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An inmate at the Arthur Kill Correctional Facility fractured his finger when he fell off his upper bunk bed. Although an attending physician, Dr. Francois Thebaud, treated the injury and purportedly issued a medical order directing that the inmate be transferred to a lower bunk, that order was not implemented and, some three days later, the inmate again fell out of his upper bunk and was seriously injured.
In a personal-injury lawsuit filed with the New York State Court of Claims, Wesley Anthony Levin asserted that the state had been negligent in failing to transfer him to a lower bunk immediately after his first fall. At trial, Mr. Levin testified that, on the morning of March 11, 2000, he felt "kind of disoriented" and fell from the upper bunk. He further claimed that shortly after that incident, he informed the facility's medical personnel that the accident had been triggered by a seizure, and that his second fall, on March 14, 2000, had also been seizure related.
Dr. Thebaud testified that Levin had initially claimed to have suffered from "dizziness," and that the inmate only "thought" he had experienced a seizure. According to the doctor, Levin's medical records did not reflect a history of seizure disorders (nor treatment for such a condition). He further asserted that his order directing Levin's reassignment to a lower bunk was in response to the fractured finger and the difficulty Levin would have in climbing to the upper bunk as a result of his injury, but that there had been no urgency to the order's implementation.
Finding that the injuries incurred as a result of the second fall were not "reasonably foreseeable," the Court of Claims found in the state's favor and dismissed Levin's case. On appeal, the Appellate Division, Second Department affirmed. While acknowledging that the state owes a duty to provide for an inmate's "health and care," that obligation only extends to "reasonably foreseeable" risks. In its decision, the appellate court concluded that the following factors impeded the "foreseeability" of this particular incident:

Although Arthur Kill had an explicit policy to assign lower bunks to inmates suffering from seizures, the Court of Claims determined, on the basis of its assessment of the credibility of the witnesses, that the claimant did not persuasively demonstrate before the second accident that a seizure had caused his first accident, that he generally suffered from seizure disorders, or that he needed to be placed in a lower bunk immediately in order to minimize the danger of future seizures. The Court of Claims thus properly determined that it was not reasonably foreseeable that the claimant would again fall out of an upper bunk so soon after his first accident, or that he would fall as a consequence of a seizure.
We beg to differ.
As Justice Goldstein noted in a dissent:
It is apparent from the claimant's medical records that it was reasonably foreseeable that the claimant would suffer a seizure. Further, it is clear from the record that allowing the claimant to remain in an upper bunk violated the defendant's own practice and procedures and the directives of its own medical personnel.
The existence of the policy to assign lower bunks to inmates suffering from seizures is proof that the defendant actually anticipated the risk of injury.
Since defendant violated its own practices and procedures which were designed to avoid foreseeable harm, the determination in defendant's favor was not supported by the evidence.
We can't wait to see how our state's highest court decides this one. Will the AD's findings as to lack of foreseeability be debunked? Only time will tell.
For a copy of the Appellate Division's decision in Levin v. State of New York, please click on the following link: