remained with another therapist until Chin returned to continue her meeting with claimant about the first incident.
William Lybarger, Ph.D., claimant's expert, testified that the Children's Center had policies and procedures regarding staff intervention to address the behavioral issues of patients (Ex. 24; T; 224, 227). The interventions were listed and ranked from most intense to least severe, with a most intense action being to spray a patient in the face with cold water from a spray bottle (T:227-229). Separation was also listed as an available intervention (T:229).
Lybarger opined that the Children's Center's staff had been appropriately trained in the policies and procedures, but that the training required implementation and direct supervision to ensure that the training was exhibited by the staff. Lybarger noted that there were prior violent incidents involving IW, who was known to staff as an aggressor. Lybarger opined that supervisory authority at the Children's Center was not appropriately exercised as evidenced by the violent incidents (T:237-238). He further stated that when violence is not stopped, it is being condoned (T:241-242).
Having worked in and managed facilities like the Children's Center, Lybarger had observed a "pecking order" established among the patients and he classified IW as a "ringleader" (T:222-233, 234, 258-259). Lybarger opined that the staff should have exercised a method of early intervention by separating claimant and IW before any physical altercation occurred. Additionally, Lybarger opined that if claimant had sufficient time to intervene between IW and DCL, then the staff also had sufficient time to intervene (T:239).
Lybarger concluded that the Children's Center did not follow its own policies and procedures and that such failure was a contributing cause of the first incident. He explained that, had the Children's Center followed its own policies and procedures, the first incident could have been prevented or de-escalated before it became physical.
The Second Incident
Soon after the first incident, at approximately 9:30 a.m., claimant and her unit moved from the day hall to a classroom (T:53, 70). There were five to ten students in the classroom (T:296). Claimant was seated approximately 10 to 12 feet across from IW (T:53-54). IW began singing and dancing, targeting claimant and threatening that claimant is "going to get it" (T:53-54). IW continued taunting claimant as IW had done to DCL in the first incident (T:53-54). There were "at least 3 staff members" present who had been present with the unit during the first incident (T:55). The class teacher was also present (id. ). As IW taunted claimant, there was laughter "across the classroom" (id. ). Claimant became frightened and confused because no one did anything (id. ). IW taunted claimant for four to five minutes while the staff did nothing (T:55-57). The staff did not ask IW to sit down and did not make any attempt to stop IW from taunting claimant (T:55-57). When asked on cross-examination if she had told any staff members that she was being taunted by IW, claimant responded, "No, I didn't think there was a need to, since they were there, and it was a pretty small classroom" (T:100). She further testified that, given how explicit the taunting was, she expected that the staff would intervene (T:101).
IW then charged towards claimant, who was seated, and knocked claimant over backwards (T:56). Claimant hit her head hard (id. ). IW held onto claimant's hair as IW continued to beat, kick, punch and scratch claimant (id. ). Claimant tried to cover and protect herself, but she never struck IW (T:57). Another patient, MO, joined IW and they continued to beat claimant (id. ). According to claimant, none of the staff, who were the same staff who had witnessed the first incident, intervened or attempted to de-escalate the situation (T:57, 122).
It was also elicited on cross-examination that just prior to IW's attack on claimant, CB had attacked AM in the same classroom (T:102).
When IW lost her grip on claimant's hair, claimant ran and hid in the nearest classroom (T:56). Claimant was stunned by how much hair had been pulled out of her head and clumps of her hair continued to fall out (T:115, 116). She kept a handful of her hair and gave it to her mother when she came to visit claimant at the Children's Center later that night (T:116).
Claimant described this second incident as a "full-on beating," lasting two to three minutes, where she was punched more than 15 times and kicked approximately 10 times (T:56-58, 120). Claimant stated that it was an assault to every part of her body and that she sustained multiple bruises and abrasions throughout her whole body and had difficulty sitting thereafter (T:56-58). Her head was bleeding and swollen, and she hurt her fourth and fifth fingers, which she later learned had been fractured (T:56, 58, 116).
Claimant conceded on cross-examination that two to three minutes was an approximation and not an exact amount of time (T:76, 77).
Lybarger, claimant's expert, opined that the second incident could have been prevented or de-escalated before it became physical. He reasoned that after the first incident of violence by IW, the possibility of another altercation should have been anticipated by the staff (T:235). There were two alternatives available. IW and claimant could have been separated or a one-on-one supervision could have been assigned to IW to diffuse any aggression before it escalated to physical conduct (T:235-236). Lybarger noted that not only did the staff fail to take any precautionary steps to prevent future incidents, neither claimant nor IW were ever removed or separated (T:231). Rather, the staff "watched the beating take place, as opposed to intervening either to prevent the assault or to stop the assault" (T:230).
Lybarger concluded that the Children's Center did not follow its own policies and procedures and that such failure was a contributing cause of the second incident. He explained that, had the Children's Center followed its own policies and procedures, the incident could have been prevented or de-escalated before it became physical (T:234).
The deposition testimony of Daniela Scagluiso was read into evidence at trial by claimant's counsel and defense counsel called Scagluiso to testify in court. Scagluiso was employed as a registered nurse at the Children's Center (T:477). She was trained in crisis prevention which included: how to de-escalate a situation; preventing the triggers of an aggressor; removing aggressive patients from those whom they may harm; and how to apply a wrap to a violent patient (T:417-420).
Scagluiso was called to assess claimant after the second incident, which occurred in the classroom at approximately 9:30 a.m. (T:423-424, 478). Scagluiso escorted claimant to the nurse's station and comforted claimant (T:423). The Children's Center did not have an x-ray machine, CT scan or an MRI at their facility (T:492). When Scagluiso asked claimant what had happened, claimant said that she was pushed and fell and hit the back of her head (T:425, 481). Claimant did not provide any other details to Scagluiso (T:425). Scagluiso later learned the details of the incident from other staff members (T:428).
Scagluiso noted that claimant's head was swollen and that she had injuries to her nails and bruises and abrasions on her arms (T:426-427). Scagluiso gave claimant an ice pack for her head and acetaminophen (T:426, 429). Claimant was also given a Band-Aid for her fingers (T:58). No bleeding or broken skin was noted (T:481). Claimant's pain level was assessed as a five on a scale of zero to five (T:444; Ex. 17, p 86).
Claimant remained at the nurses' station until the afternoon and, according to claimant, her two fingers were "bleeding throughout the whole day after the second incident" (T:60, 111). At 12:00 noon, claimant's pain assessment was zero. Dr. Geller's note at 2:45 p.m. directed that claimant be sent to Long Island Jewish Hospital emergency department for medical clearance of head trauma (T:448, 449). When claimant was asked on cross-examination if she ever told the staff that she was no longer in pain, she responded that she was "definitely" experiencing pain, but that she may have been "just trying to cause less trouble to everyone" (T:105). Claimant was "extremely frightened" after the second incident (T:105).
While claimant testified that she was not comforted or given any emotional support by the staff, she did recall on cross-examination that she had spoken briefly to Dr. Chin after the second incident (T:59, 91). Chin had returned to the Children's Center before noon to continue her meeting with claimant regarding the first incident. At that time, claimant told Chin about the second incident that had occurred during Chin's absence (T:292, 321, 331). Chin observed bruises on claimant's arms and fingers and that hair had been pulled from claimant's head (T:292-294, 322).
The Third Incident
Later that day, Registered Nurse Gali heard an "all-available" call, but did not recall the details of that incident (T:202). A third incident occurred at approximately 4:00 p.m. (T:59). The staff that had been present for the first two incidents directed claimant's unit to join IW's unit in the day hall (T:60-61). Before entering the day hall, claimant was greeted by a staff member at the doorway (T:113-115). The moment claimant entered the day hall, IW knocked claimant to the floor and got on top of claimant and beat her (T:61). Claimant could not get up off the floor (T:62). The attack lasted two or three minutes (T:61). Claimant was then dragged on the floor by staff and pulled away from the scene (T:61). Claimant sustained further physical injuries and was further traumatized by the third incident (T:62). Prior to the date of the incidents, claimant had never had an issue with IW or anyone else at the Children's Center (T:63).
Lybarger, claimant's expert, opined that, similar to the second incident, the third incident could have been prevented or de-escalated by the staff before it became physical by employing "early intervention, positive intervention, separation" (T:236-237). Lybarger concluded that the Children's Center did not follow its own policies and procedures and that such failure was a contributing cause of the incident (id. ).
Dr. Geller's 2:45 p.m. order to transport claimant to Long Island Jewish Hospital for medical clearance of head trauma was cancelled at 5:00 p.m. by Dr. Mesidor, the medical director, who indicated that claimant did not require any further medical treatment (Ex. 17, pp 9, 105; T:429, 449, 450, 487-488, 490-491). Registered Nurse Scagluiso did not agree with Dr. Mesidor's cancellation of the order to send claimant to the hospital (T:492-494). Therefore, Scagluiso called her nursing supervisor to alert the supervisor that the order to transport claimant to the hospital was cancelled and that this concerned Scagluiso (T:497). She felt, "when in doubt, send them out" (T:495). Scagluiso later learned that claimant had sustained a subdural hematoma and fractured fingers (T:491). At 6:00 p.m., claimant's pain assessment was three (T:446, 447).
According to claimant, her parents were not notified of the incidents; rather, claimant's aunt visited claimant that evening and informed claimant's mother of claimant's physical and emotional condition (T:63, 65). According to Dr. Chin, in the early afternoon of July 14, 2014, she left a voice mail for claimant's parents informing them that claimant had been attacked (T:299, 327-328; Ex. 17, pp 98-99).
Claimant's mother, Qiu Ping Wu, testified that she received a telephone call from her sister at approximately 5:00 p.m., indicating that she had visited claimant at the Children's Center and that claimant was in distress. Claimant's mother left her place of employment and arrived at the Children's Center just before the 4:00 p.m. to 8:00 p.m. visiting hours which were about to end (T:145).
In the past, Wu had waited less than five minutes before seeing claimant; however on this occasion, Wu waited approximately 20 minutes before a "line manager" and a doctor appeared and told Wu that claimant "was sleeping ... don't worry, and go home" (T:130, 131). Wu's sister, who was also present, told Wu that claimant had been beaten up, her head and her hand were bleeding and that she was crying (T:133). Wu indicated to the doctor and the line manager that she would not leave until she saw her daughter. The doctor assured Wu that he had examined claimant and that she was fine (T:130). Wu refused to leave and waited to see claimant.
At approximately 10:00 p.m., claimant was brought to see Wu (T:133). Wu asked claimant if she had been sleeping and claimant said that she could not sleep because she was very scared (T:135). Claimant held a napkin on her head where she was bleeding and her hand was also bleeding (T:134). There were bruises "all over her body" and her hair had been pulled out (T:134). Wu demanded that claimant be taken to a hospital (T:134). Wu was told that claimant did not need to go to the hospital because she was OK and that the Children's Center did not have the staff to transport claimant to the hospital (T:135). Wu was willing to transport claimant to the hospital herself (T:135). However, the line manager finally agreed to transport claimant to the emergency room at Long Island Jewish Hospital (T:136, 138). Claimant's mother and aunt followed in another car. At the hospital, claimant's fingers were x-rayed and it was revealed that claimant's fingers had been fractured (Ex. 17, p 75; T:454). Claimant did not return to the Children's Center after her hospital visit.
Analysis
Claimant alleges that the Children's Center, which provided schooling and psychological treatment to its patient-residents, was negligent in its failure to provide adequate supervision. Specifically, claimant contends that the staff failed to take any precautionary measures to address the foreseeable risks of assault by IW and failed to either intervene or attempt to de-escalate any of the three incidents that occurred on July 14, 2014 before they became physical.
The Children's Center does not dispute that the three incidents occurred. Rather, the Children's Center maintains that the first incident was not foreseeable and that the Children's Center did not have notice of the first incident because, inter alia, there was no incident report. Accordingly, the Children's Center maintains that the second incident could not have been foreseeable to the Children's Center. As to the third incident, which occurred after claimant's unit was combined with IW's unit, the Children's Center maintains that it exercised its discretion in combining the units and therefore its conduct cannot be subject to liability because the State is entitled to qualified immunity for the Children's Center's exercise of its discretion.
Preliminarily, the State's argument, that it cannot be held liable for any negligence of the Children's Center which involved an exercise of its discretion because the State is entitled to qualified immunity, is contrary to the applicable case law. The services provided by the Children's Center are proprietary in nature and therefore its conduct is subject to liability under the ordinary principles of negligence (see Applewhite v. Accuhealth, Inc. , 21 NY3d 420, 425-426 [2013] ; Schrempf v. State of New York , 66 NY2d 289 [1985] ). Accordingly, for the State to be held liable in this matter, claimant must establish, by a preponderance of the credible evidence, that the Children's Center was negligent in its failure to timely and adequately address a foreseeable risk of harm posed by IW and that such failure was a proximate cause of any resulting physical and psychological injuries that claimant sustained (see Mirand v. City of New York , 84 NY2d 44 [1994] ).
The Children's Center provided psychological treatment to its patients along with residence and schooling. Accordingly, the following cases are instructive because they address a school's duty to supervise the students in its charge which arises from the school's physical custody over them (see Chainani v. Board of Educ. of City of NY , 87 NY2d 370, 378 [1995] ; Pratt v. Robinson , 39 NY2d 554, 560 [1976] ).
It is well settled that schools are under a duty to adequately supervise their students and that the school will be held liable for "foreseeable injuries proximately related to the absence of adequate supervision" ( Mirand v. City of New York , 84 NY2d at 49 ; see Brandy B. v. Eden Cent. School Dist. , 15 NY3d 297, 302 [2010] ). "The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" (see Palopoli v. Sewanhaka Cent. High Sch. Dist. , 166 AD3d 639, 641 [2d Dept 2018] ). Where negligent supervision in the context of injuries caused by an individual's intentional acts is alleged, it must be demonstrated that the school "knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable" ( id. at 641 citing Mirand v. City of New York , 84 NY2d at 49 ).
"Actual or constructive notice to the school of prior similar conduct is generally required because, obviously, school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily; an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ( Mirand , 84 NY2d at 49 ). Even where a breach of the duty of supervision is established, it must be demonstrated that such negligence was a proximate cause of the injuries sustained (see id. ; K.J. v. City of New York , 156 AD3d 611, 613 [2d Dept 2017] ). The test for causation is "whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence" ( K.J. , 156 AD3d at 613, quoting Mirand , 84 NY2d at 50 ).
The Court finds that the Children's Center had actual knowledge of IW's propensity for violence prior to July 14, 2014 as set forth in the testimony of aide Jared Campbell that he knew IW to be an aggressor with the characteristics of a "lion" and the testimony of Registered Nurse Gali that he had personal knowledge that IW had more than one physical altercation with others prior to July 14, 2014 (T:388, 465-466; see Gaston v. East Ramapo Cent. Sch. Dist. , 165 AD3d 761, 763 [2d Dept 2018] [no issue of fact as to whether school had knowledge of offending student's dangerous propensities where he had been involved in other assaultive altercations with fellow students in the recent past]; K.J. , 156 AD3d 611 [summary judgment dismissing complaint denied to defendant given the witnesses' testimony regarding the disciplinary history of the assailant]; RT v. Three Vil. Cent. Sch. Dist. , 153 AD3d 747 [2d Dept 2017] [summary judgment dismissing complaint denied to defendant where there was an issue of fact as to whether defendant had knowledge of offending classmate's dangerous propensities due to his involvement in other altercations with classmates in the recent past] ). Nonetheless, the Children's Center failed to take any measures to address the foreseeable risk that IW could again become an aggressor in a violent attack upon an unsuspecting patient, such as claimant, who had no issues with IW prior to July 14, 2014 (T:63).
At the conclusion of the trial, defense counsel argued that the clinical information regarding IW was not admissible under Mental Hygiene Law § 33.13 (c) and that IW's incident reports were also protected by Education Law § 6527 and Mental Hygiene Law § 29.29 (T:502, 509). Defense counsel conceded that IW's prior assaultive behavior or violent propensities would be non-medical admissible information; however he argued that it would only be admissible upon submission to the Court for an in camera review and that this had not been done during discovery prior to the reassignment of the trial judge (T:509-510). The trial judge noted that the documents were all received into evidence without objection from defense counsel (T:510-512). Additionally, claimant's counsel noted that claimant had relied only upon the incident reports that were stipulated into evidence by defense counsel (T:513). Claimant's counsel was never provided with any clinical records of IW. Rather, claimant's expert relied upon the staff members' personal knowledge as professed in their testimony (T:512). The parties also addressed these issues in their post-trial memoranda. The Court finds that defense counsel's arguments are without merit. As claimant's counsel correctly noted, the testimony of Registered Nurse Gali and aide Jared Campbell established that they had personal knowledge of IW as an aggressor who had been involved in more than one fight prior to July 14, 2014 and claimant's expert relied upon the personal knowledge of these witnesses in rendering his expert opinions (T:388, 465-468, 487).
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On July 14, 2014, at approximately 9:00 a.m., four to five staff members were present in the day hall when the first incident escalated from a verbal dispute to a violent attack by IW (T:45-46). The staff was present when IW taunted her target (DCL) for two to three minutes as she moved closer and closer before charging towards her victim (T:45, 50). IW's actions were consistent with Campbell's description of IW as having previously exhibited the characteristics of a lion (T:388).
Despite the presence of four to five staff members, whose duty was to employ the Children's Center's policies and procedures to de-escalate altercations before they became physical and whose presence was intended for that very purpose, not one staff member made any effort to diffuse the volatile situation during the two to three minutes that elapsed as IW's verbal threats became physical (T:48-49, 177-178, 371; Ex. 24, pp 224-227, 229; see Mirand , 84 NY2d at 50 [school held liable where "no action was taken to prevent escalation of incident" by staff who "was in a position to assist"]; Guerriero v. Sewanhaka Cent. High Sch. Dist. , 150 AD3d 831 [2d Dept 2017] [circumstance did not show that the teacher "had no time to prevent" assault] ). Accordingly, the very harm which was intended to be avoided by the employment of those staff members was condoned by their passivity.
Claimant, a patient who was neither trained nor equipped to de-escalate such situations, interjected herself into the fray in an effort to stop the attack by IW against another patient (T:78). Claimant's efforts, though laudable, were not met with support from the staff, but with violence from the attacker (T:48). Indeed, as noted by claimant's expert, if claimant had an opportunity to intervene and attempt to de-escalate the situation before it became physical, so too did the staff have the same opportunity (T:239; K.J. , 156 AD3d at 614 ["(i)n determining whether an incident occurs ‘in so short a span of time that even the most intense supervision could not have prevented it’ ... ‘(t)he issue is not the speed of the punch, but the circumstances leading up to and surrounding’ the incident"] ). Despite claimant's herculean efforts, the complacent staff was not roused into action (see Williams v. Student Bus Co., Inc. , 170 AD3d 1085 [2d Dept 2019] citing Lawes v. Board of Educ. of City of NY , 16 NY2d 302, 305 [1965] ["a school is bound ‘to take energetic steps to intervene’ "]; Palopoli , 166 AD3d at 642 [whether school took "energetic steps to intervene" was an issue in determining proximate cause] ). As claimant was knocked down, the fight continued for another minute or two and moved a distance of approximately 35 feet into the hallway with two other patients joining in the melee (T:48-49, 118-119).
An "all-available" call was made and Registered Nurse Gali responded to what he described as a cluster of patients on top of each other in the hallway (T:196-198, 441). He observed the fight and heard screaming for approximately 10 seconds before the patients were separated (T:198-199). He intervened verbally, but did not recall if his efforts were attributable to the patients separating (T:199).
The Court concludes that the Children's Center was negligent in its failure to take any precautionary measures that were readily available in the face of a known and foreseeable risk of harm and that its delayed response to the incident was a proximate cause of the injuries claimant sustained in the first incident.
The Court rejects defense counsel's arguments that the Children's Center did not have notice of the first incident because claimant failed to report it and there was no incident report. The Court finds defense counsel's arguments to be disingenuous and that any failure to make a report of the incident should not befall claimant. As noted by Dr. Chin in response to her inquiry of claimant shortly after the attack, claimant was "too upset to speak" and therefore directed Chin to "ask staff" about the details of the incident (T:88, 90, 270, 326). The Court further finds that the absence of an incident report is attributable to the failure of the Children's Center staff to make such report. Specifically, an incident report should have been made by any of the four to five staff members present when the incident occurred, Registered Nurse Gali who responded to the "all available" call, the nurse who treated claimant, or Dr. Chin. It is telling that Dr. Chin testified that if there was no incident report, then "it was overlooked" (T:325-326).
Moreover, even without an incident report, there was an abundance of proof that the Children's Center had actual notice of the first incident as evidenced by the presence of the staff members at the scene, the "all-available" call announced over the PA system, and Registered Nurse Gali's and Dr. Chin's response to the "all-available" call. Thus, the Court finds that the Children's Center had actual notice of the first incident.
The Court further finds that the second incident was clearly foreseeable given that the same staff members who had witnessed the first incident were present as the second incident unfolded and the short time frame between the two incidents ( Mirand , 84 NY2d at 50 ["the violent acts which caused (claimant's) injuries were sparked by a prior altercation and ... threat of which defendant ... was ... aware; yet no action was taken to prevent escalation of the incident"] ). Yet despite the Children's Center's actual notice of the first incident, no precautionary measures were taken to either separate IW and claimant or to assign a one-on-one supervision to IW to diffuse any aggression before it escalated into physical contact in the second incident (see Mirand , 84 NY2d at 50 [school was on notice of "imminent danger to (claimant) and did nothing reasonably calculated to protect her from that danger"] ).
Following the first incident, IW taunted claimant for four to five minutes in the same manner that she had taunted DCL in the first incident (T:57). The staff, who had been present during the first incident and did nothing to de-escalate that situation before it became physical, essentially watched an instant replay of the first incident and did nothing to attempt to de-escalate the second incident nor took any steps to intervene (T:55, 57). Accordingly, the Court concludes that the Children's Center's failure to take any precautionary measures after the first incident or to make any effort to de-escalate the second incident before it became physical as the situation had in the first incident, to be an egregious act of negligence and a proximate cause of claimant's injuries sustained in the second incident.
With regard to the third incident, the Court finds that the Children's Center's act of combining claimant's unit with IW's unit, rather than ensuring that claimant and IW were separated, was akin to throwing claimant to "the lion," a term used to describe IW by aide Jared Campbell (T:388). The Court concludes that the Children's Center was negligent and acted with complete disregard for the safety and well-being of claimant and that this was a proximate cause of the injuries sustained by claimant in the third incident ( Mirand , 84 NY2d at 50 ["proper supervision depends largely on the circumstances surrounding the event" and absence of security or supervising personnel when "vigilance was absolutely essential constituted the proximate cause" of the injuries sustained] ).
In sum, the Court finds that claimant has established, by a preponderance of the credible evidence, that the Children's Center was negligent in its failure to provide timely and adequate supervision and that such failure was a proximate cause of the physical and psychological injuries sustained by claimant in the three incidents that occurred at the Children's Center on July 14, 2014 (see Walley v. Bivins , 81 AD3d 1286 [4th Dept 2011] [school's failure to comply with its own security plan and practice of counseling a violent student presented an issue of fact regarding proximate cause]; Shante D. v. City of New York , 190 AD2d 356 [1st Dept 1993] [student previously exhibited violent tendencies placed school on notice that the student would assault again if given the opportunity] ). Thus, the State is found to be 100 percent liable for the injuries sustained by claimant.
Claimant also alleges that the Children's Center was negligent in its failure to provide claimant with timely and adequate medical care and treatment.
To prove that the State failed in its duty to provide claimant with timely and adequate medical care and treatment, claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of medical care and that such departure was a proximate cause of claimant's injuries (see Mullally v. State of New York , 289 AD2d 308 [2d Dept 2001] ; Kaminsky v. State of New York , 265 AD2d 306 [2d Dept 1999] ; Tonetti v. Peekskill Community Hosp. , 148 AD2d 525 [2d Dept 1989] ). Expert medical opinion is required to establish that the State's alleged negligence caused or contributed to claimant's injuries (see Wood v. State of New York , 45 AD3d 1198 [3d Dept 2007] ). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that the State's conduct constitutes a deviation from the requisite standard of care (see Stuart v. Ellis Hosp. , 198 AD2d 559 [3d Dept 1993] ; Sohn v. Sand , 180 AD2d 789 [2d Dept 1992] ).
Here, the record is devoid of any expert medical testimony that the Children's Center departed from good and accepted standards of medical care in its medical care and treatment of claimant or its delay in sending claimant to a hospital and that any such departure proximately caused or contributed to claimant's injuries. Accordingly, the Court finds that claimant has not met her burden of proof as to the cause of action alleging untimely and inadequate medical care and treatment; therefore that cause of action is hereby DISMISSED.
Similarly, to the extent that claimant alleges that she was not provided with timely and adequate psychological care and treatment, claimant failed to establish by a preponderance of
the evidence that the Children's Center departed from good and accepted standards of psychological care and treatment and that any such departure proximately caused or contributed to claimant's injuries. In that regard, claimant's expert, William Lybarger, Ph.D., testified that claimant was not receiving "the appropriate standard of care" because in a "reasonably well managed facility" claimant should not have been exposed to physical violence by another patient because "it is not therapeutic" (T:242-243). While the Court does not disagree with claimant's expert and finds that the manner in which the Children's Center managed claimant's care and treatment and showed utter disregard for claimant's family members was deplorable, the testimony of claimant's expert was conclusory and insufficient to meet claimant's burden of proof. Accordingly, to the extent that claimant alleges inadequate and untimely psychological care and treatment, claimant has not met her burden of proof and therefore that cause of action is also hereby DISMISSED.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
A trial on the issues of damages will be held as soon as practicable.