Opinion
# 2020-058-021 Claim No. 119186
02-27-2020
GEORGE W. SWAN v. STATE OF NEW YORK
George W. Swan, Pro Se Hon. Letitia James, Attorney General By: Thomas Trace, Esq., Associate Attorney
Synopsis
Claim sounding in premises liability and medical malpractice/negligence alleging Claimant suffered personal injuries at a correctional facility after he tripped over a duffle bag placed on the floor by a correction officer, causing him to spill a bowl of hot water on himself. Claimant also alleged that Defendant failed to properly treat his injuries following the incident and did not provide him a program restriction so that he may be permitted to wear alternative footwear to the State-issued boot. The Claim was dismissed after trial.
Case information
| UID: | 2020-058-021 |
| Claimant(s): | GEORGE W. SWAN |
| Claimant short name: | SWAN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119186 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | George W. Swan, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Thomas Trace, Esq., Associate Attorney |
| Third-party defendant's attorney: | |
| Signature date: | February 27, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant George W. Swan, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for personal injuries allegedly sustained while incarcerated at Marcy Correctional Facility. Specifically, Claimant alleges that, while he was carrying a bowl of hot water, he pushed open a steel door and purportedly tripped over a duffle bag placed on the floor of a hallway by a correction officer. Claimant alleges the steel door was defective in its design as he could not see any potential obstructions impeding his ability to safely pass through and walk down the hallway to his cell. Claimant also seeks damages for medical malpractice for the failure of DOCCS' medical staff to provide appropriate care to Claimant for his injuries. The trial of this Claim was conducted by videoconference on December 4, 2019, with Claimant appearing at Eastern Correctional Facility, Defendant appearing at Marcy Correctional Facility, and the Court presiding in Albany, New York. Claimant testified on his own behalf. Claimant offered no other witness and offered three exhibits into evidence which were received by stipulation. Defendant presented one witness and three exhibits which were admitted into evidence by stipulation. At the conclusion of Claimant's case and trial, Defendant moved to dismiss the Claim. After considering all the testimony and evidence received at trial, reviewing the applicable law, and arguments made by the parties, the Court grants Defendant's motion made at the conclusion of trial and dismisses the Claim.
The Court received in Chambers all the exhibits admitted at trial except for Claimant's Exhibit 1. After contacting the parties regarding the missing exhibit, Claimant's Exhibit 1 was received by the Court from Defendant on February 24, 2020 and from Claimant on February 27, 2020.
FACTS
Claimant testified that on September 22, 2010 he was carrying a 36-ounce bowl of hot water which he just heated in a hot pot and thereafter in a microwave oven in the recreation room. After Claimant opened a steel door from the recreation room to a hallway leading to his cell in D Block, he tripped over a duffle bag, spilling the hot water on his left foot causing second degree burns. Claimant testified he had to push open the steel door. Claimant asserted
Claimant testified at trial that the incident occurred on September 22, 2010, which differs from the Claim stating the incident occurred on September 23, 2010. The Court finds from the trial testimony and exhibits received during trial that the incident which is the subject of this Claim occurred on September 22, 2010.
"the design of the door is also an issue too, premise liability because, because of the door I couldn't see anything when I was coming through . . . you have no vision of anything that might be on the floor because of the door, the door blocks your view because the door pushes inward and pulls outward . . . I was pulling the door outward and I couldn't see as I was coming in, so I wouldn't be able to see the bag."
All quotations not otherwise attributed are taken from the electronic recording of the trial. During the portion of this testimony, Claimant referred to Exhibit 2, a diagram of D block where the incident occurred.
Claimant further testified he was wearing "shower shoes" which were described as rubber, sandal-type shoes with a strap that goes over the top of the foot and adhered by Velcro. Claimant wore socks with his shower shoes. It was after pushing the steel door open that Claimant claimed he tripped over a duffle bag. Claimant stated this duffle bag was owned by Correction Officer Yokey (Yokey) who was working that day and left it on the hallway floor in front of the door. On cross-examination, Claimant stated he did not remember having a cover on his bowl of hot water, but it was possible. There was no other testimony regarding a cover to the bowl. This Court finds Claimant's testimony that he may have had a cover on the bowl of hot water not credible.
Claimant's Exhibit 1 is a photograph of a shower shoe which is not the exact shoe worn by Claimant on September 22, 2010, but one like it.
Claimant was brought to the medical unit on the night of the incident and was seen by the medical unit on four other occasions. Claimant testified he requested on all dates of his medical evaluations that he be granted a program restriction not to wear boots which were required by DOCCS. Such request is not reflected in any medical record.
Defendant's Exhibit B is an inmate injury report indicating a medical examination conducted on September 22, 2010. Defendant's Exhibit C consists of three pages: two pages are Ambulatory Health Record Progress Notes dated September 22, 2010, September 23, 2010, September 27, 2010, September 29, 2010 and October 19, 2010; one page is entitled "Certification of Records Pursuant to CPLR § 4518."
Claimant did not call any other witnesses and conceded that he did not prepare a subpoena or request a subpoena from the Court for a medical expert. Following the conclusion of Claimant's case, Defendant moved for judgment as a matter of law dismissing the Claim. The Court reserved decision.
Defendant offered one witness, Yokey, who testified that he did not have a duffle bag on the block, but rather, had a lunch bag which was also described as a lunch container and/or lunch box. Yokey stated he placed this lunch bag on the steps to the officers' station and not on any floor or hallway. Yokey at all times denied he had a duffle bag in D Block or that he placed any bag on the hallway floor obstructing said hallway. Yokey credibly testified he came to the cellblock to assist with the night count when he saw Claimant slip. Yokey further testified that Claimant did not fall to the ground, but rather just slipped and spilled hot water he was carrying onto his left foot. Both Claimant and Yokey testified that Claimant's shower shoe and sock were wet from the hot water. Yokey further stated that Claimant did not immediately request assistance for his injuries and went to his cell. Once in his cell, he then requested medical assistance.
Claimant attempted, through cross-examination, to discredit Yokey's testimony regarding his possession of a duffle bag and placement of said duffle bag on the hallway floor, without success. Moreover, Claimant sought to impeach Yokey's trial testimony utilizing interrogatories indicating he had a duffle bag in the correctional facility. The Court was unpersuaded by Claimant's cross-examination of Yokey. To the contrary, such cross-examination convinced the Court that Yokey neither had a duffle bag in the facility nor placed a duffle bag or any other bag on the hallway floor causing Claimant to trip. Claimant's trial testimony regarding the description of this duffle bag varied from the description of said bag in the Claim, which was filed a short time after the incident. Claimant offered at trial an explanation that he had seen Yokey in the facility after the incident and observed the type and color of bags Yokey possessed, and must have erroneously described a different bag in his Claim. It appears to the Court that once Claimant was educated as to the description of Yokey's lunch bag through interrogatory responses filed by Defendant, Claimant adopted a different description of the bag in order to make his claim and implicate Yokey.
Claimant's Exhibit 3 is interrogatories executed by Yokey.
The incident occurred on September 22, 2010 and the Claim was executed and verified by Claimant on October 31, 2010.
Further, as to Claimant's allegation regarding premises liability and/or the purported defective design of the steel door, testimony adduced at trial revealed Claimant resided in this particular cellblock of the correctional facility for approximately 10 months. Claimant testified he was familiar with the steel door and the general area where he slipped, as he estimated that he had been in that area "thousands of times before" and the area where the incident occurred was "pretty close from my living area."
The Court determines from review of all the exhibits, as well as listening to the witnesses who testified at trial and observing their demeanor, that Claimant was carrying a large bowl of hot water without a cover; opened a steel door to gain entry to the living area; and tripped without falling, causing said hot water to spill on his left foot.
Following the presentation of its case, Defendant renewed its request for judgment as a matter of law dismissing the Claim. The Court reserved decision on this application. For the reasons that follow, the Court now grants Defendant's application to dismiss the Claim made at the conclusion of its case.
DISCUSSION
To establish a prima facie case of negligence in a slip and fall action, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Daniels v State of New York, UID No. 2019-040-042 [Ct Cl, McCarthy, J., June 17, 2019]). The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances specific to each case (see e.g. Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). "In determining whether [the] claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Burton v State of New York, 283 AD2d 875, 877 [3d Dept 2001]). Finally, a claimant has the duty to use reasonable care to observe his or her surroundings and to see what is there to be seen, and to avoid accidents (see Weigand v United Traction Co., 221 NY 39, 42 [1917]; Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]; Daniels v State of New York, UID No. 2019-040-042).
The Court has considered all the evidence, including reviewing the exhibits, listening to the witnesses testify, and observing their demeanor as they did so. The Court concludes that Claimant's injury is the direct result of his own actions of carrying an uncovered bowl of hot water. Claimant was proceeding from the recreation area to his living area, areas which he was fully familiar with and traversed "thousands of times before," when he opened a steel door and spilled hot water on his foot. This was a door he entered and exited many times before and tripped in an area known to Claimant as his cell was but a few feet away. Claimant did not prove, by a preponderance of the evidence, that there was any obstruction which impeded the hallway in D Block, that the steel door was dangerous or defective, or that any dangerous condition existed at the time of his tripping.
Additionally, the State has a duty to provide adequate medical care to inmates in its prisons (see Mullally v State of New York, 289AD2d 308, 308 [2d Dept 2001]; Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996]; Rivera v State of New York, UID No. 2018-015-150 [Ct Cl, Collins, J., Aug. 21, 2018]). This duty has been defined in terms of both negligence and malpractice (see Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]). "Whether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case'" (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]).
Where the claimant's allegations relate entirely to the professional skill and judgment of his treating professions, a medical malpractice cause of action is alleged (see Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed in part & denied in part 18 NY3d 870 [2012]). Claimants alleging medical malpractice are "required to prove, through a medical expert, that [medical professionals] breached the standard for good and acceptable care in the locality where the treatment occurred and that [such] breach was the proximate cause of [their] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]; see also Young v State of New York, UID No. 2019-038-110 [Ct Cl, DeBow, J., Aug. 19, 2019]).
Here, Claimant argues that, on several occasions, he requested a program restriction, to wit: he be permitted to wear some alternative footwear instead of the State-issued boot. He claims that the wearing of a boot exacerbated the injury on his foot and/or caused additional pain. Such a claim sounds in medical malpractice as it involves questions of medical judgment not within the knowledge of lay persons (see Lee v State of New York, UID No. 2006-018-542 [Ct Cl, Fitzpatrick, J., Dec. 5, 2006] [dismissing the claimant's medical malpractice claim premised upon the defendant's failure to prescribe medical boots and sneakers because Claimant failed to provide expert testimony establishing the footwear issued improperly fit and failed to meet the claimant's podiatric needs]). Claimant testified that, as a result of wearing his boot and the boot rubbing against his injury, he was in constant pain. Claimant was required to prove through an expert that State-issued boots were improper footwear and was the proximate cause of the exacerbation of his injuries. Additionally, Claimant was required to present expert proof to establish that Defendant deviated from the standard of care in allegedly failing to promptly treat his injury. In the absence of such expert testimony, Claimant has failed to establish prima facie his claim of medical malpractice or of medical negligence.
Accordingly Claim Number 119186 is dismissed. Any and all evidentiary rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 27, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims