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STATE OF NEW YORK COURT OF CLAIMS------------------------------------------------------------X

DELIA DAVILA a/k/a DELGIA DAVILA,Administrator for the Estate of Gloria Bonilla, Claim No.: 119620

Claimant,

-against-

STATE OF NEW YORK, et al.

Defendants.

------------------------------------------------------------X

CLAIMANTS MEMORANDUM OF LAW IN SUPPORT

OF HER MOTION FOR SUMMARY JUDGMENT

FOULKE LAW OFFICES

Attorneys for Claimant25 Main Street, 3rd Floor

Goshen, NY 10924845-294-4308

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STATE OF NEW YORK COURT OF CLAIMS------------------------------------------------------------X

DELIA DAVILA a/k/a DELGIA DAVILA,Administrator for the Estate of Gloria Bonilla, Claim No.: 119620

Claimant,

-against-

STATE OF NEW YORK, et al.

Defendants.

------------------------------------------------------------X

CLAIMANTS MEMORANDUM OF LAW IN SUPPORT

OF HER MOTION FOR SUMMARY JUDGMENT

Plaintiff, by her attorneys, Foulke Law Offices, respectfully submits this Memorandum

of Law, the accompanying Affirmation of Evan M. Foulke dated September 27, 2013 (Foulke Aff.),

the accompanying Affidavit of Douglas Carpenter sworn to on September 26, 2013 (Carpenter Aff.),

and the accompanying Affidavit of Dr. Jamie McAllister sworn to on September 25, 2013 with

accompanying exhibits in support of plaintiffs motion for summary judgment under CPLR 3212.

Preliminary Statement

In the early morning hours of March 21, 2009 a fire destroyed a state run residential

home housing individuals with severe mental retardation and developmental disabilities. Four

residents, including claimant Gloria Bonilla, lost their lives as a result of that fire. A fire alarm was

first activated at approximately 5:25 a.m. Claimant Gloria Bonilla was discovered severely burned but

alive at 8:05 a.m. Immediately after the fire alarm was first activated the two aides on duty removed

Gloria from her room and inexplicably took her to the mudroom in direct violation of the facilitys fire

evacuation plan. The fire evacuation plan required that residents be immediately evacuated through

the closest designated fire exit which was directly adjacent to her bedroom. When Gloria was found

she was moving around under the charred debris of the mudroom where she had been placed and left

by the developmental aides working at the time.

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"

Gloria was evacuated via helicopter. She passed in route to the hospital. At the time of

her death Gloria Bonilla was approximately 44 years of age. She suffered from profound mental

retardation, was unable to care for herself, and lacked any self-preservation skills. The State housed

and cared for Gloria at the Riverview Individualized Residential Alternative (Riverview IRA).

As a result of the March 21, 2009 fire various New York State agencies commenced

Investigations, made fact findings, and issued reports concerning the underlying facts and

circumstances which led to the tragedy. The New York State Office of Fire and Prevention and

Control conducted an independent review of the March 21, 2009 fire and issued an analysis of the

tragedy. (A copy is attached to the Foulke Aff. as Exh. D). A grand jury was also convened and

conducted an eight month investigation concerning the events of March 21, 2009 issuing fact findings

and report dated December 2, 2009. (A copy of the December 2, 2009 grand jury report is attached to

the Foulke Aff. as Exh. E). The Office of Mental Retardation and Developmental Disabilities

(OMRDD) also convened a fire safety panel of state and national experts to conduct its own

comprehensive investigation and analysis of the tragedy. OMRDD issued a written report in January,

2010. This report was produced by the State to the Court for in-camera review in response to an earlier

motion to compel brought by plaintiff. Claimant withdrew that motion after the State admitted the

uncontested and well documented facts contained in the three reports.

As a result of these detailed investigations involving tape recorded interviews of Wells

IRA staff, interrogations of personnel, and review of all relevant and pertinent data, the facts

surrounding the March 21, 2009 incident are well published and are not in dispute. The State has

admitted all of the uncontested facts reflected in these investigative reports. (A copy of the Claimants

Requests to Admit (hereinafter referred to as RTA) is attached to the Foulke Aff. as Exh. F). The

State has conceded and acknowledged all of the underlying facts set forth in this motion. Accordingly,

the facts recited herein may be accepted as an agreed statement of facts.

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Agreed Upon and Uncontested Statement of Facts

Gloria Bonilla

Gloria Bonilla was born on April 17, 1965. (Bonilla Clinical Summary, Foulke Aff.,

Exh. I). She was profoundly mentally retarded and suffered from an intractable seizure disorder.

