Download WHITE v. THE STATE OF NEW YORK, #2004-016

WHITE v. THE STATE OF NEW YORK, #2004-016-050, Claim No. 99085
Synopsis
Case Information
UID:
2004-016-050
Claimant(s):
MICHAEL WHITE
Claimant short name:
WHITE
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
99085
Motion number(s):
Cross-motion number(s):
Judge:
Alan C. Marin
Claimant’s attorney:
Kenneth S. Feraru, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney General
By: Paul F. Cagino, Esq.
Third-party defendant’s attorney:
Signature date:
August 23, 2004
City:
New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
This is the claim of Michael White, who alleges that on December 9, 1997, while resting on his bed at
Clinton Correctional Facility, a fluorescent light bulb fell from his cell’s light fixture, crashed on the sink, and
caused a piece of glass to enter his left eye. Claimant testified on his own behalf and defendant called Correction
Officer Robert Whitcomb.
White testified that on December 8, 1997, he was sent to a new cell at Clinton Correctional Facility; he was
moved because of a dispute with another inmate that required them to be separated. He recalled that the correction
officer who took him to the new cell did not enter the cell, which he characterized as being at variance with
“statewide procedure.” According to claimant, in the past, a “cell frisk” had always been performed by a correction
officer when he went into a new cell. White described such procedure as “when the officer goes into the cell and . .
. [makes] sure that everything is operable and safe . . . [that] there’s nothing in there that can cause you harm [and
that] there’s no contraband left behind from the previous inmate who occupied the cell.” Claimant added that after
the cell frisk was completed, he would receive a “cell frisk slip” to sign; such form was not given to him on
December 8, 1997.
White recalled that after entering the cell, he “went right to bed.” He described what happened the next
morning as follows:
I got up. Breakfast was served. I [ate] breakfast. I laid back down on my bed. I grabbed a book, I
turned a few pages, laid the book down, and I was awakened by the sounds of drilling and - - sound of
maintenance work . . . in the back of the cells there’s plumbing pipes . . . like banging and drills.
Claimant resumed reading, and then he heard:
a loud popping sound . . . my impulse was to turn, and I just felt like a stinging sensation and everything
went black. I grabbed my face and I tried to open my eyes and I felt like a sharp pain . . . and there was
blood all in my hands and . . . coming down on my shirt.
White explained that what had happened was that the light bulb had fallen from the light fixture into the
sink, which was next to his bed, about one-and-a-half to two feet away. He maintained that the light fixture
contained “just a naked bulb” with no cover on it. He also testified that from the time he entered the cell until the
time of the accident, he had not touched the light fixture. Claimant recalled two or three other cells where the light
fixtures had no covers, although he was not aware of any other incidents where light bulbs had fallen out. He
explained that he had not complained about the lack of a cover because “there’s some things you just don’t . . . do . .
. I was scared . . . You just don’t complain about certain things in prison.”
White said that after the accident, he was “taken directly out of the cell . . . I was escorted directly out, with
my eyes closed.” He was taken to the infirmary, seen by a doctor, and “[t]he largest pieces [of glass] that they
could see, they removed,” after putting numbing drops in his eye. Claimant then went to an outside emergency
room, where he was seen by an eye specialist. He described what happened at the hospital as “very painful. They
scraped – they numbed the eye again, and they flipped the lid, and I remember them scraping, trying to remove as
much . . . as they could.” According to claimant, a five millimeter piece of glass was removed from his eye. He
recalled that he was given antibiotics and had the choice of having a butterfly stitch on the inner eyelid or of letting
the laceration heal by itself. Claimant said he chose the latter option because the doctor said the stitch would be
very painful. He explained that instead of stitching, “medical tape” was applied and he sat for half-an-hour to an
hour until the bleeding stopped. He was told the tape would dissolve and he was given solution with which to wash
his eye.
The testimony differed as to what happened when claimant returned to Clinton from the emergency room.
Claimant maintained that he was ordered to return to his cell and pack up his property, after which he was escorted
to another housing block, while defendant argued that claimant never returned to that cell, but rather his property
was inventoried, packed and moved for him to another cell.
White said that he returned to the emergency room within the week – he referred to both his eye swelling
shut and to a “scratching burning sensation.” He was also sent to an ophthalmologist to whom he complained that
his vision was a “little foggy.” Claimant recalled that he saw such doctor at least three times.
Claimant testified that prior to the accident, he had no problems with his eyes, and did not wear glasses.
According to White, he now wears glasses because he is “experiencing difficulties reading or focusing on an object
for an extended period of time” and can only read without glasses “for a short period of time.” He added that if he
reads for too long, he gets a headache, for which he takes Tylenol “like vitamins.”
As to the condition of his eye at the time of trial, claimant stated that in the mornings, he needs to “apply a
warm rag to separate my eyelids because of the buildup over the night of fluids . . . I have to apply a warm compress
. . . [to] allow the crust . . . to soften to separate it with my fingers gently. Then [I] flush [the eye] with a solution
several times.” Claimant added that he also now has to use “A&D ointment” to prevent infection. Claimant must
also use artificial tear drops and was told that this would be required “indefinitely because [of] something dealing
with the tear ducts. . . . So I have to use the artificial tears . . . several times a day.” Finally, asked if he currently
had blurred vision, claimant said that if he looks directly ahead and focuses, “it’s like a fog.” He characterized his
eyesight as having deteriorated after the accident.
*
*
*
Correction Officer Robert Whitcomb testified that he had been employed at Clinton Correctional Facility
for 20 years and was familiar with claimant’s housing unit, the E Block, where, as of the date of the accident, he had
been “First Officer” for about three years. He described his duties as First Officer as being “in total charge of the
Housing Unit . . . six to seven correctional officers . . . report directly to me. I keep and maintain a count of 140
inmates at any given moment . . . I’m a clerical person. I do paperwork . . . I can be a mechanic. I can pass out
lunch. I do rounds. It’s just a multi-faceted position . . . I am basically responsible for all staff and inmates” in the
unit.
Whitcomb was familiar with claimant’s accident, as he responded to the cell that day and found claimant
standing near his bed with his hand over his eye. Claimant told Whitcomb that the light bulb had fallen into the
sink and that glass had gone into his eye. Whitcomb recalled that he asked claimant what he had been doing and
White said he had been lying on his bed. The officer said he did not notice whether there was a cover on the light
in claimant’s cell.
As to the inspection of cells, Whitcomb testified that “[w]hen an inmate leaves a cell, an officer goes in and
inspects the cell to make sure everything is in its proper place, toilet works, sink works, bed’s there, mattress, light
and light cover is in its place.” According to Whitcomb, if an inmate was to be moved into a newly empty cell, he
would not be moved in if the light cover was missing. Contrary to claimant’s assertion, Whitcomb testified that an
inmate who is about to occupy the cell is not present at the time the cell is prepared for him. As to cell frisk slips,
the officer stated that when an inmate is already in a cell, a sergeant or a higher in rank can give an order that he
wants the cell frisked, in which case, the inmate is permitted to stand outside while the cell is being frisked, and he is
given a cell frisk form. Whitcomb distinguished the cell frisk procedure from claimant’s situation: “it was not a
cell frisk. It was just a general cell inspection upon . . . an occupant leaving the cell.”
With regard to light fixtures, Whitcomb stated that “the covers were to be on the lights at all time[s] . . . We
maintain a stock of covers. They do get broken. They do become missing. We carry . . . [s]ecurity screws with
security screwdrivers to replace these things or if . . . they’re removed, they’re reapplied to the light, and that’s . . .
Standard Operating Procedure.” He added that it took “[v]ery little effort . . . five minutes” to put a cover on a light
fixture.
Whitcomb also testified that inmates tamper with the light fixtures “[a]ll the time. That’s why we had all
these extra supplies and the extra light covers . . .” He explained that inmates darken the light covers by taking the
screws off the cover and removing it. “They’ll take a Bic lighter, match, piece of toilet paper, they’ll run it inside
the light so the . . . flame will collect on the surface, the inside surface of this clear plastic cover. Once it’s at their
degree of opaqueness, they’ll reapply the cover, reapply the . . . two security screws and they have less light, more
comfortable.” He also explained that inmates are able to remove the screws with paper clips, and ballpoint pens,
“[a]nything that will fit in [the] little holes.”
Whitcomb testified that there are also other inspections of the cells: the Superintendent and Deputy of
Security make a complete inspection of the block on a weekly basis and correction officers make daily inspections
of their companies. “A company officer would go down their companies repeatedly during the day checking cells
for – for everything. Sick inmates, broke[n] equipment, checking cell gates to make sure that they’re secure. Just
many, many things we do daily.” According to Whitcomb, such inspections included checking the covers on the
lights. Finally, according to Whitcomb, there was no “construction, drilling or banging” on December 9, 1997.
*
*
*
Claimant must prove by a fair preponderance of the credible evidence that defendant was negligent and that
defendant’s negligence was a substantial factor in causing his accident, i.e., proximately caused the accident. See
PJI 1:23; 1:60 and 2:70.
It was not established at trial how or why the light bulb fell from the fixture, e.g., whether it exploded, was
loose or for some other reason. While claimant implied that banging and drilling caused the accident, defendant
denied that any such activity occurred and I find that claimant offered insufficient evidence to prove that such was
the cause of the accident.
With regard to whether the fixture had a cover, as set forth above, claimant testified that it did not,
characterizing it as a “naked bulb.” Correction Officer Whitcomb, however, testified that when a cell was being
prepared for a new inmate, it would be checked for a light cover and an inmate would not be placed in a cell without
a light cover. In any event, even if it were assumed that the fixture lacked a cover, there was no evidence presented
as to the purpose of a cover (e.g., diffusion of light or some safety purpose) or whether a cover would have
prevented the accident. For instance, claimant’s exhibit 3 photograph appears to show an opening on the side of the
cover.
Claimant points to the doctrine of res ipsa loquitur, which permits, but does not require, the trier of fact to
infer negligence from the prevailing circumstances. The elements of such doctrine are: (1) the event must be of a
kind that ordinarily does not occur in the absence of negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; and (3) it must not have been caused by any voluntary
action or contribution on the part of the claimant. See Kambat v St. Francis Hospital, 89 NY2d 489, 494, 655
NYS2d 844, 846 (1997).
I cannot find that a light bulb falling from a fixture is the kind of event that ordinarily does not occur unless
there was negligence. There was no evidence of any prior similar accidents, and no evidence of any prior
complaints about loose bulbs or missing covers, even assuming claimant’s theory of the case. Moreover, the light
fixture was not in the exclusive control of the defendant; claimant entered the cell the day before the accident and
clearly had access to the fixture and bulb(s) as did other inmates occupying the cell before claimant. See, e.g.,
claimant’s exhibits 2 and 4. In short, the doctrine of res ipsa loquitur does not apply in this case.
For the foregoing reasons, claimant has failed to prove that defendant was negligent and that any such
negligence proximately caused his accident. Claim no. 99085 is thus dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
August 23, 2004
New York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims