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COURT OF CLAIMS OF NEW YORK Claim No. 46982 1968.NY.43488 <>; 294 N.Y.S.2d 966; 58 Misc. 2d 241 November 14, 1968 RODOLFO VALLELONGA, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Harry K. Ebenstein and George P. Ziegler for claimant. Louis J. Lefkowitz, Attorney-General (Albert O. Marston of counsel), for defendant. Caroline K. Simon, J. Author: Simon

Caroline K. Simon, J.

Author: Simon

 The New York State Psychiatric Institute, located in the upper West Side of Manhattan, is a hospital facility owned and operated by the New York State Department of Mental Hygiene. It is located in a large building used for research and teaching in the field of psychiatry. The building contains a variety of functional rooms and equipment including laboratories.

On July 8, 1966 at about 1:30 p.m. Mr. Vallelonga, a New York City Sanitation Department employee, then in his late thirties, was assigned to a garbage truck as part of a crew of three men. He testified that twice a week the truck would back up to the loading platform of the Institute's garage entrance preparatory to emptying its cans of refuse into the loading hopper at the rear of the truck. He had been going to the Institute twice a week for about five years before the accident date.

As he lifted one of the galvanized cans in the usual way, wearing the leather gloves required by departmental rules, claimant testified that a gallon bottle labeled "Sulphuric Acid" fell from the top of the can and dropped to the floor. Mr. Vallelonga stated that he felt a burning sensation in his left arm and leg. He dropped the can of refuse, bent down to take off his shoe and noticed that his pants were going "up in smoke". His fellow workers carried him into the building to a sink where running water was applied to the areas of contact. A doctor was called and he was taken to Presbyterian Hospital for treatment.

A claim for damages resulting from these injuries was timely filed with the Clerk of the Court of Claims and in the office of the Attorney-General. It alleges negligence of the employees of the Institute as the cause of the injuries and seeks $25,000 in damages for pain and suffering, disability, medical expenses and loss of services. The claim was neither assigned nor brought before another tribunal.

One of the sanitation team working with claimant heard the crash and ran to claimant's assistance. He testified at the trial to seeing claimant's pants smoldering and that he picked up the gallon-size plastic bottle with "Sulphuric Acid" marked on the label. The bottle was placed in a box for safekeeping at the garage. Claimant testified that it remained there for about a year and then, when claimant "looked for it, it was gone". It was not produced at the trial, its present whereabouts being stated to be unknown.

In an examination before trial, an employee of the Institute who had worked there for 19 years as a power plant helper in the incinerator department, stated that his duties included collecting refuse packed in boxes and bringing it down to the basement to burn it in the incinerator. He explained that "wet garbage" included food from the kitchen and jars and bottles from the medical and laboratory areas. Such material is set aside and either wrapped in paper bundles if small, or, if large sized, dumped into large garbage cans. The "wet" garbage is not brought to the incinerator but is taken in cans to the disposal area to await the arrival of the city's garbage trucks.

He stated that the rules and regulations were interpreted at regular monthly staff meetings. The regulations require that the bottles and jars that cannot be wrapped be placed separately in large cans which are left open so that the material can be seen. He added that he never had observed acid left in bottles in these cans. His duties included washing out the empty garbage cans.

In another examination before trial, a stationary engineer also employed by the Institute and in complete charge of maintenance there, confirmed that regular meetings of his personnel took place either once a month or once in two months to discuss procedures. He explained that the building had either two or three laboratories, and that each was equipped with an "acid line", which he described as a pipe made of "duron" which he said was impervious to acid. He said these acid lines had been installed years ago, and were in good condition at the time of the accident. The lines led directly to the main sewers and were built expressly for handling acid refuse.

Although he knew of no written regulations, he felt certain that they must have been in existence, and knew that it was an unwritten law of the Institute not to dispose of acids in any other manner than by use of the acid lines, and that this procedure had often been stressed at the regular staff meetings he conducted. He said that he would inspect the street-level garbage storage area whenever special items such as mattresses were set out for pickup, but that he did not inspect that area on a regular basis, nor did he recall inspecting the area immediately preceding the date of the accident. It was stipulated at the trial that wet garbage was stored within the Institute building and behind the building's doors.

The rules of the State Hospital Code expressly require that "Hospital systems shall be operated so that all sewage and other liquid wastes are disposed of by connection to a public sewer system or by an alternate method, in either event, as approved by the department." (10 NYCRR 702.2 [b].) In the instant matter the acid line was the method in use.

In a stipulation entered into by the parties on January 31, 1968 and introduced as claimant's Exhibit 9, Mr. Vallelonga's injuries were established to be as follows: "Third degree burn of left lower calf, with permanent scar but with no limitation of motion or use. First degree burn of left fingertips and wrist, healed. Second degree burn of left forearm, healed." It was also stipulated that the reasonable value of the hospital services to claimant was $91.90 and that his period of disability extended from July 8 to August 3, 1966.

Claimant testified that he visited his own physician at least twice a week during the five weeks he was unable to work. He said the blisters on his hand and fingers healed and disappeared, although he still experiences some pain there, as well as in the scarred area of his leg. The court observed the leg scar which is approximately 3 1/2 inches long and 3/4 of an inch wide and is in an area covered when wearing street clothes.

Under section 8 of the Court of Claims Act the State has waived its immunity from liability for the acts and omissions of its employees. In the operation and maintenance of its institutions the State is responsible only for hazards reasonably to be foreseen and for risks ...

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