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 damages
for injuries he received in
a fall at the West Virginia Penitentiary in Moundsville, West Virginia.
Claimant alleges that
respondent was negligent in allowing excess garbage to flow onto the
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 debris
on the floor and that
claimant was negligent when he walked through the area. Respondent also
contends that surgical
procedures were available to claimant to correct the injury to his back
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 of
wages, and pain and
suffering when he declined to have the surgery while in the custody of

Claimant was incarcerated at the West Virginia Penitentiary from July,
1981, until July, 1984.
In 1983, claimant had surgery for a back injury which he had received
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 returned to
the infirmary at the
Penitentiary on August 2, 1983. Approximately a week later on August 8,
1983, claimant was
required to walk from the infirmary to the dining facility to eat his
meals. Claimant proceeded to
the dining facility for his lunch. As he was leaving the dining room
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 moment he
slipped on a slice of
pickle and ended up on his back on the floor. There as debris in solid
and liquid form on the
floor of the dining facility at the exit area from the garbage can to
the exit door for several feet.
Claimant testified that he walked around most of the debris. However, he
stated that "... you
couldn't walk around the juice. There was just a string of it running,
just a pool of it all the way
down the hall."

As a result of this fall, claimant suffered another back injury for
which he was hospitalized at
Reynolds Memorial Hospital. While there as a patient, he was given a CAT
scan and a
myelogram which revealed that he had a slipped disc and a pinched nerve.
This disc was the
same one for which claimant had received surgery and for which he was
recovering. Fearing
further surgical treatment, claimant requested therapy treatment. For
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 another
CAT scan and myelogram.
He was placed in a body cast which was removed after one day. He then
received further
physical therapy. He was offered surgical treatment but declined that

Since his release from Huttonsville Correctional Facility, claimant has
received further physical
therapy. However, his physician recommends surgery as a permanent cure
for the herniated disc.

Claimant's back injury has prevented him from returning to full-time
employment in the dry
cleaning industry as he is unable to perform heavy lifting duties. He
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 Virginia
Penitentiary. The testimony
revealed that the garbage can had holes in it, no plastic gab liners
were used, nor were
employees or inmates required to keep the floor free from debris. There
was only one exit area
and all inmates were required to use the exit. Garbage debris in solid
or liquid form on a floor
presents a hazardous condition. It is foreseeable that persons could
slip in it and sustain an
injury. Therefore, the Court holds that the negligence of respondent was
the proximate cause of
the injury received by the claimant.

However, respondent offered proper surgical treatment to claimant who
refused this treatment
for a permanent cure of his back injury. Claimant now comes before this
Court requesting a
monetary award for this same surgery which was offered to him in 1984.
The Court, after
careful consideration of claimant's testimony concerning his fear of
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 can be
expected in the
amount $2,000.00. He may not recover for any loss of wages or pain and
suffering that has
resulted from his choice to refuse surgery in 1984.

Award of $5,000.00.