Opinion
# 2012-031-071 Claim No. 117361 Motion No. M-81760
09-05-2012
LAURIE A. THURSTON, Individually and as Administratrix of the Estate of CHERYL L. THURSTON, Deceased v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment is denied. Claimant provided no competent medical evidence linking alleged breach of duty to Decedent's death. Case information
UID: 2012-031-071 Claimant(s): LAURIE A. THURSTON, Individually and as Administratrix of the Estate of CHERYL L. THURSTON, Deceased Claimant short name: THURSTON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : The caption has been amended sua sponte to reflect the only proper Defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 117361 Motion number(s): M-81760 Cross-motion number(s): Judge: RENÉE FORGENSI MINARIK O'BRIEN BOYD, P.C. Claimant's attorney: BY: CHRISTOPHER J. O'BRIEN, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: September 5, 2012 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on Claimant's motion for an order granting partial summary judgment in Claim No. 117361:
1) Notice of Motion, filed June 25, 2012;
2) Claimant's Memorandum of Law, dated June 20, 2012;
3) Claimant's Attorney Affirmation, dated June 20, 2012, with Exhibits Annexed;
4) Defendant's Attorney Affirmation, dated July 31, 2012;
5) Defendant's Memorandum of Law, dated July 31, 2012;
6) Filed Papers: Claim; Verified Answer; Verified Bill of Particulars.
Claimant Laurie A. Thurston ("Claimant") commenced Claim No. 117361 individually and as Administratrix of the Estate of Cheryl L. Thurston ("Decedent"), her late sister. In the underlying claim, Claimant alleges that Defendant and Defendant's employees and/or agents were negligent in leaving Decedent unattended in a bathtub on the evening of August 30, 2008, which caused Decedent to aspirate water, which resulted in severe injuries, conscious pain and suffering, and eventually her wrongful death. Decedent lived in a group home that was operated by Defendant. Claimant now makes this motion seeking an order granting partial summary judgment on the issue of liability. Defendant opposes the motion on the grounds that Claimant fails to produce any admissible evidence with respect to the proximate cause of Decedent's injuries and, thus, Claimant fails to make a prima facie showing of entitlement to judgment as a matter of law. For the reasons set forth below, Claimant's motion is denied.
The basic facts as alleged by Claimant appear to be undisputed. Decedent was an individual with developmental disabilities who resided at a group home operated by Defendant, which was located at 8 Hilltop Drive in Pittsford, New York ("Hilltop"). Each resident in the home was subject to varying degrees of supervision with regard to things like mobility, safety, and even personal finance; the level of supervision required for each resident would be set forth in an Individual Protective Oversight Plan ("IPOP"). The IPOP prepared for Decedent that was in effect in 2008 specified, among other things, that she required supervision of "1:1 in the bathtub/shower due to her seizure disorder" (O'Brien Affirmation, at Exhibit F). Katherine Townsend, a direct care assistant who was employed by Defendant at Hilltop, explained that this notation in the IPOP indicated to her that Decedent was to be one-to-one with a staff member, and in that staff member's field of vision at all times while she was bathing or showering.
On August 30, 2008, Decedent prepared for her evening bath under the supervision of Heidi Davison, a developmental aide then employed by Defendant. In her deposition testimony, Davison admitted that she left Decedent alone in the bathroom for several minutes while the water was running for the bath. Decedent was sitting on the toilet by herself and not actually in the bathtub at that time. While Davison was out of the bathroom in the kitchen, she heard what she believed was another employee and a resident either in or just outside the bathroom. Davison testified that, based on those noises, she believed that another resident, who had a history of assaulting Decedent, may have entered the bathroom and held her head underwater. She also heard what sounded like the water being turned off. When Davison returned from the kitchen, Decedent was already in the bathtub, sitting up, and her hair wet. Davison testified that this was abnormal for two reasons: one, Decedent would normally lay back, not sit up, while in the tub, and two, Decedent required assistance to get into the bathtub, so she would not have gotten in on her own.
Davison began grooming Decedent and washing her hair, and noted that Decedent was responsive to her and made some "verbal sounds," but "not the same kind of sounds that you might hear from some" (O'Brien Affirmation, at Exhibit E, page 39). Decedent was more quiet than usual, but this did not strike Davison as particularly unusual. Davison testified that she was going to ask Decedent about how she got into the bathtub and why her hair was wet, but then realized that she had no pajamas to dress Decedent in after the bath. She then left Decedent in the bathtub as she went to Decedent's bedroom to get clothing for her. Davison reached the doorway of Decedent's bedroom when she heard a yell, which she believed to be that of another employee, so she turned around and walked back to the front of the bathroom. She estimated that Decedent was out of her sight for maybe ten seconds. In looking at Decedent in the bathtub, Davison noticed that her head was somewhat turned, that she was no longer sitting up, and a small part of Decedent's mouth may have been under water. Davison began joking with Decedent, but Decedent did not respond. As she got closer to Decedent, it appeared that she was not breathing properly. Davison pulled Decedent from the bathtub and called for help. Decedent was transported to Strong Memorial Hospital, where she died the following day.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247). The proponent of a motion for summary judgment must make a showing of prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220).
It is well established that New York State owes a duty of reasonable care to patients and residents at its facilities, including preventing them from being harmed (see Harris v State of New York, 117 AD2d 298; Mulberg v State of New York, 35 AD2d 856, affd 29 NY2d 916). This duty of reasonable care is "measured by the capacity of the patient [or resident] to provide for his or her own safety" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252). Additionally, as is the case in any negligence action, a claimant must prove the existence of a duty to the claimant, a breach of that duty by Defendant which proximately caused a claimant's injuries, and the nature and extent of the injuries or damages sought to be compensated (see Basso v Miller, 40 NY2d 233). It is further well established that negligence cannot be inferred from the mere occurrence of an accident (see Mochen v State of New York, 57 AD2d 719).
Claimant contends that she has made a prima facie showing of negligence here by demonstrating the existence of a duty to Decedent, which was to keep a one-to-one watch on her at all times while she was bathing or showering due to her seizure disorder; a breach of that duty, when Davison left the bathroom on two occasions before and during Decendant's bath; and that the breach proximately caused Decedent's injuries, because injuries did in fact occur, resulting in Decedent's death. Claimant asserts that the cause of death is irrelevant and that all that matters here is that it was foreseeable that a breach of the duty to keep a one-to-one watch on Decedent could result in injury to her.
In response, Defendant appears to concede the existence of a duty to Decedent as well as a breach of that duty, as Defendant fails to oppose Claimant's motion on those grounds or offer any rebuttal to the facts as alleged by Claimant. In any event, the Court assumes that this is the case. Rather, Defendant opposes the motion on the ground that Claimant has failed to produce any admissible evidence that the breach in duty was the proximate cause of Decedent's injuries and, instead, offered only the assertions of Claimant's counsel in his supporting affirmation. The Court agrees with Defendant. There is nothing in the record before the Court on this motion that speaks to Decedent's cause of death - it is possible that it is related to her seizure disorder, which was the stated reason for the duty to keep a one-to-one watch on Decedent while bathing. It is also possible that another resident tried to drown her, as suggested by Davison. It is also possible that Decedent had a heart attack, or a stroke, or a brain hemorrhage. The record is notably bereft of any competent medical evidence of the cause of death. Moreover, the Court simply cannot agree with Claimant's assertion that the cause of death is irrelevant to the determination of proximate cause. On this record, there is no competent medical evidence that establishes Decedent's cause of death, and so the Court will not leap to the conclusion that the breach of Defendant's duty to supervise Decedent while bathing, again, due to her seizure disorder, proximately caused her death. The Court notes that it is well aware of the principle, as raised by Claimant, that a claimant must demonstrate that an injury was reasonably foreseeable as the result of the breach of duty, and not that the precise or exact manner in which the injury occurred was foreseeable. Here, however, where the Court is not even aware of a cause of death, it is impossible to make any determination with respect to whether Decedent's death was reasonably foreseeable as a result of her being left alone in the bathtub. This is a matter that the Court hopes will be revealed and explored thoroughly during a full trial of the issues in the underlying claim.
Accordingly, it is ORDERED that Motion No. M-81760 is hereby DENIED.
September 5, 2012
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims