Opinion
# 2015-049-101 Claim No. 121241
02-10-2015
CHERYL McCOLLINS, as General Guardian of ANDRE McCOLLINS, a Mentally Retarded Person v. THE STATE OF NEW YORK
Burns & Harris By: Christopher J. Donadio, Esq. Eric T. Schneiderman, New York State Attorney General By: Cheryl M. Rameau, Assistant Attorney General
Synopsis
Following trial, the Court dismissed a claim seeking monetary damages for a sexual assault that took place at a state-run residential facility for the developmentally disabled.
Case information
| UID: | 2015-049-101 |
| Claimant(s): | CHERYL McCOLLINS, as General Guardian of ANDRE McCOLLINS, a Mentally Retarded Person |
| Claimant short name: | McCOLLINS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121241 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Burns & Harris By: Christopher J. Donadio, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Cheryl M. Rameau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 10, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This case arises out of a claim filed on April 30, 2012 on behalf of Andre McCollins ("AM" or "McCollins") by his mother and guardian Cheryl McCollins ("CM"). The claim alleges that on August 29, 2011, AM was sexually assaulted at his place of residence, the Brooklyn Developmental Center ("BDC"), by his roommate Joseph DiLorenzo. BDC is a State-run residential facility for the developmentally disabled.
A trial was conducted on this claim on December 5 and December 8, 2014. Claimant introduced into evidence two documents: an investigative report conducted by BDC of the August 29 Incident, and certain records of AM. The former gave the following account: During a counseling session on August 31, 2011, AM reported to his psychologist Hasan Shabazz that two days prior, DiLorenzo had "sexually groped" him. Specifically, AM reported that DiLorenzo had pulled down his pants and engaged in oral sex (Cl. Ex. 13 at 3). When interviewed, DiLorenzo acknowledged having engaged in this conduct (id.).
The report concluded that the incident was "substantiated" (id.). Further, it determined that while DiLorenzo was capable of consenting to sexual activity, AM was not (id.). AM's records from the facility confirm that the August 29 incident took place, and that he did not have the capacity to consent.
According to the Report, AM initially told his psychologist that DiLorenzo had engaged in sexual conduct on a number of occasions over a two-week period. DiLorenzo appears to have admitted only to a single instance. The claim cites only the incident on August 29, and that is the only one addressed in the evidence at trial.
Claimant presented the testimony of three witnesses. The first was forensic psychiatrist Eric Goldsmith, who testified as an expert. Dr. Goldsmith had reviewed AM's records, and interviewed both CM and AM in preparation for his testimony. He stated that AM has a diagnosis of mild mental retardation, psychotic disorder, and pervasive developmental disorder. AM has difficulty controlling behavior and emotions, experiences auditory hallucinations, and has difficulty communicating and understanding concepts and directions. Goldsmith determined (as had the facility) that AM did not have the capacity to consent to sexual activity.
Goldsmith had not reviewed any of DiLorenzo's records, although he did consider the BDC investigative report. He noted DiLorenzo's diagnosis, referenced in that report, of cognitive function in the upper levels of mental retardation, and sexual disorder NOS. He said that the latter reflects either "deviant sexual thinking or behavior," or lack of control.
NOS denotes Not Otherwise Specified.
On the basis of that diagnosis, and the reference in the investigative report to unspecified prior inappropriate sexual behavior in the community by DiLorenzo, Goldsmith opined to a reasonable degree of psychiatric certainty that it was "a breach of standard of care" to place McCollins and DiLorenzo in the same room together, and that the State was "negligent." Specifically, he found it improper to place a "sexual predator" with an individual that cannot consent, and that has "difficulty managing his own sexuality." On cross-examination, Goldsmith conceded that he was unaware of how long DiLorenzo had resided at BDC, or if there had ever been any prior incidents of sexual misconduct at the facility.
Goldsmith's testimony as to the ultimate legal question was not proper evidence (see Berger v Tarry Fuel Oil Co., 32 AD3d 409, 409 [2d Dept 2006]), but defendant raised no objection. I consider his testimony only as it relates to the standard of care, as the question of whether defendant was negligent is solely within the purview of the finder of fact.
Claimant also called Hasan Shabazz, the BDC psychologist assigned to McCollins. At the time of the incident, Shabazz met with AM once a week for thirty minutes, and had done so since January 2010. He testified that AM had not, prior to the August incident, registered any complaints about his roommate, or about any sexual assault. Shabazz was not responsible for DiLorenzo, and so had no specific information on his background. He testified, though, that both DiLorenzo and AM lived on an "unlocked wing," where the residents were not subject to the same restrictions as others, since they had displayed "responsible behavior." Such placements are made by a treatment team, composed of a psychiatrist, medical doctor, social worker, psychologist, administrative supervisor and direct care staff. The decision on who will share a room is made by the team leader, based on the personalities of the individuals involved, their preferences and recent history.
Shabazz agreed that McCollins could not give sexual consent. He explained that AM had trouble differentiating between reality and fantasy, and "did not understand the nature of sexual contact."
Finally, CM testified on claimant's behalf. She stated that AM has been living at BDC since 2006. He has pervasive developmental disorder and is autistic. She acknowledged that prior to the incident, AM had not disclosed to her any problems with his roommate, and said he later told her was afraid to speak previously, since the staff says that he makes things up.
At the close of claimant's evidence, defendant moved to dismiss the case, on the ground that claimant had failed to make a prima facie case showing that DiLorenzo's assault was reasonably foreseeable. I reserved decision thereon.
For its part, the State presented the testimony of its own expert, Dr. Edward Hoffman. He has been a psychologist for thirty years, although his last experience working in a facility like BDC was in 1979. His present work primarily concerns testing children under contract with the New York City Department of Education.
I note that there is no evidence Dr. Goldsmith had any such experience.
Hoffman reviewed McCollins' records and the investigative report, although he did not personally interview either AM or his mother. He agreed that AM lacked the capacity to consent, and that given his diagnosis of "psychotic disorder NOS," he had difficulty differentiating reality from fantasy. He concluded, though, that the difference of ten points in IQ between DiLorenzo and McCollins was "not significant." Further, he testified that DiLorenzo's diagnosis of "sexual disorder NOS" was "very broad," and encompasses "any problem related to sexual functioning," including "fixation," and inappropriate behavior. Further, he opined that in determining the likelihood of assaultive conduct, an individual's behavioral history is most important, not diagnosis. He stated that there is no principle which would forbid placing individuals with different ability to consent together in the same room.
On the basis of the foregoing, Hoffman opined that the State's conduct in placing DiLorenzo and McCollins together was "not negligent."
As noted supra note 2, expert testimony cannot address the ultimate issue in the case, and I give Hoffman's opinion on this question no weight, notwithstanding that claimant raised no objection.
Discussion
The State has a duty to protect those under its care from injuries that may "reasonably be anticipated" (Evans v State of New York, 117 AD2d 581, 582 [2d Dept 1986]). It has a concomitant obligation to take protective measures, if it "knew or should have known from past experience" that one of its patients might imperil claimant's safety (see Royston v Long Is. Med. Ctr., Inc., 81 AD3d 806, 807 [2d Dept 2011]). The degree of care owed is "commensurate with a patient's capacity to provide for [his] own safety" (Freeman v St. Clare's Hosp. & Health Ctr., 156 AD2d 300, 300 [1st Dept 1989]).
The State, however, is generally not required to continually monitor a patient's every action, and its negligence cannot be presumed from the occurrence of an injury (see Rella v State of New York, 117 AD2d 591, 592 [2d Dept 1986]; Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]). Rather, to show that the actions that caused injury were reasonably foreseeable, claimant must introduce evidence of prior "similar incidents" or "similar aggressive behavior" (see Royston, 81 AD3d at 807; see also Whidbee v State of New York, 176 AD2d 798, 799 [2d Dept 1991] [harm not reasonably foreseeable when State had no knowledge of assailant's "dangerous proclivities"]; Freeman, 156 AD2d at 300 [defendant liable when on notice that patient who attempted rape "was aggressive and might cause trouble"]). The claimant need not show that the exact injury was foreseeable, so long as "some type of injury may [have been] reasonably anticipated" (Freeman, 156 AD2d at 301).
Here, claimant's proof of foreseeability is limited to two pieces of evidence: DiLorenzo's diagnosis of "Sexual Disorder NOS," and the fact that he had "a history of inappropriate sexual behavior in the community," both statements referenced in the post-incident investigative report (Cl. Ex. 13 at 2). Claimant maintains that this information should have tipped the State off that placing DiLorenzo with McCollins - an individual without the ability to understand or consent to sexual activity - made it foreseeable that a sexual assault would occur.
Such evidence, however, is at best ambiguous. In regard to the diagnosis, both experts described it as potentially encompassing a range of conditions. According to Dr. Goldsmith, this finding could reflect "either deviant sexual thinking or behavior, or inability to control." Dr. Hoffman testified that the diagnosis is "very broad," encompassing "any problem related to sexual functioning," including "fixation" and "inappropriate behavior." In short, the trial record indicates that "Sexual Disorder Order NOS" covers a number of diverse conditions, and it can manifest itself through inappropriate actions in some instances, and thoughts in others. I cannot find DiLorenzo's sexual assault to have been "reasonably foreseeable" on the basis of such a generalized understanding of his condition.
A similar analysis applies to the State's awareness that DiLorenzo had a "history of inappropriate sexual behavior in the community." Again, there is nothing in the record to indicate: (1) the time frame; (2) the nature of such behavior; and (3) whether such conduct involved any act of aggression vis-a-vis another individual. While claimant's counsel contended that there was no evidence in the record to show how long DiLorenzo had resided at the facility or lived with McCollins, it is claimant's burden to show that the State was on notice of the potential danger posed by AM's living situation. A statement that DiLorenzo at some unknown point in the past had engaged in some unspecified sexual misconduct does not carry that burden. That is particularly the case when viewed alongside the record as a whole, and in particular the absence of any evidence that DiLorenzo had engaged in any sexual wrongdoing at the facility itself, and the testimony that AM had raised no complaint about DiLorenzo to either his mother or his psychologist prior to the August 29 incident.
While defendant's counsel asserted that there was no evidence that DiLorenzo had engaged in such conduct for many years, there is no record evidence regarding the length of time he had been staying at BDC. The investigative report refers only to an annual review of DiLorenzo that had taken place on June 1, 2011. Shabazz indicated that AM had made no complaints about sexual assault since he first began their weekly sessions in January 2010, although it is not clear if DiLorenzo roomed with him during that entire period.
In sum, the record simply does not present the kind of evidence that has been held sufficient in other cases to place defendant on notice of the prospect that an individual within its care would cause harm (see Evans, 117 AD2d at 581, 582 [attack could have been foreseen, since assailant had previously been aggressive to other patients, several staff members were afraid of him, he had a history of "homicidal tendencies" and he had specifically threatened to kill the victim]; Goble v State of New York, 123 AD2d 664, 665 [2d Dept 1986] [assailant had "a long history of violent behavior," of which therapy aide was aware, before attack at issue]). And while AM was a vulnerable individual in need of protection, that alone does not demonstrate the State's negligence in assigning him DiLorenzo as a roommate. By contrast, in Dawn VV. v State of New York (47 AD3d 1048 [3d Dept 2008]), the Court noted in finding the State liable for two sexual assaults made upon a developmentally disabled woman with an IQ of 37, that the staff was aware that one of the attackers had "suffered from compulsion and aggression behaviors," such the facility required a staff member to stay within an arm's length of him at all times (id.). The evidence here does not demonstrate comparable knowledge of such danger (see Psoinas v State of New York, UID No. 2012-039-331 [Ct Cl, Ferreira, J., Aug. 16, 2012] [State's awareness of prior criminal record and arrest of assailant insufficient to put State on notice of likelihood of harm]).
Claimant argued during the trial that he need not show actual or constructive knowledge of the potential danger posed by DiLorenzo, since the dangerous condition was "created" by BDC when it placed DiLorenzo and AM together. That argument, however, is circular, and seeks in essence to change the legal standard by how it characterizes defendant's conduct. As the caselaw above makes clear BDC was only negligent in creating a hazardous condition to the extent it was aware of the reasonable probability that DiLorenzo would sexually assault (or engage in comparable sexual misconduct) vis-a-vis AM.
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Finally, I do not find the opinions given by either expert to be persuasive, as both were entirely conclusory. Dr. Goldsmith testified that the State was "negligent" and violated its standard of care in rooming AM and DiLorenzo together, but he cited no studies, experience or other expertise in drawing on this conclusion. He simply asserted it based on the evidence discussed above, which did not include any record regarding DiLorenzo's prior conduct at the facility (see id. [rejecting expert testimony that failure to pay sufficient attention to resident's criminal history led to assault, on ground it was "conclusory" and "speculative"]). I give no more weight to Hoffman's testimony, since he too had no knowledge of DiLorenzo's prior conduct, which he asserted should be the central determinant of the risk he posed.
In sum, I find the claimant has failed to meet his burden to show that the State should reasonably have anticipated that placing DiLorenzo and AM together would lead to the injuries for which claimant seeks damages in this action. I therefore dismiss the claim in its entirety.
All motions on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 10, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims