Rodriguez v. State

• Decision Date: 18 April 1974
• Docket Number: No. 54030,54030
• Citation: 355 N.Y.S.2d 912,78 Misc.2d 174
• Parties: Elba RODRIGUEZ, as mother and natural guardian of infant, Yolanda Rodriguez, and Elba Rodriguez, Individually, Claimants, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 912

355 N.Y.S.2d 912

78 Misc.2d 174

Elba RODRIGUEZ, as mother and natural guardian of infant Yolanda Rodriguez, and Elba Rodriguez Individually, Claimants, v. The STATE of New York, Defendant.

Claim No. 54030.

Court of Claims of New York.

April 18, 1974.

Abraham Kadanoff, New York City, by Milton Gurwitz, New York City, of counsel, for claimants.

Louis J. Lefkowitz, Atty. Gen., by Dace Epermanis, Asst. Atty. Gen., for the State.

DECISION

ALBERT A. BLINDER, Judge.

These are tort claims to recover for personal injuries sustained by Yolanda Rodriguez, a patient at Willowbrook State Hospital, Staten Island, New York, on April 18, 1971. The claims were filed by her mother, Elba Rodriguez, as mother and natural guardian and individually.

Yolanda Rodriguez is a profoundly retarded girl who was, at the time of the alleged incident, five years old. She had an estimated I.Q. of 5 and was paraplegic and spastic. Her condition was diagnosed as hydrocephalic ¹ and spina bifida. ²

The infant was not able to sit, crawl or take care of her needs. She could not move her legs in any degree, but could move her arms. When placed on a surface, Yolanda could not turn over, nor could she move forwards or backwards. She was incapable of changing her position but would stay quiet where she was placed.

The first indication of Yolanda's injury, according to statements and an accident report subsequently dated, was at 12:30 A.M. on April 18, 1971 when an attendant checking her temperature noticed what appeared to be a little swelling on the left thigh. At 6:00 A.M., the attendant checked again and the swelling looked more definite. The Department of Mental Hygiene's 'accident or injury report' reveals that prior to this discovery the child was last examined at 3:15 P.M., April 17, 1971, when she was fed and given her evening care. At that time, the attendant stated in her statement that Yolanda did not appear uncomfortable nor did she have swelling or discoloration of the left knee. At the end of her shift, 11:30 P.M., she made the same observations.

Elba Rodriguez, the child's mother, visited her daughter on April 18, 1971, which was a Sunday. She saw that her daughter's leg was 'shiny and red' and that Yolanda was crying. ³ She told an attendant about this and then a doctor who appeared on the scene and examined the child. On the 19th of April, 1971, x-rays were taken of the leg and it was disclosed that Yolanda had suffered a supracondylar fracture of the lower left femur. ⁴

The child was located in a building which had four wards. There were about 40 children in each ward at the time of the incident with two or three nurses who would rotate between the various wards. During the night, there would be only two nurses to cover four entire buildings. In addition to the nurses, there would be four attendants in the morning, three in the afternoon, and two in the evening, all in each ward.

Yolanda was nonambulatory and most of the time she was in bed. The ward where she was housed was occupied by ambulatory and nonambulatory children.

Yolanda's mother testified that she observed several occasions when there were no attendants in the ward. She also stated that on at least three separate occasions children from other wards would wander in.

This is the sum total of the evidence. The State offered no defense and moved to dismiss because the claimants failed to prove a Prima facie case and because of the failure of the claimants to sustain their burden of proof by a fair preponderance of the credible evidence.

The child clearly is Non sui juris. She cannot provide any evidence of the occurrence which caused her injury. The examination before trial is likewise unrevealing as to how the injury happened. The statements taken from the attendants and the accident or incident report contained in the hospital record only recite the facts pertaining to their alleged discovery of the fracture by the hospital staff.

The claimants' counsel candidly conceded that the claimants are unable to make any specific allegation as to the causation of the fracture and asks the Court to apply the doctrine of Res ipsa loquitur.

The attorney for the defendant, in her well prepared brief, argues that the aforesaid doctrine is not applicable to the case at bar.

Res ipsa loquitur has been termed an uncertain doctrine which has been the source of so much trouble to the courts that the use of the phrase itself has become a definite obstacle to any clear thought. ⁵ § 39 Prosser on Tort (4th ed).

The doctrine of Res ipsa loquitur means 'that certain occurrences contain within themselves a sufficient basis for an inference of negligence . . .'. Foltis, Inc. v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455, 460 (1941). The doctrine applies where it is improbable that the accident would have happened if reasonable care had been exercised and the defendant had control of the agency producing the injury. Neuhoff v. Retlaw, 289 N.Y. 293, 45 N.E.2d 450 (1942); Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455 (1941), Supra; Massa v. Nippon Yusen Kaisha, 264 N.Y. 283, 190 N.E. 641 (1934). The doctrine means merely that the facts of the occurrence permit the inference of negligence, not that they compel it, and whether the inference should be drawn is a question which must be left to the jury. Prince, Richardson on Evidence, § 93 (10th ed.). In this forum, the Court decides this question.

The claimants have requested that the Court take judicial notice of the unsatisfactory conditions prevailing at the Willowbrook State School on the basis of newspaper reports and investigations. While the Court may take judicial notice of facts which are notorious, Prince, Richardson on Evidence, § 9 (10th ed.), we need not resort to such reports since an excellent source of information on the conditions of Willowbrook School is found in NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC. V. ROCKEFELLER, 357 F.SUPP. 752 (DIST.CT., E.D., N.Y., 1973)⁶. The Court will take judicial notice Sua sponte of the New York State Association for Retarded Children decision (hereafter referred to as the Willowbrook Decision), Supra. CPLR 4511; see George v. Time, Incorporated, 259 App.Div. 324, 19 N.Y.S.2d 385 (1st Dept., 1940), affd. 287 N.Y. 742, 39 N.E.2d 941 (1942).

In the Willowbrook Decision, Judge Judd found, Inter alia, that:

'In spite of legislative reports dating from 1964, which complained of overcrowding and inadequate staffing at Willowbrook, conditions are still inhumane. The institution has not yet recovered from a hiring freeze which prevented even the replacement of departing staff members from December 1970 until November 1971 and prevented the hiring of any additional staff until January 1972.

'Testimony of ten parents, plus affidavits of others, showed failure to protect the physical safety of their children, and deterioration rather than improvement after they were placed in Willowbrook School. The loss of an eye, the breaking of teeth, the loss of part of an ear bitten off by another resident, and frequent bruises and scalp wounds were typical of the testimony. During eight months of 1972 there were over 1,300 reported incidents of injury, patient assaults, or patient fights.

'The number of ward attendants is below the level which even the Director of Willowbrook thinks proper, and unauthorized absences worsen the shortage. There are only half the number of doctors that are needed, and nurses, physical therapists, recreation therapists, and other professional staff are in short supply. * * *

'Physical maintenance is poor, with a backlog of 750 work orders and at least one toilet inoperative in every battery of toilets.

'These conditions are hazardous to the health, safety, and sanity of the residents. * * * A most striking deficiency is the inadequate coverage of dayrooms, where the ratio is frequently 15 or more residents per attendant on duty even for profoundly or severely retarded residents.

'Over three-fourths of the residents of Willowbrook are profoundly or severely retarded, and would require resident care personnel in the ratio of 1:5 for the first shift, 1:7 for the second shift, and 1:15 for the third shift, to comply with the 1964 A.A.M.D. Standards.' New York St. Ass'n for Retard. Child., Inc. v. Rockefeller, D.C., 357 F.Supp. 752, 756 (1973).

At the risk of citing platitudes, it is necessary to discuss the basic legal questions confronting the Court in considering the defendant's motions. Case law has held that the State is not an insurer of the health of its patients, Hirsh v. State of New York, 8 N.Y.2d 125, 202 N.Y.S.2d 296, 168 N.E.2d 372 (1960); Soto v. State of New York, 39 A.D.2d 993, 333 N.Y.S.2d 588 (3rd Dept., 1972); Robinson v. State of New York, 17 Misc.2d 775, 187 N.Y.S.2d 257 (Ct.Cls., 1959), but the State owes to patients in its institutions a duty to exercise every reasonable care to protect them from injury, self-inflicted or otherwise. The degree of care should be measured by the physical and mental ailment of the patient known to the State and by his capacity to provide for his own safety. Weihs v. State of New York, 267 App.Div. 233, 45 N.Y.S.2d 542 (3rd Dept., 1943); Jones v. State of New York, 267 App.Div. 254, 45 N.Y.S.2d 404 (3rd Dept., 1943); Shattuck v. State of New York, 166 Misc. 271, 2 N.Y.S.2d 353 (Ct.Cls., 1938), affd. 254 App.Div. 926, 5 N.Y.S.2d 812 (4th Dept., 1938); Gaccione v. State of New York, 173 Misc. 367, 18 N.Y.S.2d 161 (Ct.Cls., 1940).

The State is not responsible for failure to guard against the remote possibility of an accident, and it is responsible, in the operation and management of its institutions, only for hazards reasonably to be foreseen. Hawley v. State of New York, 16 N.Y.2d 809, 263 N.Y.S.2d 6, 210 N.E.2d 358 (1965); Flaherty v. State of New York, 296 N.Y. 342, 73 N.E.2d 543 (1947).

It is also clear that negligence cannot be presumed from the mere happening of an...