(Bonilla ISP, Foulke Aff., Exh. H). She was non-verbal but could make some sounds and words

related to her wants and needs. (Foulke Aff., Exh. I). Gloria lacked self-preservation skills and was

unable to care for herself. (Foulke Aff., Exhs. H and I). Gloria was a member of the Willowbrook

class and as such was entitled to certain rights and services guaranteed to her including the express

right to be protected from harm and to be entitled to a safe, clean, and appropriate physical

environment. (See Notice of Rights to Members of Willowbrook Class attached to Foulke Aff. as

Exh. J).

With respect to safety in fire emergencies Glorias Individual Protective Oversight Plan

specifically provided that:

Gloria does not respond to the fire alarm while awake or asleep. She does not have asense of danger. She needs staff assistance/prompting to evacuate and when at the safe

area, needs staff supervision to ensure her safety.

(Attached to Foulke Aff. as Exh. K, para. 10).

The Riverview IRA

The Riverview IRA was a nine bed New York State owned and operated residence for

mentally and physically disabled persons located at 1534 Route 30, Wells, New York in Hamilton

County. The Riverview IRA was administered by the New York State Office of Mental Retardation

and Developmental Disabilities (OMRDD). (RTA #4). The Riverview IRA was operated by the

Sunmount Developmental Disabilities Service Office (Sunmount DDSO). (RTA #6). The

Sunmount DDSO is a division of OMRDD. (RTA #3). Both OMRDD and the Sunmount DDSO are

State agencies. (RTA #1 and #2).

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The Riverview IRA provided homes and care for residents suffering from mental

retardation or developmental disabilities who were not competent to care for themselves. OMRDD

completed construction of the Riverview IRA in May 2008. The Riverview IRA housed nine residents

with developmental disabilities. At the time of the March 21, 2009 fire the Sunmount DDSO

employed Scott D. Scribner and Shirley E. Wolf as developmental aides at the Riverview IRA. (RTA

##7-10). Both Scribner and Wolf were on duty as developmental aides at the Riverview IRA when the

March 21, 2009 fire commenced. (RTA #11). The State is vicariously responsible for any and all

negligent acts or omissions committed at the Riverview IRA by Wolf and Scribner during the course of

their employment.

The Riverview IRA

Fire Evacuation Plan

Both OMRDD policy and Sunmount DDSO policy required that Riverview IRA staff

receive fire safety training before they could begin supporting residents. (RTA #57 and #58). The

Riverview IRA fire evacuation plan clearly established that the prompt and immediate evacuation of

residents was always the first priority in any fire emergency. (RTA #59; fire evacuation plan attached

to Foulke Aff. as Exh. L). The Riverview IRA fire evacuation plan mandated that Scribner and Wolf

immediately evacuate residents through the nearest designated fire exit when the fire alarm sounds.

(RTA #56, #118; Fire Evac. Plan, Exh. L). The Riverview IRA fire evacuation plan provides that in

the event of a fire all staff will immediately evacuate the consumers . . . by the closest exit and go to

the designated area. (RTA #63, Fire Evac. Plan, Exh. L). The fire evacuation plan further states:

Any person discovering a fire will; . . . E Evacuate the building by the closest exit and go to the

designated area. (Fire Evac. Plan, Exh. L).

Both Wolf and Scribner were trained that upon learning of a fire emergency they were

first and foremost responsible to immediately evacuate the residents, including Gloria Bonilla, via the

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%

closest available designated fire exit. (RTA #56, #63). The Riverview IRA fire evacuation plan

provided that in the event of a fire residents were to be immediately evacuated to a designated safe

area located in the left side of the parking lot outside the facility at a point furthest from the building.

(RTA #72).

A Designated Primary Fire

Exit Was Located Directly

Adjacent To Glorias Room

Gloria Bonillas bedroom was located directly adjacent to a designated primary fire

exit. (RTA #70, #71). A schematic/diagram showing the primary fire exits at the Riverview IRA is

part and parcel of the fire evacuation plan and attached to Exh. L to the Foulke Aff. An

authenticated diagram which fairly and accurately depicts the outlay of the building including the

bedrooms is attached to the Foulke Aff. as Exhibit N. (RTA #66, diagram attached as Exh. N).

Gloria Bonillas bedroom, designated bedroom 1 in the diagram (Exh. N), was directly adjacent to

the designated primary fire exit as reflected in the fire evacuation plan diagram. (RTA # 66, #68, #70;

Exh. L).

As set forth in greater detail below, rather than evacuate Ms. Bonilla through the

primary designated fire exit immediately adjacent to her bedroom, Scribner and Wolf took Gloria away

from the fire exit to the mudroom which was located closer to the fire. Scribner and Wolf then left

Gloria in the mudroom where she was found at 8:05 a.m. (RTA #74, #75, #121). The Riverview IRA

staff has not and cannot articulate any suitable explanation why Wolf and Scribner made the decision

to take Gloria to the mudroom rather than evacuate her through the primary designated fire exit next to

her bedroom. (RTA #120).

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Gloria Bonilla Was The First

Resident That Scribner And

Wolf Attempted To Evacuate

Gloria Bonilla was the first resident that Wolf and Scribner attempted to evacuate after

the fire alarm sounded. (RTA #76). The State admits that it had enough time to safely evacuate Ms.

Bonilla out the primary designated fire exit located directly adjacent to her bedroom door if Scribner

and Wolf followed the evacuation procedures. (RTA # 78). But rather than evacuate her to the

designated safe area in the parking lot, Scribner and Wolf inexplicably moved Gloria to the mudroom

and then left her there. (RTA #72, #73, #74, #120).

The March 21, 2009 Fire

On March 21, 2009 at 5:25:55 a.m. an automatic fire alarm sounded at the Riverview

IRA. (RTA # 18). At the time the fire alarm sounded Wolf and Scribner were fully aware that the

back porch was engulfed in flames and they needed to evacuate. (RTA #77). Wolf and Scribner were

the only two Riverview IRA staff members on duty and were working the 11:30 p.m. to 7:30 a.m.

shift. (RTA #17). After the fire alarm sounded the first thing Scribner and Wolf did was to go down

the hallway and get Gloria Bonilla out of bed. (RTA #76). At the time the Riverview IRA staff moved

Gloria to the mudroom they were well aware that the Riverview IRA was on fire and that it was a fire

emergency. (RTA #77).

The State admits that the Riverview IRA staff had enough time to safely evacuate Ms.

Bonilla via the closest available fire exit directly adjacent to her bedroom door if they had followed the

fire evacuation plan in effect. (RTA #78). After bringing Ms. Bonilla to the mudroom (RTA #75)

Wolf and Scribner then tried to fight the fire with a fire extinguisher prior to evacuating any residents

including Ms. Bonilla who has been placed in the mudroom. (RTA #61). Wolf and Scribner left Ms.

Bonilla in the mudroom and attempted to fight the fire with a fire extinguisher notwithstanding that

they had been trained that attempts to extinguish a fire should only be taken after residents had been

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(

was never conducted. (RTA #96). Sunmount DDSO only employed two members on the weekend

night shift. (RTA #98). When conducting fire evacuation drills prior to March 21, 2009 on the

overnight shift one of the three following scenarios would occur:

(a) two staff on duty would simulate waking the residents and taking them tothe exit, in this scenario the residents were not awakened and the

Riverview IRA staff would estimate the amount of time it would take toget the particular resident out of bed and the residents were not in fact

evacuated;

(b) drills would be conducted at prearranged times when the Riverview IRAnight shift would normally get residents out of bed and these drills did

not also not include a full evacuation;

(c)

a drill was conducted after 5:00 a.m. when part-time workers wouldarrive and when residents were being awakened to begin their daily

activities thereby allowing additional staff to assist in the evacuation.

(RTA #95).

The Riverview IRA night shift including Scribner and Wolf never actually evacuated

residents in drill or practice as required. (RTA #99). When fire drills were simulated as described

above staff would simply pretend to walk residents to the mudroom rather than evacuate them through

the closest fire exit as required by the fire evacuation plan. (RTA #100). Neither the Sunmount DDSO

nor OMRDD conducted any fire drills with the Riverview IRA staff. (RTA #103-105). OMRDD and

Sunmount DDSO required that the Riverview IRA staff received fire safety training before they could

begin supporting residents. (RTA #57, #58). That training was limited to a 90 minute course. (RTA

##103-105). The training received by the Riverview IRA staff required that the evacuation of residents

is always the first priority in a fire emergency. (RTA #59).

The Riverview IRA staff was also trained that only after residents have been evacuated

should efforts to extinguish a fire be taken. (RTA #60). Oversight of fire safety training for the

Riverview IRA staff was assigned to an OMRDD quality of care personnel who had no specialized

training in fire safety and prevention. (RTA #114). Oversight of the fire safety practices at the

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)

Riverview IRA including staff training, record keeping, realistic drills, and evacuation procedures were

inadequate to prepare the Riverview IRA night shift to evacuate residents in the event of a real fire

such as what occurred on March 21, 2009. (RTA #116). After the various investigations commenced

concerning the March 21, 2009 fire, the Riverview IRA staff falsified fire drill records to reflect that

fire drills were conducted when in truth they were not. (RTA ##106-107).

The Staffs Attempt To Fight The

Fire With A Fire Extinguisher

Rather Than First Evacuate Residents

After Wolf and Scribner commenced evacuation by bringing and leaving Ms. Bonilla in

the mudroom, they then attempted to use a fire extinguisher to fight the fire. (RTA #31 and 32). Wolf

and Scribners attempted use of the fire extinguisher violated OMRDD fire safety training policy.

(RTA #34). The Sunmount DDSO employed the R.A.C.E. principle as its fire emergency procedures

in the event of a fire. (RTA #62). Wolf and Scribners attempt to fight the fire with a fire extinguisher

prior to evacuation of residents violated the R.A.C.E. principle. (RTA #63). The Riverview IRA

staffs attempt to use a fire extinguisher to fight the fire resulted in a delay in evacuation of residents

and specifically a delay in evacuating Gloria Bonilla. (RTA #33).

OMRDD Required That In The Event Of A

Fire Alarm The Alarm Monitoring

Company First Call The Site To Verify An

Actual Emergency Prior To Dispatch Of An

Emergency Signal To The Local Fire Department

In Violation Of The New York State Fire Code

Prior to the March 21, 2009 fire OMRDD, acting by and through Sunmount DDSO, had

contracted with Albany Protective Services to provide fire alarm monitoring services. (A copy of

OMRDDs contract with Albany Protective Services is attached to the Foulke Aff. as Exh. O).

OMRDD specifically required that in the event of a fire alarm that the monitoring station would first

contact the originating site to verify an emergency prior to dispatch of the alarm signal to the local fire

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department. (RTA #19; Alarm Monitoring Contract, Appendix B, Section 1.4 attached to Foulke Aff.

as Exh. O). Specifically 1.4 of the Alarm Monitoring Contract provides as follows:

1.4 In the event an alarm or trouble signal occurs the monitoring

station will contact the originating site for verification. If there isno response, or if incorrect verification code is given, contractorwill call and dispatch the fire department listed for that site.

(Alarm Monitoring Contract, Appendix B, Section 1.4).

OMRDDs requirement that Albany Protective Services first attempt to contact the

facility of alarm origin rather than immediately reporting an emergency to a local fire department was

a flagrant violation of Section 401.3 of the Fire Code of New York State. (RTA #26). Section 401.3

of the Fire Code of New York State specifically provides that the procedure for alarms such as that

which was activated at 5:25:55 a.m. is for the alarm monitoring company to first notify the local fire

department and then make the call to the facility for which the alarm was activated. (RTA #27).

The Riverview IRA fire alarm monitoring system was activated and a signal received

by Albany Protective Services at 5:25:55 a.m. on March 21, 2009. (RTA #18). More than three

minutes later and at 5:28:30 a.m. either Wolf or Scribner answered a phone call from an Albany

Protective Services alarm operator concerning the signal. (RTA #22). The contractual requirement

which required Albany Protective Services first call and speak with a Riverview IRA staff member to

confirm an emergency resulted in a three minute and three second delay in the transmission of the fire

alarm to the local Wells Fire Department. (RTA #25). The State admits that OMRDDs flagrant

violation of Section 401.3 of the Fire Code of New York State resulted in at least a three minute delay

in notification to the local Wells Fire Department of the fire. (RTA ##27-29). The State admits that

this verification procedure resulted in the delay in the evacuation of Gloria Bonilla. (RTA #24, #30).

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Wells Assistant Chief Kenneth

Hoffmans Response Was Delayed

By Three Minutes and Three Seconds

Kenneth Hoffman was the Assistant Chief of the Wells Volunteer Fire Department on

March 21, 2009. (RTA #36). At the time the fire commenced he was at home in his residence which

was located directly across the street from the Riverview IRA. (RTA #37). Assistant Chief Hoffman

first learned of the fire after being notified by the Hamilton County fire dispatcher. (RTA #39).

Immediately upon receipt of the dispatch Kenneth Hoffman ran across the street to the Riverview IRA

where he started to assist Wolf and Scribner with the evacuation of residents. (RTA ##44-45).

Assistant Chief Hoffman arrived at the Riverview IRA within three minutes of the 5:28:30 a.m. radio

dispatch notifying him of a fire emergency at the Riverview IRA. (RTA ##43-44).

When Assistant Chief Hoffman reached the mudroom entrance door none of the

residents had yet to be evacuated outside of the building. (RTA #47). Assistant Chief Hoffman, Wolf,

and Scribner were able to evacuate four residents from the burning building. Gloria Bonilla was never

evacuated from the mudroom where she had been placed and left by Wolf and Scribner. (RTA #49).

After evacuating four residents from the building Gloria Bonilla was still in the mudroom where she

had been left. (RTA #50 and #51). After evacuating four of the residents Assistant Chief Hoffman

determined that it was too big a risk to re-enter the building to attempt to save anymore residents

including Ms. Bonilla. (RTA #53 and #54).

Gloria Was Found at 8:05 a.m.

In The Mudroom Where Scribner

And Wolf Had Placed Her

At approximately 8:05 a.m., after the fire was brought under control, Gloria Bonilla was

discovered in the burning debris of the mudroom still alive (RTA #55) when one of the Wells Fire

Department firefighters noticed Gloria moving under some debris. (RTA #121). After she was pulled

from the mudroom she was immediately placed on a helicopter and medevacked. She was pronounced

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dead at the emergency room at Nathan Littauer Hospital at 9:53 a.m. The autopsy found that she had

suffered extensive first and second degree burns throughout her body. (A copy of the autopsy report is

attached to the Foulke Aff. as Exh. P). Dr. Jamie McAllister, a forensic toxicologist, has determined

with a reasonable degree of certainty that there is no doubt, in light of her review of relevant medical

records, that Ms. Bonilla suffered conscious pain and suffering prior to her expiration.

There can be no doubt that the Riverview IRA staff on duty on March 21, 2009

committed multiple departures from the Riverview IRA fire evacuation plan, their fire safety training,

as well as departures from well-established accepted standards of care. Each departure was a

substantial factor in causing injuries to Ms. Bonilla.

ARGUMENT

Claimant Is Entitled To Judgment As A Matter

Of Law And Defendant Cannot Show Any Issues

Of Material Fact Which Would Warrant A Trial

To obtain summary judgment it is necessary that the movant establish his cause of

action . . . sufficiently to warrant the court as a matter of law in directing judgment in his favor.

Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562 (1980) (citing CPLR 3212(b)). To defeat a motion for

summary judgment the opposing party must produce evidentiary proof in admissible form sufficient to

require a trial of material questions of fact on which he rests his defense. Id. Where, as here, a

defendant cannot raise a material issue of fact as to whether plaintiffs injuries were causally related to

a failure to exercise reasonable care, courts routinely grant plaintiffs summary judgment as a matter of

law. See Ortiz v. Lynch, 105 A.D.3d 584 (1stDept 2013) (plaintiff entitled to summary judgment

where testimony relied on by defendant in support of defendants theory that plaintiff was

comparatively negligent failed to raise an issue of fact); Gill v. Braasch, 100 A.D.3d 1415 (4th

Dept

2012) (plaintiff entitled to summary judgment where plaintiffs met their initial burden of establishing

as a matter of law that the sole proximate cause of the accident was defendants negligence in, inter

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*#

alia, backing up his pickup truck into plaintiff without properly looking behind him); Catarino v.

State of New York, 55 A.D.3d 467, 468 (1stDept 2008) (Court of Claims properly granted summary

judgment to plaintiff in construction site accident where contractor violated the industrial code and

the State failed to present evidentiary proof sufficient to present a triable issue of fact in response to

claimantsprima faciedemonstration of entitlement to judgment as a matter of law).*

In Dawn v. New York, 47 A.D.3d 1048 (3d Dept 2008) the claimant, an autistic and

mentally retarded woman, brought suit against a residential facility operated by the State for

individuals with developmental disabilities. The claimant was sexually assaulted by other residents on

two separate occasions. Id. at p. 1049. The facilitys safety plans required that a staff member keeps

[the residents] within sight unless they were in their own rooms, at which point a door alarm was to be

set. Id. at p. 1050. Facility policy required staff to check the residents room any time a door alarm

sounded. Id. at p. 1049. The Court of Claims dismissed claimants suit after a trial on liability. The

Third Department reversed finding that claimant was entitled to a partial finding of liability against the

State and was entitled to a judgment as a matter of law. Id. p. 1051. In reaching its decision the Third

Department reasoned that:

Defendant was under a duty to exercise reasonable care to protectmentally disabled patients at its facilities and prevent them from being

harmed (see, Harris v. State of New York, 117 A.D.2d 298, 303 (1986)).Operators of medical and residential facilities have a duty to safeguard

patients and residents, even from injuries inflicted by third parties,measured by the capacity of the patient [or resident] to provide for his or

her own safety. (N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 252 (2002)).The degree of reasonable care owed to such individuals is measured by

,See, also, Limardi v. McCleod, 100 A.D.3d 1375 (4

thDept 2012) (plaintiff entitled to summary judgment where plaintiff

met his initial burden . . . of establishing that defendant was negligent as a matter of law and that her negligence was the

sole proximate cause of the accident); Socci v. Levy, 90 A.D.3d 1020 (2d Dept 2011) (plaintiff entitled to summary

judgment where evidence submitted by plaintiff established,prima facie, that the sole proximate cause of the accident was

Levys failure to yield to the right-of-way of the plaintiffs motorcycle (citations omitted)); Waltz v. Vink, 78 A.D.3d1621 (4

thDept 2010) (plaintiff entitled to summary judgment where plaintiff established as a matter of law that defendant

was negligent in failing to see plaintiffs motorcycle when it was crossing in front of him); Pomietlasz v. Smith, 31 A.D.3d

1173, 1174 (4th

Dept 2006) (plaintiffs motion for summary judgment should be granted where there is no genuine issue

to be resolved at trial (citations omitted)).

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the patients physical and mental ailments as known to the hospital (orfacility) officials, physicians and employees. (citations omitted).

Id. at p. 1050. In finding for claimant as a matter of law, the court relied heavily on the fact that the

facility had breached its own safety plans and the extreme vulnerability of the claimant. Id. at p. 1051.

Moreover, the Third Department found that although the State may not have been aware that a sexual

assault was likely to occur if residents were left unsupervised, it was forseeable that a resident could

engage in some type of physical assault against another resident if the enacted safety plans were not

adhered to. Id. at p. 1051 (citations omitted). Accordingly, the Third Department determined as a

matter of law that defendant breached the duty of care by failing to properly supervise claimant and

other residents who could harm her. Id. In this case the State clearly breached its own safety plan and

it was certainly foreseeable that if that plan was not followed residents could be harmed. As in Dawn,

in this case claimant is also entitled to judgment as a matter of law.

To prove aprima faciecase of negligence, a plaintiff must demonstrate the existence

of a duty of care owed to the plaintiff, a breach of that duty, and that the breach of such duty was a

proximate cause of his or her injuries. Miglino v. Bally, Inc., 92 A.D.3d 148 (2d Dept 2011)

(citations omitted). See also, Akins v. Glens Falls City School Dist., 53 N.Y.2d 325 (1981); Gordon v.

Muchnick, 180 A.D.2d 715 (2d Dept 1992) (the plaintiff must establish the existence of a duty on the

defendants part to the plaintiff, the breach of the duty, and that the breach of duty was a proximate

cause of the injury to the plaintiff).

A. The State Owed Gloria Bonilla A Duty

Of Reasonable Care As A Matter Of Law

The State is required to exercise reasonable care in restraining, supervising and

protecting mentally deficient persons to prevent injury to themselves and others. Comiskey v. State,

71 A.D.2d 699 (3d Dept 1979). See, Killeen v. State, 66 N.Y.2d 850, 851 (1985) (the State owes

patients in its institutions a duty of reasonable care to protect them from injury, whatever the source);

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Harris v. State of New York, 117 A.D.2d 298 (2d Dept 1986) (the State will be held directly liable for

injuries sustained by a mentally disabled individual while a resident at is state-certified family care

home); Maldonado v. State of New York, 210 N.Y. Slip. Op. 51023 (U) (Ct. of Claims 5-20-2010) (the

State owes a duty to a mentally disabled patient of the Brooklyn Developmental Center which was

operated by the State Office of Mental Retardation and Development Disability); Warley v. Grampp,

213 N.Y. Slip Op. 04080 (3d Dept 6-6-2013) (public agency providing various services to

developmentally disabled individuals including an adult with mental retardation owes a duty to that

individual to exercise reasonable care); Campbell v. Cluster Housing Ded. Fund Co., 247 A.D.2d 353

(2d Dept 1998) (public entity which provided transitional residential care for mentally disabled

persons owed a duty of reasonable care to protect mentally ill residents from injury).*

It is well settled that where the state engaged in a proprietary function such as

providing medical and psychiatric care, it is held to the same duty of care as private individuals and

institutions engaged in the same activity. Rattray v. State, 223 A.D.2d 356, 357 (1stDept 1996)

(State hospital negligent for allowing voluntary mental patient unsupervised access to unguarded

window where patient had history of escaping and did escape and did assault others). The provision of

mental health services is a proprietary function where the State will be held liable for the consequences

of a breach of the duty of care to its patients. See, DAvolio v. Prado, 277 A.D.2d 877 (4th

Dept

2000). It is well settled that where the State has undertaken the complete care, custody, and control of

claimant . . . who is completely dependent and totally reliant upon his warders, . . . the State will be

responsible for breaches of its duty of care to the claimant. Quackenbush v. State of N.Y., 29 Misc.3d

,OMRDDs duty stems from the fact that its employees had physical custody and control over Gloria. See, Mirand v. City

of New York, 84 N.Y. 2d 44, 49 (1994) (a schools duty of reasonable care to its students derives from the simple fact that

a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians).

Pratt v. Robinson 39 N.Y.2d 554, 560 (1976) (duty owed by a school to its students stems from the fact of physical

custody and control over those students while they are in the schools charge); Bodaness v. Staten Island Aid, Inc., 170A.D.2d 637, 638 (2d Dept 1991) (OMRDDs duty to mentally retarded adults at its facility in Staten Island is derived from

a co-extensive and concomitant to its fiscal custody and control over the [persons]). See, also, Sanchez v. State of New

York, 99 N.Y.2d 247, 252 (2002) (having assumed physical custody of inmates, who cannot protect and defend

themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates . . .).

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state operator of a residential facility will not be relieved of liability for its negligence even when the

plaintiffs own acts constituted an intervening cause of the accident where the intervening act was set

in motion by the defendants own wrongful acts. Campbell, 247 A.D.2d at p. 354.

There is no question that the State owed Gloria Bonilla a duty of reasonable care in this

case. Gloria Bonilla was profoundly mentally retarded, non-verbal, and lacked any self-preservation

skills. (Foulke Aff., Exhs. G, H, I, J, K). Glorias ISP specifically noted that she does not

have a sense of danger. She needs staff assistance/prompting to evacuate and when at the safe area,

needs staff supervision to ensure her safety. (ISP attached to Foulke Aff. as Exh. H). Additionally,

as a member of the Willowbrook class Gloria was specifically entitled to and expressly guaranteed the

right to be protected from harm. (Notice of Rights to Members of Willowbrook Class attached to

Foulke Aff. as Exh. J). In this case the defendant, through its agencies OMRDD and Sunmount

DDSO owed a duty to exercise reasonable care to Gloria Bonilla.

B. The State Breached Its Duty Of

Reasonable Care To Ms. Bonilla

The uncontested factual record as reflected in Plaintiffs Request to Admit clearly

establishes as a matter of law multiple breaches and departures from the standard of care. OMRDD

and the Sunmount DDSO are State agencies who administered and operated the Riverview IRA. (RTA

#1-6). OMRDD and Sunmount DDSO employed Wolf and Scribner as developmental aids. (RTA #7-

10). Wolf and Scribner were the only two staff members assigned and working at the Riverview IRA

during the 11:30 p.m. to 7:30 a.m. shift when the March 21, 2009 fire commenced. (RTA #17). The

State was vicariously responsible for the negligent acts and omissions committed by Wolf and Scribner

during the course of their employment on March 21, 2009. (RTA #16). See, Holland v. City of

Poughkeepsie, 90 A.D.3d 841, 844 (2d Dept 2011) (a municipality may be held vicariously liable for

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torts committed by its employees while acting within the scope of his or her employment) (citations

omitted).

In this case the State is vicariously liable for Wolf and Scribners uncontested and well

documented departures from the standard of care and from the Riverview IRAs fire evacuation plan.

Among other things, it is uncontested and conceded that the State departed from the standard of care

by and through the following acts:

Wolf and Scribner failed to fulfill their first and foremost duty in the event of a

fire to immediately evacuate the residents via the closest available designated

fire exit to the designated safe area located on the left side of the parking lot at a

point furthest from the building. (RTA #71-72). Wolf and Scribner

inexplicably moved Gloria to the mudroom closer to the fire rather than the

immediately available fire exit immediately adjacent to her room. (RTA #66-

75, 120). The failure to immediately evacuate Ms. Bonilla was a violation of the

Riverview IRA fire evacuation plan and the standard of care. (RTA #64;

Carpenter Aff.);

The State failed to adequately plan and drill for a fire emergency at Riverview

IRA. (RTA ##93-107). The Riverview IRA night shift fire drills did not

actually practice or simulate an actual evacuation. (RTA #96). The Riverview

IRA night shift, including Scribner and Wolf, never evacuated residents in drill

or practice despite that they were required to participate in fire drills every

month. (RTA #93, #95, and #99). In conducting fire drills the Riverview IRA

staff would pretend to wake residents and walk them to an area near the

mudroom or within the mudroom rather than to the closest designated fire exit

as required by the fire evacuation plan. (RTA #100). In the grand jurys

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approximately three minutes and three seconds. (RTA ##24-25). The Grand

Jury Report found that [i]t is inescapable that the procedure employed on

March 21, 2009 resulted in delay not only in the dispatch of the Fire Department

but in the evacuation of the residents . . .. (Grand Jury Report, Exh. E, p. 13).

The grand jury also concluded that the procedure was a violation of the fire

code. (Id. at p. 11);

Riverview IRA staff members smoked at the facility despite it being prohibited.

(RTA ##81-90). Wolf and Scribner were smokers and regularly smoked on the

screened porch where the fire commenced. (RTA ##83-86). The fire started in

a green trash can on the screened porch where Wolf and Scribner smoked.

(RTA #85, 108). None of the residents smoked and they were all asleep. (RTA

#80, #81). The New York State Office of Fire Prevention and Control

concluded the origin and cause of the fire was human intervention and that

someone did something to introduce the source of the ignition to the trash

receptacle on the screened porch. (RTA ##109-110);

After leaving Ms. Bonilla in the mudroom Wolf and Scribner attempted to fight

the fire with a fire extinguisher. (RTA #31, 32). Wolf and Scribners attempt to

utilize a fire extinguisher prior to evacuation of residents violated their training

as well as the R.A.C.E. principle employed by Sunmount by DDSO. (RTA #34,

#62, #63). The Riverview IRA staffs attempts to use a fire extinguisher

resulted in the delay of the evacuation of Gloria Bonilla. (RTA #33).

Additionally, there is no issue of comparable fault in this case since [t]he degree of

reasonable care is measured by the plaintiffs physical and mental infirmities, as known by the

defendants. Campbell v. Cluster Housing Ded. Fund Co., 247 A.D.2d 353 (2d Dept 1998). The

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State admits that Ms. Bonilla lacked self-preservation skills and that it was reasonable foreseeable

prior to March 21, 2009 that evacuating Gloria Bonilla in the event of a fire emergency would present

a very significant challenge in light of her lack of self-preservations skills. (RTA # 112). Because the

degree of care owed is commensurate with the patients ability to provide for her own safety there can

be no issue of comparative fault here. See, Killeen v. State, 66 N.Y.2d 850, 851 (1985). It is

unquestionable that the State breached the duty of reasonable care owed to Ms. Bonilla as a matter of

law.

C. The States Breaches Of Its Duty Of

Care Were Unquestionably A Proximate

Cause Of Ms. Bonillas Injuries

To show proximate cause of the injuries suffered, the claimants burden is to show that

the States conduct was a substantial causative factor in the sequence of events which led to [the

claimants] injuries. Harris v. State of New York, 117 A.D.2d 298 (2d Dept 1986). The burden is

only to show that the States conduct was a substantial factor and such a showing need not be made

with absolute certainty or exclude every other possible cause of the injury. Id. [T]here may be more

than one proximate cause of an accident. Scala v. Scala, 31 A.D.3d 423, 424-25 (2d Dept 2006)

(citations omitted). To establish proximate cause, claimant must show that it was reasonably

foreseeable that an injury could occur but need not demonstrate that the precise or exact manner in

which the [incident] occurred was foreseeable or could be anticipated. Dawn v. New York, 47

A.D.3d at p. 1051 (citations omitted). As in Dawn, although the State here may not have been aware

that a fire event was likely to occur, it was certainly foreseeable that it could. Id.

In this case there can be no doubt that the States conduct was a proximate cause of Ms.

Bonillas injuries. (RTA #94-96, 99). The State has acknowledged that Gloria Bonilla was not

evacuated via the closest available exit. (RTA #119). The State has acknowledged that Gloria Bonilla

was the first resident that Wolf and Scribner attempted to evacuate. (RTA #76). The State concedes

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that Wolf and Scribner did not evacuate Bonilla as required but rather inexplicably moved her to the

mudroom. (RTA #119, #120). The State concedes that Gloria Bonilla was discovered alive nearly

three hours later moving around underneath the charred debris and remains of the mudroom. (RTA

#121). Clearly, the failure to properly evacuate Ms. Bonilla and the inexplicable conduct in moving

her to the mudroom where she suffered was unquestionably a causative substantive factor of her

injures.

The States requirement that Albany Protective Services first confirm a fire emergency

at the Riverview IRA prior to alerting the local fire department unquestionably resulted in a three

minute and three second delay in Kenneth Hoffmans arrival at the scene. (RTA # 25). Assistant

Chief Hoffman lived directly across the street from the Riverview IRA and responded immediately

after receiving the dispatch from the Hamilton County fire dispatcher. (RTA #36-41). In spite of the

precious three minutes that were lost, Mr. Hoffman was able to help evacuate four residents out and

away from the building. (RTA #48). After evacuating the four residents Gloria Bonilla was still

located in the mudroom where she had been placed and left by Wolf and Scribner. (RTA #51). It was

only in attempting to return to get Gloria that Hoffman determined it was too great a risk to re-enter the

building. (RTA #52-53). Certainly, it cannot be credibly contested that if Hoffman had arrived

approximately three minutes earlier Ms. Bonilla would have been safely evacuated.

Lastly, Wolf and Scribners refusal to adhere to the ban on smoking at the Riverview

IRA was also unquestionably a substantial causative factor in commencement of the March 21, 2009

fire. It is well documented that none of the residents at the Riverview IRA smoked. (RTA #81). The

State concedes that smoking was prohibited at the Riverview IRA including the screened porch where

Wolf and Scribner regularly smoked. (RTA #82, 84, and 86). The State concedes that the origin and

cause of the fire was human intervention when someone introduced the source of the ignition to a trash

receptacle on the screened porch. (RTA #108-110). The State cannot credibly contend that its refusal

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to enforce the ban on smoking at the Riverview IRA by its employees was not a substantive factor in

causing the March 21, 2009 fire.

CONCLUSION

For all of the foregoing reasons it is respectfully requested that this Court issue a

decision and order awarding summary judgment on liability and schedule a conference concerning

discovery on the issue of damages.

Dated: Goshen, New YorkSeptember 27, 2013

FOULKE LAW OFFICES

By: Evan M. Foulke, Esq.

Attorneys for Claimant25 Main Street, 3rd Floor

Goshen, NY 10924845-294-4308