Opinion
# 2011-018-246 Claim No. 117554
12-21-2011
PHIPPS v. STATE OF NEW YORK
Synopsis
The proof fails to establish any of the injuries Claimant alleges were proximately caused by asbestos exposure. No evidence was presented that the complaints made at sick call of heartburn and headaches were caused by the exposure. Claimant has wholly failed to meet his burden and the claim must be DISMISSED. Case information
UID: 2011-018-246 Claimant(s): KENYATTA PHIPPS Claimant short name: PHIPPS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117554 Motion number(s): Cross-motion number(s): Judge: DIANE L. FITZPATRICK KENYATTA PHIPPS Claimant's attorney: PRO SE ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joel L. Marmelstein, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: December 21, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant brings this action against the State alleging he was exposed to asbestos while he was an inmate at Mid-State Correctional Facility (MSCF). The State's motion to bifurcate this claim was granted. This Decision relates to liability only.
In June 2009, Claimant was incarcerated at MSCF and living in Dorm 1-D. From June 15, through June 25, 2009, the company of Postler & Jackles was working on the dormitory in which Claimant was housed. Claimant testified that there was tape hung advising that the company was removing asbestos. The workers wore helmets, masks, and white suits. None of the inmates were given any protection from the dust and debris. The inmates were directed to sit in the recreation room while the work was being performed. The inmates had to return to their rooms to be counted. Claimant described a huge hose that was used to remove asbestos from the basement of the building and said floor tiles in his room were removed. He said he had stomach pain, headaches, chest pains, and sleeplessness as a result of breathing the dusty air and he is concerned for his health. As an inmate, he had no control or input into the situation and he was unable to otherwise protect his health.
Claimant's ambulatory health records from July into early October 2009 were admitted into evidence.The records show Claimant complained of "heartburn" on July 20, 2009, and cluster headaches on September 24, 2009. No other entries reflect the complaints Claimant described.
Defendant's Exhibit A.
The majority of the records reflect Claimant's complaints related to his wrist.
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At the close of the case, Defendant moved to dismiss the claim for the failure of Claimant to prove that he was exposed to asbestos or that there was any negligence on the part of the State. Also, the State argued that there was no proof that the health complaints Claimant had were proximately caused by the exposure. That motion must now be GRANTED.
The State has the duty to use reasonable care to protect inmates in its correctional facilities from the foreseeable risk of harm (Flaherty v State of New York, 296 NY 342 [1947]; Reid v State of New York, 61 AD3d 1063 [3d Dept 2009]). The Court, however, cannot infer the State was negligent from the occurrence of an incident and injuries (Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]). It is Claimant's burden to establish that the State had notice of a dangerous or defective condition and failed to timely correct it before it proximately caused Claimant's injuries (Solomon v City of New York, 66 NY2d 1026 [1985]).
Here it seems, based only on Claimant's testimony, that the State contracted with a company, Postler & Jackles, for asbestos abatement. The evidence failed to show that the State was aware or should have been aware that the methods utilized by that company to remove the asbestos placed the inmates at risk of asbestos exposure, or that the State did anything directly or failed to take action which placed the inmates at such risk. Other than Claimant's speculation, the proof was insufficient to show Claimant was exposed to asbestos.
Although, typically, where a party retains an independent contractor, as opposed to an employee to do certain work, that party will not be held liable for the independent contractor's negligent acts (Brothers v New York State Elec. & Gas Corp., 11 NY3d 251, 257 [2008]), however, there are exceptions to this general rule. The proof did not establish that any of the exceptions apply here (Brothers, 11 NY3d at 258). Yet, even if the Court accepts that the State could be held liable for the negligent acts of Postler & Jackles, there was simply no proof showing the company was negligent.
Finally, assuming arguendo that Claimant was negligently exposed to asbestos in June 2009, the proof also fails to establish any of the injuries Claimant alleges were proximately caused by such exposure. There was no evidence presented that the complaints made at sick call of heartburn and headaches were caused by the exposure. Moreover, it appears that any cluster headaches Claimant suffered were limited since there were no further complaints or reference to them in the health records before or after September 24, 2009. The Court cannot rely on Claimant's speculation to support a finding of proximate cause.
Claimant has wholly failed to meet his burden and the claim must be DISMISSED. Any motions not heretofore ruled upon are now DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 21, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims