Opinion
# 2020-029-034 Claim No. 128102
05-06-2020
NATHANIEL RICHARDSON v. THE STATE OF NEW YORK
SCHONBERG LAW OFFICES By: Eric D. Parker, Esq. LETITIA JAMES, ATTORNEY GENERAL By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
The claim sought damages for injuries sustained by an inmate at Fishkill Correctional Facility when a window fell on his arm. After a trial on liability only, the court found the State 100% liable for negligence.
Case information
| UID: | 2020-029-034 |
| Claimant(s): | NATHANIEL RICHARDSON |
| Claimant short name: | RICHARDSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128102 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | SCHONBERG LAW OFFICES By: Eric D. Parker, Esq. |
| Defendant's attorney: | LETITIA JAMES, ATTORNEY GENERAL By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 6, 2020 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim for negligence seeking compensation for personal injuries he sustained when a window in his cell at Fishkill Correctional Facility ("Fishkill") fell and broke his arm on September 2, 2015. A trial on liability only was held on March 10 - March 12, 2020.
Claimant presented his own testimony, the testimony of inmate Alexander Manigat, Correction Officer ("C.O.") Timothy Lynk and Sgt. Ralph Garnot. The court admitted four claimant's exhibits - photographs, an accident/injury report, a maintenance work order request, and an inmate grievance response form. The court also admitted as a court exhibit a transcript of deposition testimony by Maintenance Supervisor Kenneth Malkemus. Defendant presented no witnesses and the court admitted eight State exhibits - To/From Memoranda, photographs, injury reports, inmate grievance, unusual incident report, and an affidavit of Maintenance Supervisor Michael Bo.
Claimant testified that at approximately 9:05 p.m. on September 2, 2015, he was sitting on a chair in a four-man dorm-style room on the A-West Unit of the 21A building at Fishkill socializing with other inmates. He rested his right arm on the windowsill, below the central window. At some point, the window fell resulting in a distal ulnar fracture of claimant's right forearm. Claimant testified that he had not been aware previously that the window was broken.
The court did not have a transcript of the trial to review. The summary of the evidence presented at trial is based on the audio recording.
Alexander Manigat was housed in the room that claimant was visiting at the time of the incident. He was the only witness to the incident besides claimant. None of the correction officers who were called saw what happened. His description of the incident contained the same details as claimant's description. He testified that the window dropped on claimant's arm and that neither claimant nor anyone else in the room had touched the window before it dropped. After Manigat lifted the window off claimant's arm, a screw was on the ground. Earlier on the day of the incident, he had asked a member of the maintenance staff present in the housing unit to fix the window. The worker placed a screw in the window temporarily to keep it open and warned the inmates to stay away from the window. Manigat acknowledged that he forgot to tell Richardson. There are no written records corroborating this testimony.
Right after the window fell, Manigat went to get a correction officer, who responded in about fifteen seconds and called for assistance. Claimant was in severe pain. C.O. Lynk testified that he responded after Manigat told him that a window fell on claimant's arm. C.O. Lynk identified his September 2, 2015 memo to Lt. Sawyer. The memo (Exh. D) states:
"[O]n the above date at approximately 9:05 pm inmate Manigat 12A2956 approached me and stated that the window in his room fell on inmate Richardson 13A5468 arm. I then approached inmate Richardson and asked if he needed medical attention. He stated yes [. . .]."
Manigat testified that the correction officers knew the inmates were propping the window open, and in fact one of the officers had given him a stick for that purpose. He had used sticks and shampoo bottles to keep the window open. Sgt. Garnot and C.O. Lynk testified that the windows in the 21A Building at Fishkill are old. Sgt. Garnot testified that he has been at Fishkill for about 30 years and the windows have never been replaced. He has heard complaints about the windows, some of which do not stay open. He has seen inmates propping the windows open, which is against policy. He would tell a C.O. or inmate to remove the item, and tell the C.O. to issue a work order. He did not know how long it takes to get a work order executed. Kenneth Malkemus, the Maintenance Supervisor for Fishkill when the incident occurred, testified at his deposition that if a window will not stay open, "it's definitely defective" (Depo pg. 55, lines 5-8).
On cross-examination Manigat testified that he had lived in Room 11 for about a year. He and other inmates made "multiple" complaints about the windows, probably about 20 times. During his deposition, he indicated the number of complaints he made was three, one by slip and two orally.
The Accident/Injury Investigation Report (Exh. 2) contains the statement, "While attempting to close window frame suddenly fell striking inmate in his forearm area." Sgt. Garnot testified that he does not know why he reported that claimant was closing the window. He identified his To/From Memo to Lt. Sawyer (Exh. C) in which he also referred to claimant attempting to close the window. He did not recall his specific conversation with C.O. Lynk. C.O. Lynk denied telling anyone that claimant was attempting to close the window.
The Inmate Injury Report (Exh. F) was prepared after claimant was examined on the night of the incident. That report notes the cause of the injury: "Sitting by window right arm on sill window came down on right forearm." There is no reference to claimant attempting to close the window.
Claimant subsequently filed a grievance seeking to have the window fixed, which was upheld in full (Exhs. 3 and A). A maintenance work order request was admitted into evidence (Exh. 4). In the Second Department, "evidence of subsequent repairs is not discoverable or admissible in a negligence case" (Klatz v Armor El. Co., 93 AD2d 633, 637 [2d Dept 1983]; see Graham v Kone, Inc., 130 AD3d 779, 779-780 [2d Dept 2015]; Del Vecchio v Danielle Assoc., LLC, 94 AD3d 941, 942 [2d Dept 2012] ).
"An exception to this rule applies if a defendant's maintenance of, or control over, the subject instrumentality is at issue" (Graham at 780; see Del Vecchioat 942). This exception does not apply here.
Counsel for the parties submitted written post-trial closing statements.
"It is well-established that the State has a duty to maintain its premises 'in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (La Puma v State of New York, UID No. 2018-038-117 [Ct Cl, DeBow, J., Dec. 12, 2018], quoting Basso v Miller, 40 NY2d 233, 241 [1976] [internal citation omitted]). To establish liability on his claim, claimant must prove by a preponderance of the credible evidence that a dangerous condition existed, that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition, and that the dangerous condition was a proximate cause of claimant's injuries (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
After listening to and observing the witnesses, reviewing the exhibits and the post-trial closing statements, the court finds that claimant has proven by a preponderance of the credible evidence that: the defective window constituted a dangerous condition because it did not stay up on its own; the State had actual notice of that condition: the maintenance worker created an even more hazardous condition by inserting an unsupported screw to hold the window up temporarily; and the State failed to remedy the condition, which proximately caused claimant's injuries.
Claimant and Manigat, the only other eyewitness besides claimant, both testified consistently as to every detail of the incident. There was no testimony or evidence contradicting their description of what happened or that the window did not stay up on its own, the inmates propped the window up with sticks and other objects, and the correction officers were aware the window was broken and of the inmates' use of objects to hold it up. The court also has no reason not to accept Manigat's testimony that the morning of the incident, a maintenance worker inserted an unsecured screw to hold up the window temporarily and warned the inmates to stay away from the window. There are no documents corroborating this testimony, but other testimony is consistent. Claimant testified that he did not observe any objects holding up the window, and Manigat testified that after the window fell there was a screw on the ground.
The only semi-contested fact by the State was the allegation that claimant was attempting to close the window when it fell on him. Both inmate witnesses deny this and in his initial report, C.O. Lynk makes no mention of any action and absolutely denies touching the window at all. None of the C.O. witnesses could explain where the allegation that claimant was operating the window when it fell came from and the only two witnesses to see the event both strongly denied it. In any event, even if he was attempting to close the window when it fell, that would not exonerate the State.
Claimant has proven his claim of negligence by a preponderance of the credible evidence, and defendant is 100% liable to claimant for injuries sustained. A trial on damages will be scheduled as soon as practicable.
The court's calendar is subject to the Governor's timetable for reopening the courts and other businesses after the emergency closure due to the Covid-19 pandemic. --------
Any motions not previously ruled upon are hereby denied.
The Chief Clerk of the Court is directed to enter an interlocutory judgment in accordance with this decision.
Consistent with the new policy of the Unified Court System, the parties are encouraged to consider alternative dispute resolution for the ascertainment of damages.
May 6, 2020
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims