Opinion
# 2015-044-508 Claim No. 122516 Motion No. M-85949
03-10-2015
KEITH POOLER v. THE STATE OF NEW YORK
KEITH POOLER, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
Inmate claimant's motion for summary judgment in claim for injuries incurred during a prison basketball game and medical malpractice thereafter denied for failure to meet burden of proof.
Case information
UID: | 2015-044-508 |
Claimant(s): | KEITH POOLER |
Claimant short name: | POOLER |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122516 |
Motion number(s): | M-85949 |
Cross-motion number(s): | |
Judge: | CATHERINE C. SCHAEWE |
Claimant's attorney: | KEITH POOLER, pro se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 10, 2015 |
City: | Binghamton |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly suffered during a basketball game played while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility. Claimant additionally alleges that he did not receive proper medical treatment for his injuries. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant thereafter filed and served an amended answer also containing several affirmative defenses. Claimant now moves for summary judgment. Defendant opposes the motion.
Claimant's previous motion to strike the answer and for judgment pursuant to CPLR 3126 was denied (Pooler v State of New York, Ct Cl, July 22, 2014, Schaewe, J., Claim No. 122516, Motion No. M-84816).
Claimant argues that the manner in which he was injured by an opposing player was foreseeable and because defendant had exclusive control of that player, the doctrine of res ipsa loquitur applies to provide an inference of negligence. Claimant contends that defendant's medical personnel were also negligent in failing to treat him at the scene. He also asserts defendant's negligence was a substantial cause of his injuries.
Conversely, defendant contends that claimant has not established either that the State was negligent or that such negligence caused claimant's injuries. Defendant further asserts that to the extent that claimant is alleging medical negligence or malpractice, he has not provided any evidence that the State's response to claimant's injuries was inadequate or inappropriate.
Defendant also argues that because claimant failed to serve it with the motion papers, the motion should be denied. A party's failure to give the required notice of motion deprives the Court of jurisdiction to entertain the motion (Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928, 929 [3d Dept 1983]; see also, Welch v State of New York, 261 AD2d 537, 538 [2d Dept 1999]). However, defendant admittedly has obtained a copy of the motion papers and submitted opposition papers, and the Court will accordingly address the merits of the motion.
Claimant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
With respect to the cause of action in negligence, the law is well-settled that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). A participant does not, however, assume the risks "which are 'unreasonably increased or concealed' " (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989], quoting McGee v Board of Educ. of City of N.Y., 16 AD2d 99, 102 [1st Dept 1962], appeal dismissed 12 NY2d 1100 [1963], lv denied 13 NY2d 596 [1963]). A defendant may nonetheless be liable under the theory of "inherent compulsion" where an injured claimant participated in the sport or activity notwithstanding obvious and evident risks, at the direction of a superior, and under an economic compulsion or other circumstance that "impels" compliance with the directive (Benitez, 73 NY2d at 658; see also Verduce v Board of Higher Educ. in City of N.Y., 9 AD2d 214, 219 [1st Dept 1959] [dissenting opn], revd on dissenting opn 8 NY2d 928 [1960]).
In his claim, claimant alleges that on January 23, 2013, he suffered an avulsion fracture which caused him to endure pain and emotional distress. In a document entitled "notice of intention" and attached to the claim, claimant indicates that a member of the opposing basketball team ran into him and caused the injuries. In his affidavit in support of this motion, claimant reiterates that he was playing basketball in the gym when an opposing player collided with him and caused an avulsion fracture to his left knee. He also states that the manner in which he was injured does not normally happen in the absence of negligence and because the opposing player was in defendant's exclusive control, there is an inference of negligence attributable to defendant.
The evidence before the Court establishes that claimant was injured while he was playing basketball when a member of the opposing team essentially ran into him. Contrary to claimant's contention, the risk of physical contact with another player while playing basketball is an inherent risk of the game and may indeed occur without any negligence (see e.g. Morgan, 90 NY2d at 484; see also Montalvo v State of New York, UID No. 2001-018-114 [Ct Cl, Fitzpatrick, J., Dec. 14, 2001]). Moreover, claimant has not submitted any evidence that he was directed to participate in the game by an official or employee of defendant and thus has not established that the doctrine of inherent compulsion applies (Benitez, 73 NY2d at 658). Claimant has failed to meet his burden of establishing his right to judgment as a matter of law. Accordingly, summary judgment on the negligence cause of action is denied.
Claimant's reliance on the doctrine of res ipsa loquitur which is an evidentiary doctrine that may permit the finder of fact to "infer negligence merely from the happening of an event and the defendant's relation to it" (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]) is misplaced. In order to invoke the doctrine, claimant must establish "that (1) the event does not usually occur in the absence of negligence, (2) the instrumentality that caused the event was within the exclusive control of the defendant, and (3) the [claimant] did not contribute to the cause of the accident" (Smith v Moore, 227 AD2d 854, 855 [3d Dept 1996]). In this instance, there is no evidence that the manner in which claimant was injured (because of physical contact during a basketball game) does not usually happen in the absence of negligence. Further and notwithstanding that the opposing player was also in defendant's custody, claimant has not shown that his opponent's conduct was controlled by defendant rather than occurring of his own volition.
With respect to claimant's cause of action for medical negligence and/or malpractice, there is a subtle distinction between these two causes of action. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]). When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id.; see also Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler, 65 NY2d at 73). However, "[u]nder either theory, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see also Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
Claimant alleges that even though a correction officer called the medical staff, he (claimant) remained on the floor for approximately 15 minutes before the other players moved him to a bench. He further states that the nurse on duty failed to personally assess his injuries in the gym, but instead sent someone else to transport him to the infirmary in a wheelchair. Claimant asserts that the nurse's conduct constitutes deliberate indifference to a serious medical condition.
Claimant has not provided any expert medical evidence to establish the appropriate standard of care and/or that the nurse's conduct deviated from that standard. Moreover, even if the nurse's conduct was negligent, there is no medical evidence that her negligent conduct caused or exacerbated claimant's injuries. Without such expert testimony, claimant has failed to meet his burden of establishing entitlement to judgment as a matter of law on both the medical malpractice and medical negligence causes of action.
To the extent that claimant may be alleging a separate cause of action for deliberate indifference to a serious medical condition, he must show that the nurse acted with "deliberate indifference to [his] serious medical needs" (Estelle v Gamble, 429 US 97, 103 [1976]). In support of this motion, claimant submitted a copy of an inmate injury report which indicates that the nurse examined claimant's knee and noted that it was swollen, tender, and that the kneecap was slightly displaced. The report provides that the nurse gave claimant 600 mg of Motrin (a pain reliever), elevated and applied ice to the leg, and arranged for claimant to be transported to an outside facility for further evaluation and treatment. Based upon this evidence, the Court cannot find as a matter of law that the nurse who provided treatment for claimant's injuries displayed deliberate indifference to his medical condition. Summary judgment on this cause of action is also denied.
In conclusion, claimant has failed to set forth admissible evidence that his injury resulted from any negligence on the part of defendant. Claimant has also not submitted expert testimony concerning the standard of care applicable to his treatment, that defendant's nurse breached that standard or that any alleged negligence caused his injuries. Moreover, claimant has failed to provide evidence that the nurse was deliberately indifferent to his medical condition. Claimant has failed to meet his burden of establishing entitlement to judgment as a matter of law on his causes of action for negligence, medical malpractice and/or medical negligence and deliberate indifference to a serious medical condition. Accordingly, claimant's Motion No. M-85949 for summary judgment is denied in its entirety, without regard to defendant's opposition papers (see Winegard, 64 NY2d at 853).
March 10, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on October 31, 2014; Combined "Affidavit" of Keith Pooler, and Memorandum of Law dated April 26, 2014, and attachments.
2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated January 5, 2015, and attached exhibits.
Filed papers: Claim filed on March 15, 2013; Verified Answer filed on May 9, 2013; Amended Verified Answer filed on May 23, 2013.