Opinion
# 2015-029-045 Claim No. 118565 Claim No. 120433
07-01-2015
L. v. THE STATE OF NEW YORK
ALPERT, SLOBIN & RUBENSTEIN, LLP By: Gary Slobin, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General
Synopsis
The claim for negligence and gross negligence was filed in 2010 by the guardian of Paula L., a 61-year old woman with the mental age of a one-year old who had been sexually assaulted at least twice over a period of three days in 2009. The assaults took place in the State-run group home where she resided. After Paula died in 2011, the caption was amended to reflect the change in the guardian's status to administrator of the estate. A separate claim for wrongful death was filed, but it was later withdrawn. Following a unified trial, the court found the State liable for negligence and gross negligence and awarded claimant $2,500,000 in damages for the deceased's pre-death conscious pain and suffering. The State's negligence was established by: its heightened duty of care arising from Paula's diminished mental capacity, and inability to speak or to care for herself; the State's violation of that duty by failing to exercise reasonable care in protecting her from the reasonably foreseeable risk of assault by someone with unsupervised access to the home and the residents; the proximate causation of Paula's injuries resulting from the assaults; and Paula's conscious pain and suffering.
Case information
| UID: | 2015-029-045 |
| Claimant(s): | WILLIAM L., AS ADMINISTRATOR OF THE ESTATE OF PAULA L. |
| Claimant short name: | L. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118565, 120433 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | ALPERT, SLOBIN & RUBENSTEIN, LLP By: Gary Slobin, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 1, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim filed in 2010 (No. 118565) by William L. ("claimant") as guardian for his incompetent sister Paula L. ("Paula") alleges that Paula was sexually assaulted on at least two occasions in a State-run facility between December 18 and 21, 2009, resulting in injuries requiring hospital treatment. Paula was born with profound mental "retardation," and as a teenager she was placed in a State-run facility. When the assaults occurred, she was 61-years old with the mental age of a one-year old child, non-verbal, still under the State's exclusive supervision and care, and residing at the Sycamore IRA, a group home in New Windsor, New York operated by the State Office for People With Developmental Disabilities ("OPWDD"). There was a criminal investigation, but to date no-one has been identified as a possible suspect.
The word "retardation" is used throughout the medical records submitted as exhibits.
The claim seeks damages for Paula's personal injuries and pain and suffering resulting from the negligence of defendant's employees in failing to protect her and to provide her with adequate care. The claim also sought damages on behalf of William L. individually, based on the allegation that he was "caused to sustain financial damages resulting from the defendants' contractual breech [sic] with him related to the care of his sister." In a Decision and Order filed March 29, 2013, the court struck any reference to a claim for breach of contract, based on lack of subject matter jurisdiction. Therefore, the individual cause of action of William L. is dismissed. The claim for wrongful death (No. 120433) filed after Paula passed away in 2011 by William as administrator of Paula's estate has been withdrawn.
The caption of the first claim was amended to reflect the change in William L.'s status from guardian to administrator of the estate.
A unified trial on the claim of negligence was held on February 10 and 11, 2015. Claimant testified and called eight other witnesses: Veronica Lawton, who served as the Supervisor of Paula's group home in 2009; Nicole Powell Dawson, the rape crisis advocate who was present at Paula's sexual assault examination; Maureen Zekus, an aide who was providing care to Paula when she was sexually assaulted in 2009; Patrick Beyea, the New York State Police Officer who investigated Paula's sexual assault; Dr. Adhi Sharma, claimant's expert in emergency medicine; Susan Abreu, a direct "day hab" staff member at the Goshen day treatment center who noticed blood in Paula's diaper on December 21, 2009; Laura Vitaliani, the nurse at Goshen who sent Paula to the hospital on December 21, 2009; and Shari Bakst, who was the team leader with OPWDD in December, 2009, responsible for overseeing Paula's group home.
Claimant's evidence at trial, including testimony, deposition excerpts, photographs and various documents, established the following facts:
Paula was born profoundly mentally "retarded." In December 2009, when Paula was 61, she had the mental age of a one-year old, was unable to speak, and could not care for herself. She wore diapers and required help with their changing, as well as with toileting and feeding herself (Trial Testimony [TT]: 23, 25-26; Bazelow Dep: 24). She was residing at Sycamore Home, a State-run facility, with four other similarly disabled adults when, between the dates of December 18 and 21, 2009, she sustained injuries consistent with her being subjected to multiple sexual assaults. These injuries included severe bruising on both inner thighs, which were like "fingers" (TT: 221-223, 228), vaginal bleeding, internal lacerations to Paula's vagina indicating forcible penetration by a penis or a foreign object, and a laceration to her external labia (TT: 405; Bazelow Dep: 37-38, 53-58, 69-70). The differing ages of Paula's bruises, and the appearance of vaginal bleeding well after the initial bruising, indicated that she had been subjected to multiple sexual assaults (TT: 317-321; TT: 373-399; Bazelow Dep.: 47-70).
"Bazelow Dep" refers to the deposition of Terresa Bazelow, the Sexual Assault Nurse Examiner who examined Paula on December 21, 2009 (Ex. 32).
Security at the Sycamore Home ("Home") was poor. There were no surveillance cameras, and doors did not lock automatically; they required manual locking by key or deadbolt (TT: 139-141, 163). Aides employed by the State to look after the residents and the Home were instructed to lock all windows and doors (id.), but they sometimes forgot, and regularly left the entrance and back doors unlocked (TT: 32-33, 139-140, 330). There was also no regular supervision of the aides at night or on weekends. Security and monitoring of the residents was particularly poor during the weekend that Paula was assaulted for the second time. Aides who were unfamiliar with the Home and the residents were working because the Home was short staffed (TT: 137-140, 163, 307-311, 329-330). One of the two aides working a night shift that weekend was operating on little sleep as she had also worked a full-time day job (TT: 329-330). There is also some evidence that one of the two aides working a night shift left the Home before her shift was over, and that early in the morning on December 21st, the supervisor was working at the Home alone in violation of the policy that two aides be present at all times (TT: 84-93).
Between December 18 and 21, 2009, five of the aides working different shifts at the Home observed bruising on Paula's inner thighs (TT: 221-223, 228, 234-235; TT: 294, 309-310; TT: 312, 313; Malcolm Dep: 23, 25-26 [Ex. 2]; Johnston Dep: 28-29, 31 [Ex. 1]). The bruising looked like "someone tried to pry her legs open" (TT: 313). The rules mandated that on observing bruising or other injuries to a resident of the Home, staff members were required to record their observations contemporaneously in the Continuing Notes, an official record kept at the Home for each resident, and to report their observations to a nurse. If they could not reach the nurse, they were to contact and advise somebody who could take appropriate action. The aides who observed bruising on Paula's thighs did not report their observations to anybody, did not seek medical attention for Paula, did not record their observations, and did not take any steps to protect Paula from further harm (id.; TT: 472-474). This was true even though it appeared like someone had "[done] something to her" (Johnston Dep: 28-29, 31).
The reporting requirements were set forth in the "Hudson Valley DDSO Emergency Guidelines" (Ex. 28), which were in effect, and the staff would have received an "Injury Memo" (Ex. 30), instructing them to notify a nurse any time bruising was observed, and to document even minor injuries on a separate form. None of these procedures was followed (TT: 114-119, 157).
The staff had not received training on how to recognize sexual abuse (TT: 154-155).
Paula did not receive treatment for her injuries until Monday, December 21st, when she was taken to the Goshen day-hab center where the Sycamore Home residents spent their weekdays. Goshen aide Susan Abreu ("Abreu") was helping Paula in the bathroom when she noticed blood in Paula's diaper and bruising on her thighs. At that point, Abreu notified a nurse, and Paula was taken immediately to the hospital (TT: 425-442, 451). At the hospital, Paula underwent a sexual assault nurse examination ("SANE"). She was confused and tense, but calmed when her brother arrived (TT: 186-192; Bazelow Dep: 25-30, 37-38, 53-58). A rape kit was assembled and taken to the State Police (TT: 193-195; TT: 328). Because the aides at the Home had repeatedly bathed and showered Paula over the weekend, any physical evidence from the assault would have been washed away (TT: 197-204; TT: 315). No DNA from other persons was found (TT: 328).
After learning that Paula had been taken to the hospital, two of the aides at the Home who had observed bruising on Paula's legs in the preceding days inappropriately altered the logbook by creating and backdating entries in the Continuing Notes. They did so allegedly in the presence of their supervisor Veronica Lawton (TT: 221-223, 228, 234-235, 273-274; Exh. 27; TT: 305-306). After Investigator Beyea interviewed the aides who had been on duty from December 18th to 21st, he ruled them out as suspects, but concluded that they had lied about what happened, specifically about when they recorded observations of Paula's bruising, whether they had been sleeping on duty or had taken Paula out of the Home, and whether Paula had been out of their control at any point. Beyea also ruled out Paula's roommate as a suspect, and the possibility that Paula could have or would have hurt herself. He concluded that the staff's negligence had provided an unknown person or persons with the opportunity to attack Paula (TT: 96, 333-334).
Claimant's expert in emergency medicine, Dr. Adhi Sharma, explained that after the assaults Paula had been placed on a course of HIV medications, which had significant side effects, including nausea, vomiting, diarrhea and/or constipation, loss of appetite, headache, dizziness and malaise (TT: 379). Aide Susan Abreu noticed that Paula was more "down," with a loss of appetite and interest (TT: 384). Dr. Sharma opined that: Paula's injuries were consistent with an assault involving vaginal penetration and forcibly pushing the legs apart; the bruising alone was "highly suspicious of sexual assault"; Paula had sustained multiple traumas as the result of at least two different assaults; Paula had the ability to feel "the gamut of emotions," pain and suffering; and the assaults could have had a dramatic impact on her psyche (TT: 371-399).
The State did not call any witnesses or present any additional proof at trial.
Liability
Claimant has the burden to prove the State's liability by a preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]). The elements of common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury. The scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived (Ruiz v Griffin, 71 AD3d 1112, 1114 [2d Dept 2010]).
Claimant argues that the State had a heightened duty of care to Paula given her diminished mental capacity, inability to speak, and complete lack of capacity to care for herself, and the State violated its duty by: "failing to protect Paula from the initial attack; failing to obtain medical care and treatment for Paula as soon as the initial bruising was observed; and failing to protect Paula from subsequent attack" (Claimant's Memo: 12). The State does not dispute that it had a heightened duty toward Paula, instead arguing that claimant failed to prove a breach of that duty, and proximate cause because: the aides' admitted lies colored the entirety of their testimony; the evidence does not show exactly when, where and by whom Paula was hurt; and the sexual molestation constituted an "abandonment of service" outside the scope of the aides' employment (Defendant's Memo: 16-18).
The court finds that claimant has proved the State's liability for negligence and for gross negligence. The State has "a duty to exercise reasonable care in protecting mentally disabled persons [under its exclusive care and control] so as to prevent their being injured" (Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986] [finding State may be held directly liable for injuries sustained by mentally disabled individual who is resident of state certified family care home when individual suffers epileptic seizure while in locked bathroom in home]; see Dawn VV v State of New York, 47 AD3d 1048, 1050 [3d Dept 2008]). The State's duty extends to safeguarding patients and residents in State facilities from injuries caused by third parties,
" 'measured by the capacity of the patient [or resident] to provide for his or her own safety' " (id., quoting N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]). This duty is reflected in the Standards for Family-Type Homes, included in the New York Social Service Regulations for Adult Care Facilities, 18 NYCRR § 489.3:
(b) The operator of a family-type home for adults shall: (1) live in the home; (2) be at least 21 years of age; (3) be of good character; (4) be physically and mentally capable of operating the home; (5) be able to speak, read and write English; (6) provide 24-hour-a-day supervision, care and services to meet the needs of the residents; assure the protection of resident rights; and promote the social, physical and mental well-being of residents [. . .]
This is a clear case of total dependence on the State by a disabled individual who was completely unable to function on her own and to protect herself. In its Dawn VV decision, supra, finding the State partially liable for injuries sustained by a 39-year old autistic woman with the mental age of 51 months, the Third Department stated, "It is hard to conceive of an adult more vulnerable than claimant." Paula fit clearly within this cogent description. She was also living in a home with four other women who functioned at a similarly minimal cognitive level. The State had a duty to care for and to protect the helpless residents of the State-run home where they resided. That duty encompassed taking minimal precautions against intruders entering the Home and injuring the defenseless residents, such as locking the doors and having a sufficient number of trained, alert and responsible staff members, to ensure that nobody without a key could enter the Home unbeknownst to a member of the staff. Yet the evidence showed that the front and back doors were regularly left unlocked, as well as other rule and policy violations that created opportunities for someone to gain unsupervised access to Paula and the other residents.
There was no evidence as to the level of crime in the area of Paula's group Home, but it is improbable that the area was like "Mayberry" and safe enough to negate the need for locks.
Defendant argues that claimant's proof was insufficient to establish that defendant's negligence proximately caused the sexual attacks on Paula because the aides lied, and the attacks were unforeseeable intervening criminal acts not done in the scope of employment. The last point is an empty recitation of law that completely ignores the evidence and the applicable legal principles. The employees were not suspects. There is no issue that the State is liable for their negligence and the injury it proximately caused (Ct Cl Act § 8; see Jones v State of New York, 33 NY2d 275, 280 [1973]). Nor would an intruder's act of sexual abuse be considered an intervening criminal act. Harm caused by an intruder, or by a stranger outside the Home with unsupervised access to a resident, is within the scope of risks against which the State was under a duty to protect Paula (see Derdiarian v Felix Contractor Corp., 51 NY2d 308, 316 [1980] [no interruption where worker injured by out-of-control car in improperly protected work area]). The precise harm that occurred need not be foreseeable. Claimant's burden is not to show exactly what happened and why, but to show "it was reasonably foreseeable that an injury could occur" (Maldonado v State of New York, 27 Misc3d 1233[A] [Ct Cl 2010]), and that the State's conduct "was a substantial causative factor in the sequence of events which led to [Paula's] injuries" (Harris v State of New York, supra, 117 AD2d at 305). Claimant need not show "precisely how it came about" (Maldonado v State of New York, supra, citing Harris v State of New York, id.).
Claimant has met his burden with respect to all of the sexual attacks against Paula. The State had a duty to protect her, it failed, and its failure was unreasonable. With respect to the first assault, the State should have known, based on its own policies and practices, that the failure to monitor and supervise Paula created a risk of injury to her, and that the following negligent acts would result in just such a failure: leaving the doors and windows of the Home unlocked in violation of the rule requiring locking at all times, and failing to enforce that rule; staffing the Home with poorly trained aides unfamiliar with the residents; assigning an aide with a day job to night duty, risking that the aide would sleep on the job in violation of the rules; allowing poorly trained aides unfamiliar with the residents to take them out of the Home; and failing to have two aides present at all times, amounting to "abandonment" under the rules. The rules under which the Home's aides worked concerned safety, monitoring, and preventing injury and unsupervised access to the residents. Assault upon a resident by someone with unsupervised access was within the scope of the risks against which the State had a duty to protect Paula.
Claimant also argues that negligence should be inferred under the doctrine of res ipsa loquitur. While there may be some academically interesting analysis involved in such argument, the inference is unnecessary in view of this court's decision. Defendant, having presented no contrary or even mitigative evidence, is liable in negligence for Paula's injuries, pain and suffering caused by the first assault, and the staff's subsequent negligent failure to report it or to seek medical attention.
Defendant is also liable for the subsequent sexual assault and the resulting harm to Paula.
In the opinion of claimant's medical expert Dr. Sharma, based on the differing ages of Paula's bruises, and vaginal bleeding days after the bruising was initially observed, Paula had sustained multiple traumas in the days leading up to her SANE examination on December 21st (TT: 371-405). Paula could have and should have been spared the trauma of another attack after the one that caused the prominent bruising observed by aides working on December 18th. The aides admitted, and could not credibly deny seeing the bruises, because their duties included changing Paula's diapers and showering her. Yet they did nothing and in doing so they violated safety rules requiring reporting and recording. Their negligent acts, as well as the lack of effective security measures and enough properly trained and monitored staff, were the proximate cause of the subsequent attack(s).
Defendant's argument that the aides were not credible because they lied about when they saw the bruises is circular and self-defeating. To find that they lied about the timing of their observations, the court must accept as credible their admission of wrongdoing, which leads inevitably to the conclusion that they observed Paula's bruises on December 18th.
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If they had reported the bruises to a nurse, as required, it is likely that Paula would have been removed from the Home and taken to a hospital. If the aides had ensured that the doors were locked, and monitored Paula closely day and night, another attack would have likely been thwarted. But the staff was concerned about the possible repercussions to them from Paula having been injured, so they first did nothing, then attempted to hide it. This is sufficient to establish defendant's negligence, as well as gross negligence. "To constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others" (Ryan v IM Kapco, Inc., 88 AD3d 682, 683 [2d Dept 2011] [internal quotation marks and brackets omitted]). "Stated differently, a party is grossly negligent when it fails to exercise even slight care or slight diligence" (id. at 683 [internal quotation marks omitted]).
Damages
In the post-trial brief, claimant seeks damages in the amount of $5,000,000 for Paula's pain and suffering caused by defendant's negligence. Since the wrongful death claim has been withdrawn, and Paula was unable to work, damages are limited to Paula's pre-death pain and suffering. A damages claim for conscious pain and suffering "requires proof that the injured party experienced at least some level of cognitive awareness following the injury" (see Sanchez v City of New York, 97 AD3d 501, 506 [1st Dept 2012]). "Further, there is no requirement that 'the fact finder . . . sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated' " (id., quoting McDougald v Garber, 73 NY2d 246, 255 [1989]).
Although Paula's awareness of the world was that of a one-year old, there was substantial evidence that she was conscious and aware during and after the attacks. Indeed, the bruising on her thighs was consistent with her having fought back while someone forcibly held her down and her legs open, then inserted what was more than likely a foreign object into her vagina. That the attacks caused Paula physical pain is evidenced by the bruising she sustained, the tears to her vaginal wall and labia, resulting in bleeding, and the medical interventions she had to endure, such as a course of HIV drugs with severe side effects. Her suffering and the damage to her psyche is not so easily identified, but claimant succeeded with lay and expert testimony, the photographs of Paula's injuries, and the medical records. The direct and circumstantial evidence established the horrific nature of the attacks, Paula's child-like vulnerability and inability to call out for help, and her complete abandonment by the staff after the initial attack. The reasonable inference to be drawn from the failure by unfamiliar staff to do anything to help or protect her after the first attack, is that Paula was left feeling anxious and fearful of being hurt again, which is exactly what happened. Claimant also presented testimony, from Paula's brother, and various staff members, that before the attacks Paula had been a joyous and happy individual, and in the aftermath of her ordeal she became sad and withdrawn.
The court finds that Paula suffered damages in the amount of $2,500,000 for her pre-death conscious pain and suffering. In addition to the amount of $2,500,000, claimant is entitled to recover from defendant, and defendant shall pay to claimant the filing fee of $50 pursuant to Court of Claims Act §11-a(2), plus statutory interest from the date of the judgment until satisfaction thereof. The Clerk of the Court is directed to enter judgment against defendant in the amount of $2,500,000 in favor of claimant, together with the $50 filing fee, and statutory interest from the date of the decision.
July 1, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims