Opinion
# 2015-015-595 Claim No. 119422
03-02-2015
JAMES PINE v. THE STATE OF NEW YORK
James R. Pine, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Pro se inmate was awarded damages for personal injuries sustained in a slip and fall.
Case information
| UID: | 2015-015-595 |
| Claimant(s): | JAMES PINE |
| Claimant short name: | PINE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119422 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | James R. Pine, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, seeks damages for personal injuries allegedly sustained in a slip-and-fall accident in the furniture shop of Great Meadow Correctional Facility on November 2, 2009. Following a bifurcated trial on the issue of liability, the Court found both claimant and defendant 50% responsible for the accident. A trial on the issue of damages was held on December 9, 2014.
Claimant, the only witness at trial, testified that at the time of the accident he heard a pop and felt severe pain in his right hip similar to an electric shock. He felt nauseous, weak and shaky and was unable to stand or sit. He was placed on a stretcher, taken to the facility hospital and then transported by ambulance to Glens Falls Hospital where, according to the claimant, an X ray examination revealed two hip fractures. Claimant was given pain medication and was returned to the hospital at Great Meadow Correctional Facility where he was admitted for the next five or six days. During this time, claimant was prescribed pain medication and a wheel chair. On the third day of his admission to the facility hospital, claimant was able to ambulate to the bathroom with crutches. Following his discharge from the facility hospital, claimant was housed on the "flats" (the first floor of the prison) so that he would not be required to use stairs. In addition, claimant testified that he was confined to his cell on medical keeplock for approximately one week. On March 12, 2010, the "flats" order was rescinded so that the claimant could move upstairs to the honor block. Claimant testified that he used crutches for approximately one month following the accident and was prescribed pain medication for approximately one year.
Claimant testified that shortly after being transferred to Green Haven Correctional Facility in May 2011 he began to experience pain in his right calf and thigh as well as numbness in his foot. Claimant underwent electrodiagnostic tests, which he states were positive. According to the claimant, he still has pain in his hip and will undergo further tests to rule out an infection. Claimant testified that, as the result of the injuries he sustained in this accident, he is unable to run, lift weights or bend in order to pick up anything heavy.
On cross-examination, claimant admitted that he previously suffered a fracture of his right hip in 1986, which was treated with internal fixation. In 1987, he underwent a total right hip replacement and had surgical revisions in 1995 and 2005. Claimant testified that he may need further surgery for which authorization remains outstanding. While in prison, claimant has worked as a welder, furniture assembler and, most recently, as a porter. Claimant testified that he has been unable to continue his work as a porter due to the recent symptoms of neuropathy in his right lower extremities. Claimant also states that he was diagnosed with a degenerative back condition for which he has declined surgery, and admittedly is unable to produce any medical proof to correlate his neuropathy with the injuries he sustained in the subject accident. At present, claimant awaits a neurology consultation to determine the source of the tingling in his right lower extremities.
Although claimant failed to present expert medical testimony, the medical records in evidence establish that he sustained a "nondisplaced fracture through the medial aspect of the acetabulum near the junction with the ischium" and a "very questionable" nondisplaced fracture through the more superior aspect of the acetabulum (Exhibit 1; see also Exhibit 2). On December 18, 2009, more than one month after the accident, claimant presented to Capital Region Orthopaedics for evaluation without crutches or a cane and was advised to resume use of the cane (Exhibit 3). The electrodiagnostic consultation report of Dr. Steven C. Weinstein dated May 30, 2012 (Exhibit 5) indicates evidence of right lower extremity neuropathy but fails to relate these findings to claimant's most recent hip fracture, instead noting that claimant should "[c]onsider [n]eurology consultation to determine the source of the neuropathy" (Exhibit 5).
Claimant established by a preponderance of the credible evidence that he sustained a hip fracture as the result of the accident, which caused him pain and suffering for several months after the accident and resulted in a curtailment of his usual activities during this period of time. Claimant did not establish, however, that this injury or its sequelae are permanent or that he will require future surgery as a result. While there is proof that claimant suffers neurological symptoms, there is no medical proof that these symptoms are causally related to the injuries he sustained in the subject accident. Absent expert medical proof on this issue, the Court is unable to conclude that claimant's neurological deficits and symptoms are related to the injuries he sustained in this accident or that any such symptoms are permanent (see Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). Nor did claimant establish the need for future treatment relating to the injuries he sustained.
" 'Because personal injury awards, especially those for pain and suffering, are not subject to precise quantification ... [courts] look to comparable cases to determine at what point an award "deviates materially" from what is considered reasonable compensation' " (Kahl v MHZ Operating Corp., 270 AD2d 623, 624 [3d Dept 2000], quoting Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782, lv dismissed 92 NY2d 942 [citations omitted]). The Court notes that awards to plaintiffs with similar or worse injuries have been either affirmed or judicially adjusted to between $51,000 and $125,000 (Perone v City of New York, 86 AD3d 600 [2d Dept 2011] [award for past pain and suffering in the amount of $65,000 was affirmed for a plaintiff who sustained a nondisplaced fracture of the greater trochanter, the non-weight bearing part of the hip joint, and a minimally displaced left clavicle fracture]; Shaperonovitch v City of New York, 49 AD3d 709 [2008], revd on other grounds 11 NY3d 581 [2008] [award of $51,000 for past pain and suffering and $51,000 for future pain and suffering was affirmed for plaintiff who suffered fractures of the acetabulum bone in the hip]; Perkins v McAlonen, 289 AD2d 914 [3d Dept 2001] [award of $35,000 for past pain and suffering and no award of damages for future pain and suffering was reversed on appeal where plaintiff suffered multiple hip fractures and a comminuted fracture of the left femur]; Dooknah v Thompson, 276 AD2d 664 [2d Dept 2000] [award of $30,000 for past pain and suffering was increased to $75,000 and award of $20,000 for future pain and suffering was increased to $125,000 where plaintiff suffered a nondisplaced fracture of the right acetabulum and two fractures of the pubic ramus]; Spors v Stoll, 256 AD2d 1083 [4th Dept 1998], lv dismissed 93 NY2d 998 [1999] [award of $35,000 for past pain and suffering and $15,000 for future pain and suffering was increased to $100,000 for past pain and suffering and $150,000 for future pain and suffering for plaintiff who suffered a fractured dislocation of her hip necessitating surgery, traction and an extended hospitalization]). Consideration of claimant's testimony and the medical proof adduced at trial leads this Court to award claimant the sum of $50,000 for past pain and suffering. No award is made for future pain and suffering as claimant failed to establish through the submission of expert medical proof that the symptoms he continues to suffer are related to the subject accident.
The total award of $50,000 is reduced by the previously determined 50% level of culpability attributed to claimant by this Court's liability decision of June 30, 2014, resulting in a finding of $25,000 in damages.
The Clerk of the Court is directed to enter judgment in favor of the claimant in the amount of $25,000.00 together with interest at the statutory rate from June 30, 2014.
All motions not previously decided are hereby denied.
Any filing fee paid by claimant shall be recovered, pursuant to section 11-a (2) of the Court of Claims Act.
All trial motions not heretofore decided are now deemed denied.
Let judgment be entered accordingly.
March 2, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims