Opinion
# 2014-015-591 Claim No. 120199
12-19-2014
RODNEY MCNEIL v. THE STATE OF NEW YORK
Rodney McNeil, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Douglas Kemp, Esquire Assistant Attorney General
Synopsis
Claim alleging damages from illness caused by bird droppings in the mess hall at Great Meadow Correctional Facility was dismissed after trial. Claimant failed to establish that the defendant failed to take reasonable measures to remedy the condition.
Case information
| UID: | 2014-015-591 |
| Claimant(s): | RODNEY MCNEIL |
| Claimant short name: | MCNEIL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120199 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Rodney McNeil, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Douglas Kemp, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 19, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a pro se inmate, asserts three distinct causes of action: the first, for damages arising from illness allegedly caused by bird droppings in his food in the mess hall of Great Meadow Correctional Facility (Great Meadow); the second for earnings allegedly confiscated from his inmate account by prison officials, and the third for sexual assaults during the course of pat frisks. These claims proceeded to trial by remote video conference on September 4, 2014.
Claimant testified that he was having lunch in the mess hall at Great Meadow when birds flying overhead "pooped" in his food. He testified that he did not see the bird droppings on his food until a fellow inmate pointed it out to him and he stopped eating. After the incident, claimant suffered from headaches, nausea and diarrhea. He was treated by a nurse in the medical unit but did not see a doctor until approximately one week later. Claimant thereafter filed a grievance complaint regarding the failure to provide him medical care and the refusal of the doctor who did finally see him to provide any medical treatment or excuse him from going to work (Exhibit 2). Deputy Superintendent for Administration, Jeffrey Lindstrand, responded to the claimant's complaints regarding pigeons in the mess hall by stating that "the facility has tried multiple different solutions, however[,] none have been fully successful as of this time" (Exhibit 1). Deputy Superintendent Lindstrand also noted as complicating factors the age of the building (103 years old) with its many openings for birds to fly in and the increased difficulty in controlling the situation in the summer months due to the need to keep some of the doors and windows open for ventilation.
Quotations are from the audio recording of the trial.
Defendant called Jeffrey Nelson Lindstrand to testify on its behalf. Deputy Superintendent Lindstrand testified that he investigated claimant's complaint regarding the bird droppings. He conceded that the facility has had a problem with birds getting into the building because the building is 103 years old. He stated that they have taken "recent" steps to minimize the problem but have been unable to eradicate it completely. He testified that in addition to the age of the building itself, some of the doors leading to the recreation area are left open for ventilation in the summer months because there is no air conditioning in the mess hall. In addition, the doors are left open so as to permit the correction officers to exit the area quickly when required for security reasons. When asked on cross-examination why there are birdhouses in the mess hall, Deputy Superintendent Lindstrand responded that they are not birdhouses but bird traps which failed to work.
"As a landowner, the State owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], lv denied 68 NY2d 611 [1986]; see also Preston v State of New York, 59 NY2d 997, 998 [1983]; Gonzalez v State of New York, 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 [2009], rearg denied 15 NY3d 820 [2010]; Colangione v State of New York, 187 AD2d 844 [3d Dept 1992]; Rosado v State of New York, 139 AD2d 851 [3d Dept 1988]). This duty obligates the State "to take every reasonable precaution to protect those who are in its institutions" (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]; see also Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]; Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], lv dismissed 97 NY2d 649 [2001]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]; Rosado v State of New York, 139 AD2d 851 [3d Dept 1988]). Nevertheless, the State is not an insurer against any injury which might occur on its premises and negligence generally will not be inferred from the mere happening of an accident (Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]). In order to prevail against a property owner for injuries resulting from a dangerous condition on its premises, it must be established that the owner "failed to diligently remedy the dangerous conditions once it was provided with actual or constructive notice" (Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007]; see also Piacquadio v Recine Realty Corp. 84 NY2d 967 [1994]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Reid v State of New York, 61 AD3d 1063 [3d Dept 2009]). Here, claimant failed to meet this burden. While the Court agrees that birds could potentially pose a risk of harm to inmates in the mess hall, the evidence presented in this case failed to establish that the remedial efforts undertaken by the defendant were inadequate or improper under the circumstances (see Covington v State of New York, 54 AD3d 1137 [3d Dept 2008]). Absent evidence as to the period of time the condition existed and that the remedial efforts undertaken by the defendant were inadequate, the claimant failed to prove defendant's negligence as a matter of law. Accordingly, this cause of action must be dismissed.
Claimant testified that prison officials confiscated his entire program earnings as payment for legal copies, leaving him without money for basic personal care items such as soap and shampoo. Claimant conceded on cross-examination that the defendant took the money to repay monies it had previously advanced him for legal copies. In addition, Exhibit A, Inmate Statements from January 1, 2011 through January 31, 2012, appear to indicate claimant's complaints arise from various debits to his inmate account for advances made by the defendant for postage and legal copies. Absent any evidence indicating that the defendant recouped amounts in excess of what it was owed for copies and postage, this cause of action must be dismissed.
Claimant testified that he was occasionally fondled inappropriately during the course of pat frisks at Great Meadow. He testified that the inappropriate touching was a general occurrence at Great Meadow, although he had no one particular incident in mind. No further evidence was received in support of this cause of action. Such complaints are far to general and vague to establish a cause of action for sexual assault. Accordingly, this cause of action must also be dismissed.
Defendant's objection to the receipt in evidence of Exhibit 4, a newspaper article regarding the incidence of sexual abuse at Great Meadow, is granted on the ground it constitutes inadmissible hearsay.
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Based on the foregoing, the instant claim is dismissed.
All motions not otherwise addressed herein are denied.
Let judgment be entered accordingly.
December 19, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims