Richard D. Greene, Claimant, v. The State of New York, Defendant. (2024)

Claimant Richard Greene, a formerly incarcerated individual, brings this negligence action seeking damages as a result of being ordered to participate in a prison work program after a prison physician had determined that claimant was medically excused from performing any type of work due to serious pre-existing injuries. Claimant was the only witness to testify at trial, and several of claimant's exhibits were received in evidence.¹ Defendant proffered no evidence. After considering the documentary evidence and claimant's testimony—which the Court found to be articulate, credible, and compelling—as well as the applicable law, the Court makes the following findings of fact and concludes that defendant is 100% liable and awards claimant the sum of $3,500.

Facts

Claimant entered into the custody of the New York State Department of Corrections and Community Supervision (DOCCS) in 2021. Before his incarceration, claimant was involved in a motorcycle accident in 2019 which left him with severe and permanent injuries. Claimant was dragged underneath an SUV and his left leg was crushed from the knee down. In place of the numerous bone fragments that had to be removed, a titanium rod was inserted, extending from claimant's knee to his ankle and held in place with over a dozen screws. This resulted in his left leg being two-and-a-half inches shorter than his right leg. Claimant's left foot was also partially amputated in the accident and a graft was placed near the ball of the foot at the amputation site. Claimant explained that the graft did not heal properly, however, and whenever he stood up for any period of time, a piece of bone would push up through the graft and cause bleeding at the site. Claimant's left arm was also seriously injured in the accident; titanium wire was placed from his elbow joint and extended partially down his arm. As a result of the accident, claimant testified that he experiences constant pain; cannot bend his left knee and has no range of motion in his left ankle; has a significantly reduced range of motion in his left arm; and cannot lift heavy objects.

Claimant arrived at Franklin Correctional Facility (Franklin) in May 2021.² Upon arrival, he was held overnight in the medical unit until he could be examined to determine whether he was fit enough to stay in general population. Claimant was using a wheelchair when he arrived at the facility due to his physical condition. A physician examined him the next day and determined that claimant could be housed in general population but issued him a wheelchair pass as well as a pass for a cane, and medically excused him from doing any kind of work at the facility due to his physical condition. The physician signed a "Medical Excuse" form documenting the no-work restriction, which had an issue date of May 27, 2021 and an expiration date of May 26, 2022 (Exh 1).³ On its face, the Medical Excuse form indicates that duplicate copies of the form were provided to the incarcerated individual (claimant received the yellow copy), as well as circulated to various facility departments, including, as relevant here, the Program Committee (see id.).

About two weeks after the Medical Excuse form restricting claimant from work was issued, claimant was called to appear before the Program Committee, an administrative body consisting of a corrections officer and two civilian staff members which is tasked with determining an incarcerated individual's prison work assignment. Claimant appeared at the committee hearing in his wheelchair. After it became clear that the committee did not have the copy of his Medical Excuse form containing the no-work restriction that it was supposed to have, he presented them his copy of the form containing the restriction. The committee disregarded it, however, and issued him a work assignment as a porter. He was initially assigned dorm porter duties and, then later, also laundry porter duties. Dorm porter duties involved cleaning, including sweeping, mopping, and buffing the floors. On one occasion, claimant was directed to shovel a few inches of snow outside the front door to the dorm, which he described as a painful and slippery situation; he took the wheelchair up to the door, then stood up with his cane and shoveled the snow with one arm while balancing on his cane with the other. As a laundry porter, claimant operated the facility laundry machines to wash clothes dropped off by other incarcerated individuals. As evidence that he was required to work—and did, in fact, perform such work—claimant's incarcerated individual account statements show that claimant received payroll deposits approximately once every two weeks from June 3, 2021 until December 31, 2021 (see Exh 2).

Many of claimant's porter duties required claimant to get out of his wheelchair and balance on his cane in order to be able to perform them, which caused him great physical pain. He testified that just getting in and out of the wheelchair itself was painful. And because claimant's work shifts were two and a half to three hours long, sometimes while working his leg would swell to the point where he could no longer see his ankle, and he got only limited relief from the medical unit. Most painfully, the pressure from the frequent standing caused bone to push up through the graft on claimant's left foot, crack or break the skin, and cause bleeding—which would then take a couple of months to heal. Claimant testified that he performed the work as best as he could even though it was painful because he had been threatened with disciplinary sanctions, including placement in the Special Housing Unit, if he refused to work.

During this time period, claimant complained to facility staff and filed grievances about being required to work notwithstanding his medically documented no-work restriction, but obtained no redress. It was only approximately seven months after his arrival at Franklin—when a corrections counselor sought to obtain clearance for claimant to do privileged work assignments outside the facility—that officials realized that claimant should not have been working at all. At that point, claimant was finally removed from all work assignments (see Exhs 3 and 11), with the Incarcerated Grievance Resolution Committee acknowledging that claimant had been "issued a restriction from all work dated 5/26/21 - 5/26/22" (Exh 10). Although the facility Superintendent ultimately concluded that the Program Committee never intentionally disregarded claimant's medical excuse and "took appropriate action upon learning that [claimant] had valid medical excuses which restricted his participation in work" (Exh 11), the Court does not credit the statements from prison officials contained in the grievance records that the Program Committee only learned of claimant's valid medical excuse from work programs in late December 2021; that there was no record of the Program Committee having a copy of claimant's Medical Excuse form at the time he was initially given a work assignment in June 2021; and that seek to blame claimant for officials' asserted lack of knowledge about his work restriction by not raising particular concerns about the work assignments at his quarterly reviews (see Exhs 11 and 12). All such statements are contradicted by claimant's credible testimony and defendant proffered no evidence at trial, testimonial or documentary, to rebut it.

At the conclusion of trial, defendant moved to dismiss the negligence claim (CPLR 4401). In support of the motion, defendant argued that the Program Committee's decision to give claimant a particular work assignment constituted a discretionary determination for which defendant is immune from liability. Additionally, as to proximate cause and damages, defendant contended that claimant failed to present competent medical evidence to establish that performing his job duties caused him injury or exacerbated his pre-existing injuries. Claimant opposed and the Court reserved decision.

Analysis

As an initial matter, the claim here asserts three causes of action: (1) negligence based upon the Program Committee work assignments; (2) negligent medical treatment; and (3) failure to provide claimant with reasonable accommodations for his condition. However, claimant abandoned the latter two causes of action because he offered no testimony at trial pertaining to them. Thus, those causes of action are dismissed in light of claimant's failure to prove them by a preponderance of the credible evidence.

Turning to the remaining cause of action, to prevail on a negligence claim, a claimant must establish (1) a duty owed by the defendant to the claimant, (2) a breach of that duty, and (3) that such breach proximately caused injury to the claimant (see Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]). As to individuals held in the State's correctional facilities, the State "owes a duty of care to safeguard" those over whom it has physical custody (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see also Killeen v State of New York, 66 NY2d 850, 851 [1985]). Such a duty includes the "duty to provide for the health and care of [incarcerated individuals]" (Levin v State of New York, 32 AD3d 501, 502 [2d Dept 2006]). And like other tort duties, the scope of the State's duty in this context requires the State to protect incarcerated individuals against the "risks of harm that are reasonably foreseeable" under the circumstances (Sanchez, 99 NY2d at 253; see also Levin, 32 AD3d at 502; A.J. v State of New York, 2024 NY Slip Op 04231, 2024 WL 3817401 at *2 [3d Dept 2024]). Thus, the State may be liable for a breach of this duty, under principles of ordinary negligence and absent expert testimony, when prison officials disregard a "professional medical direction" made following a previous exercise of medical judgment (Mossman v Albany Med. Ctr. Hosp. 34 AD2d 263, 264 [3d Dept 1970])—i.e., "when a doctor has told prison staff what sort of conditions are required for an [incarcerated person] in light of his medical condition, and the prison ignores the finding" (Fulghum v State of New York, 2012-049-110 [Ct Cl Sept. 4, 2012] [Weinstein, J.], citing Mossman, 24 AD3d at 264, Smith v State of New York, UID No. 2004-018-340 [Ct Cl Oct. 14, 2004] [Fitzpatrick, J.], and Reynolds v State of New York, UID No. 2007-039-064 [Ct Cl Feb. 21, 2008] [Ferreira, J.]).

Here, claimant established by a preponderance of the credible evidence that defendant was negligent. It is undisputed that a physician at Franklin issued claimant a valid Medical Excuse directive which totally restricted claimant from performing any work beginning on May 27, 2021, immediately after his arrival at the facility. The Program Committee knew or should have known about claimant's no-work restriction because the Medical Excuse order itself indicates that a duplicate copy was—or should have been—circulated to the committee. Further, claimant credibly testified that he even provided the committee with his own copy during his pre-assignment hearing. The Program Committee nevertheless compelled claimant to perform work as a dorm and laundry porter for a seven-month period, assigning duties which often required claimant to get up out of his wheelchair and stand for long periods of time during his approximately three-hour shifts, balance on one leg, and work with one arm while using his other arm to support himself with his cane. Thus, defendant placed claimant at a reasonably foreseeable risk of harm by "failing immediately to implement" the facility physician's no-work restriction (Levin, 32 AD3d at 503), and directing claimant to perform work which was likely to cause him further injury and pain given his extensive physical injuries and limitations (cf. DeMaille v State of New York, 166 AD3d 1405, 1407 [3d Dept 2018] [holding that the claimant failed to establish defendant was negligent based on its alleged failure to enforce a physician's "no-work" order where the claimant did not prove that any such order had in fact been issued]; Lee v State of New York, UID No. 2019-040-044 [Ct Cl, June 20, 2019] [McCarthy, J.] [holding the State liable for the claimant's fall from a top bunk where it failed to implement medical staff's order to assign the claimant to a bottom bunk]; West v State of New York, UID No. 2011-040-008 [Ct Cl, Feb. 7, 2011] [McCarthy, J.] [same]).⁴

As to the element of proximate cause, contrary to defendant's argument, the connection here between prison officials' actions and the resulting injury to claimant "is so direct and obvious that proximate causation is a matter 'within the experience and observation of an ordinary lay[person]' " (Fulghum, supra, quoting Lanpont v Savvas Cab Corp., 244 AD2d 208, 212 [1st Dept 1997]). To be sure, claimant arrived into DOCCS' custody with significant pre-existing injuries (and prior pain) due to his 2019 motorcycle accident: half of his left foot was amputated and the graft on his left foot at the amputation site had not properly healed; his left leg was two and a half inches shorter than his right leg; he was unable to bend his left knee and had no range of motion in his left ankle; and he had significantly reduced use of his left arm and could not lift heavy objects. But it is well within the ken and experience of the ordinary fact-finder to understand that forcing an individual in such a compromised physical condition to perform work—sometimes in his wheelchair and sometimes standing for hours while balancing on his cane with one arm and working with the other—such as cleaning, mopping, laundry, and even once having to shovel snow, would aggravate his serious injuries and cause increased pain. Under these circumstances, the Court is permitted to "draw a conclusion as to causal relationship without the necessity of expert medical testimony" (Mitchell v Coca-Cola Bottling Co., 11 AD2d 579, 579 [3d Dept 1960]; see Ingelston v Francis, 206 AD2d 745, 746 [3d Dept 1994] [noting that medical expert not required to establish that swelling of the plaintiff's thigh occurred as a result of car accident]; see also Shaw v Tague, 257 NY 193, 195-96 [1931] [recognizing that medical evidence would be unnecessary to establish that someone struck in the eye sustained a black eye, but that "remote and unusual effects of physical injuries, such as cancer or tuberculosis, would call for more than a layman's knowledge of cause and effect"]; Fulghum, supra [collecting cases where expert was or was not required to attest to causal connection]).

Defendant failed to submit any testimony or documentary evidence to rebut claimant's prima facie case. Moreover, the doctrine of governmental function immunity has no applicability here because the committee's failure to abide by claimant's physician-issued work restriction constituted a ministerial act (see Valdez v City of New York, 18 NY3d 69, 76-77 [2011]; see Ferreira v City of Binghamton, 38 NY3d 298, 311-312 [2022]; McLean v City of New York, 12 NY3d 194, 202 [2009]). Here, the complete and absolute medical restriction on claimant's participation in prison work programming included in an order signed by a physician at the facility removed any discretion the Program Committee had with respect to giving claimant any work assignment—it simply required the facility to follow such medical directive and ensure that he was assigned no work whatsoever (see Tango v Tulevech, 61 NY2d 34, 41 [1983] [discretionary acts "involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result"]; Kagan v State of New York, 221 AD2d 7, 10 [2d Dept 1996] [citing Tango]; see also Reynolds v State of New York, supra; Smith v State of New York, supra).⁵ Thus, the Court finds defendant is 100% liable to claimant for its negligence.

As to the issue of damages, "an award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]; see also McDougald v Garber, 73 NY2d 246, 257 [1989] [recognizing that "[t]ranslating" an individual's pain and suffering "into dollars and cents involves no mathematical formula"]; DeMarco v DeMarco, 154 AD3d 1226, 1228-1229 [3d Dept 2017]). The starting point in determining the appropriate damages award is examination of awards in "comparable cases" (Ciuffo v Mowery Constr., Inc., 107 AD3d 1195, 1197 [3d Dept 2013]; see Garcia v CPS 1 Realty, LP, 164 AD3d 656, 658 [2d Dept 2018]). Although compensation awarded in prior cases involving similar injuries is instrumental in "guid[ing] and enlighten[ing]" a court in its consideration of the proper damages in a particular case, such prior awards "are not binding" (Garcia, 164 AD3d at 658 [internal quotation marks omitted]). Factors to be considered in establishing an award for pain and suffering include "the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, NY, 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see Fabiano v State of New York, 170 AD3d 1301, 1303 [3d Dept 2019]).

Here, claimant's credible and unrebutted testimony established that claimant's left leg would swell significantly while he was performing his job duties and that just getting up out of his wheelchair was painful. In addition, one of the bones in claimant's partially amputated left foot would push up against the skin at the graft site due to pressure from standing—causing the skin to crack and bleed—which would then take several months to heal. All of this resulted in significantly increased physical pain for claimant. On the other hand, claimant did not submit any evidence, let alone any competent medical evidence, to establish that defendant's negligence caused a permanent worsening of his pre-existing condition or further loss of function of a body part.

With respect to comparable precedents—although this case is unique—courts have previously awarded damages for temporary pain and suffering experienced as a result of the State's failure to care for or accommodate an individual's medical condition, i.e., where the claimant's "suffering would have been lessened to a substantial degree" had the State not been negligent (Greene v State of New York, UID No. 2003-032-527 [Ct Cl, Dec. 30, 2003] [Hard, J.]). For example, in a case where the State compelled an incarcerated individual with a fractured finger to continue working at his job lifting heavy boxes at a prison commissary for five months, the court awarded $850 for pain and suffering (see Hakim v State of New York, UID No. 2000-016-092 [Ct Cl, Nov. 8, 2000] [Marin, J.]). Adjusted for inflation, the value of such award today would be approximately $1,500, or $300 per month.⁶ In another case, a court awarded $980 for pain and suffering where the State failed for 14 months to provide an incarcerated individual with medically prescribed boots for his chronic knee pain (see Rodriguez v State of New York, 2019-059-011 [Ct Cl, Sept. 11, 2019] [Liccione, J.]; see also Shepherd v State of New York, UID No. 2012-048-521 [Ct Cl, Dec. 20, 2012] [Bruening, J.] [$1,200 awarded for State's failure to provide an individual with a knee brace for six months]). Finally, a court awarded $100 (approximately $170 adjusted for inflation) where the State failed for two weeks to provide an individual with prescribed pain medication after he fractured his hand (see Greene v State of New York, UID No. 2003-032-527 [Ct Cl, Dec. 30, 2003] [Hard, J.]).

Given the seriousness of claimant's pre-existing condition and the presence of swelling and bleeding caused by defendant's negligence, in addition to the prolonged and significant pain experienced by claimant as a result of that negligence, an upward departure in value from these comparable cases is warranted. Thus, upon its finding that defendant is 100% liable to claimant for its negligence, the Court awards claimant $500 per month for each of the seven months that he was unlawfully placed on a work assignment, for a total award of $3,500, together with the appropriate statutory interest pursuant to CPLR 5001 and 5002. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). But to the extent claimant seeks to recover other litigation fees and costs, such relief is not available in the Court of Claims (see Court of Claims Act § 27).

Any motions upon which the Court had previously reserved decision are hereby denied.

Let judgment be entered accordingly.

Dated: October 2, 2024

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

FOOTNOTES

1.   Exhibits 1-4, 6, 10-12, and 19, were admitted into evidence upon defendant's consent and stipulation, with the exception of claimant's handwritten notations added to Exhibits 1, 3, and 19.

2.   Claimant initially testified that he arrived in May 2020 but corrected himself later in his direct testimony and clarified that the 2020 date referred to the date of his arrest.

3.   As the expiration date of the original Medical Excuse form approached, the work restriction was subsequently extended in another Medical Excuse form until April 2023 (see Exh 12).

4.   Although asserted in its answer, defendant correctly did not argue at trial that claimant should be found comparatively negligent. However, given the suggestion in the grievance records admitted into evidence that claimant was somehow to blame due to his continuing to perform the assigned work notwithstanding his health concerns, the Court notes that "considering the penalties which may be imposed for not following orders in a prison environment, it [is not] unreasonable for [incarcerated persons] to proceed as directed even [if] fully aware of the risk" to their health or person in doing so (Lowe v State of New York, 194 AD2d 898, 899 [3d Dept 1993]; see also Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006] [citing Lowe and "tak[ing] into consideration the special circumstances that confront an incarcerated [individual] in assessing whether [the individual] was comparatively negligent," including the risk of possible disciplinary action for failure to obey a work order]).

5.   On the other hand, the question of whether the physician's initial determination of the medical restriction was proper—a question not at issue here—would likely have involved an exercise of discretion.

6.    See United States Bureau of Labor Statistics, CPI Inflation Calculator, available at https:// www.bls.gov/data/inflation_calculator.htm (last accessed September 30, 2024).

Zainab A. Chaudhry, J.