OPINION ISSUED NOVEMBER 25, 1987
JAMES E. MILLER, JR.
DEPARTMENT OF CORRECTIONS
Jeffrey W. McCamic, Attorney at Law, for claimant.
John Polak, Assistant Attorney General, for respondent.
Claimant James E. Miller, Jr., brought this action to recover
for injuries he received in
a fall at the West Virginia Penitentiary in Moundsville, West
Claimant alleges that
respondent was negligent in allowing excess garbage to flow onto
dining room floor posing a
hazard to those individuals using the dining facility at the
Respondent contends that claimant was aware of the condition of
on the floor and that
claimant was negligent when he walked through the area. Respondent
contends that surgical
procedures were available to claimant to correct the injury to his
while he was still
incarcerated at the West Virginia Penitentiary or at Huttonsville
Correctional Facility and,
therefore, claimant may not now recover for medical expenses, loss
wages, and pain and
suffering when he declined to have the surgery while in the custody
Claimant was incarcerated at the West Virginia Penitentiary from
1981, until July, 1984.
In 1983, claimant had surgery for a back injury which he had
while lifting weights in a
contest at the Penitentiary. Two discs were crushed in the incident.
Claimant had surgery to
repair the discs. After two weeks in the hospital, claimant
the infirmary at the
Penitentiary on August 2, 1983. Approximately a week later on
1983, claimant was
required to walk from the infirmary to the dining facility to eat
meals. Claimant proceeded to
the dining facility for his lunch. As he was leaving the dining
through the only exit area, he
dumped the remains on his tray into a garbage can placed for that
purpose. As he proceeded to
exit from the dining room he was speaking to a guard. At that
slipped on a slice of
pickle and ended up on his back on the floor. There as debris in
and liquid form on the
floor of the dining facility at the exit area from the garbage can
the exit door for several feet.
Claimant testified that he walked around most of the debris.
stated that "... you
couldn't walk around the juice. There was just a string of it
just a pool of it all the way
down the hall."
As a result of this fall, claimant suffered another back injury
which he was hospitalized at
Reynolds Memorial Hospital. While there as a patient, he was given
scan and a
myelogram which revealed that he had a slipped disc and a pinched
This disc was the
same one for which claimant had received surgery and for which he
further surgical treatment, claimant requested therapy treatment.
the next three months he
received this treatment. He was then transferred to Huttonsville
Correctional Facility. He was
treated for the back injury while at Huttonsville also. He had
CAT scan and myelogram.
He was placed in a body cast which was removed after one day. He
physical therapy. He was offered surgical treatment but declined
Since his release from Huttonsville Correctional Facility,
received further physical
therapy. However, his physician recommends surgery as a permanent
for the herniated disc.
Claimant's back injury has prevented him from returning to
employment in the dry
cleaning industry as he is unable to perform heavy lifting duties.
has been generally employed
that industry at $5.00 per hour for 20 hours per week.
The Court is of the opinion that the respondent's employees were
negligent in allowing garbage
to overflow onto the floor of the dining facility at the West
Penitentiary. The testimony
revealed that the garbage can had holes in it, no plastic gab
were used, nor were
employees or inmates required to keep the floor free from debris.
was only one exit area
and all inmates were required to use the exit. Garbage debris in
or liquid form on a floor
presents a hazardous condition. It is foreseeable that persons
slip in it and sustain an
injury. Therefore, the Court holds that the negligence of
the proximate cause of
the injury received by the claimant.
However, respondent offered proper surgical treatment to claimant
refused this treatment
for a permanent cure of his back injury. Claimant now comes before
Court requesting a
monetary award for this same surgery which was offered to him in
The Court, after
careful consideration of claimant's testimony concerning his fear
surgery, has determined that
claimant may recover for the cost of the surgery which has been
estimated to be $3,000.00 an
amount to compensate him and for the period of convalescence that
expected in the
amount $2,000.00. He may not recover for any loss of wages or pain
suffering that has
resulted from his choice to refuse surgery in 1984.
Award of $5,000.00.