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.
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CLAIMANTS MEMORANDUM OF LAW IN SUPPORT
OF HER MOTION FOR SUMMARY JUDGMENT













FOULKE LAW OFFICES
Attorneys for Claimant
25 Main Street, 3rd Floor
Goshen, NY 10924
845-294-4308
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.
"

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.
#

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 a
sense 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).
$

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
%

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).

&

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
'

evacuated. (RTA #60).
The Fire Started On The Screen Porch Where
Wolf And Scribner Smoked Despite That
Smoking Was Prohibited At The Riverview IRA

Smoking was prohibited at the Riverview IRA. (RTA #82). None of the residents
housed at the Riverview IRA on March 21, 2009 smoked. (RTA #81). None of the residents were
awake or moving at the time the fire alarm sounded on March 21, 2009. (RTA #80). Wolf and
Scribner were smokers. (RTA #83 and #84).
Although smoking was prohibited Wolf and Scribner regularly smoked on the screened
porch. (RTA #85, #88; Foulke Aff., Exh. N). The screen porch where Riverview IRA staff smoked
is designated as Side C on the diagram attached to the RTA as Exh. A. (RTA #90; Foulke Aff., Exh.
N). The Riverview IRA staff were never disciplined for smoking and the practice was tolerated.
(RTA #87, #89). Ashtrays were located on the screen porch for smoking despite its prohibition. (RTA
#87-90). The March 21, 2009 fire started on the screened porch located and designated at Side C of
the diagram where smoking was prohibited but engaged in by Wolf and Scribner. (RTA #79). The
New York State Office of Fire and Prevention Control determined that the origin and cause of the fire
was human intervention. (RTA #109). The fire originated in a green plastic trash receptacle located
on the screened porch. (RTA #108). The New York State Office of Fire Prevention and Control found
that someone did something to introduce the source of the ignition to the trash receptacle. (RTA
#110).
Wolf And Scribner Did Not Properly
Conduct Fire Evacuation Drills As
Required And Were Poorly Trained

OMRDD required the Riverview IRA staff to conduct fire drills with sufficient
frequency to ensure that each member of the staff participated in a fire drill every month. (RTA #94).
The night shift fire drills were deficient and an actual evacuation with only two staff members present
(

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 to
the exit, in this scenario the residents were not awakened and the
Riverview IRA staff would estimate the amount of time it would take to
get 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 IRA
night 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 would
arrive 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
)

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
*+

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 is
no response, or if incorrect verification code is given, contractor
will 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).

**

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
*"

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 (1
st
Dept 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 (4
th
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
*#

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 (1
st
Dept 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
claimants prima facie demonstration 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 protect
mentally 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
th
Dept 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.3d
1621 (4
th
Dept 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 (4
th
Dept 2006) (plaintiffs motion for summary judgment should be granted where there is no genuine issue
to be resolved at trial (citations omitted)).
*$

the patients physical and mental ailments as known to the hospital (or
facility) 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 a prima facie case 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);
*%

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 (1
st
Dept 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 (4
th
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., 170
A.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 . . .).
*&

1155, 1163-64 (Ct. of Claims 2010). See, Arias v. State of New York, 195 Misc.2d 64, 70 (2003)
(when the medical care provided by the State includes the provision of psychiatric services, the State
will be held to the same duty of care as a private institution engaged in such activity); Andrews v.
County of Cayuga, 2012 N.Y. Slip. Op. 04567 (4
th
Dept 6-8-2012). Similarly, it is well settled that
the State will be held responsible when it acts negligently in a proprietary capacity as a landlord or
operator of housing. See, Rubino v. City of New York, 114 A.D.2d 243 (1
st
Dept 1986); Gorovets v.
State of New York, 116283 (3-24-2011) (when the State operates housing, it is held to the same duty
as private landlords).
It is also well settled that the degree of care owed by the State to mentally disabled
persons in its custody and control is commensurate with the patients capacity to provide for his or
her own safety. Killeen v. State, 66 N.Y.2d at p. 852 (citing, Zophy v. State of New York, 27 A.D.2d
414, affd, 22 N.Y.2d 921). The duty of care owed to safeguard the mentally handicapped in its care
is measured by the patients physical and mental ailments as known to the facility officials, physicians
and employees. Dawn v. New York, 37 A.D.3d 1048, 1050 (3d Dept 2008). When the State
operates medical and residential facilities it has a duty to safeguard patients and residents . . .
measured by the capacity of the patient [or resident] to provide for his or her own safety. Id.
(quoting, N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 252 (2002). See, also, Harris v. State of New
York, 117 A.D.2d 298, 303 (2d Dept 1986) (the degree of reasonable care is measured by the
physical and mental infirmities of the patients as the . . . employees know them). Warley v. Grampp,
2013 N.Y. Slip Op. 04080 (3d Dept 6-6-2013) (State owed a developmentally disabled plaintiff
injured in its care a duty to exercise reasonable care commensurate with her abilities and limitations
as known to defendant); Horton v. Niagra Falls Med., 51 A.D.2d 152, 154 (4
th
Dept 1976) (duty to
exercise reasonable care and diligence in safeguarding a patient, measured by the capacity of the
patient to provide for his own safety). Where, as here, the plaintiff suffers from a mental disability, a
*'

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
*(

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
*)

opinion, the most significant short coming was the manner in which the drills
were conducted by the overnight (11:00 p.m. to 7:00 a.m.) shift. (Grand Jury
Report, Exh. E, p. 5). By not practicing full evacuations and evacuations by
alternative exits, the residents . . . were put at greater risks. (Id. at p. 7). The
grand jury further found that the State failed to adequately train the Riverview
IRA staff to care for the helpless residents in the event of a fire. Evacuation was
not through the nearest exit. (Grand Jury Report, p. 9, 12, Exh. E). The
grand jury found that the circumstances leading the tragedy were reasonably
foreseeable. (Id. at p. 13);
OMRDD required by contract that the alarm monitoring company, Albany
Protective Services, first call to verify a fire emergency prior to sending a
dispatch to the local Wells Fire Department. (RTA #19, #20). The fire alarm
system was activated and a fire alarm received by Albany Protective Services at
5:25:55 a.m. (RTA # 18). Wolf or Scribner answered a phone call from Albany
Protective Services at 5:28:30 a.m. to verify if there was a fire. (RTA #22).
Requiring by contract that Albany Protective Services first contact the facility of
alarm origin rather than immediately reporting a fire to the local fire department
was a flagrant violation of Section 401.3 of the Fire Code of New York State
(RTA #26, #28, #29, #30). As a result Assistant Chief Kenneth Hoffman, who
lived directly across the street, was delayed for at least three minutes in
responding to the Riverview IRA fire alarm and was precluded during that time
from evacuating residents. (RTA ##44-55). The requirement that Albany
Protective Services first confirm a fire prior to notification of the local Wells
Fire Department resulted in a delay of the evacuation to Gloria Bonilla of
"+

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
"*

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
""

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
"#

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 York
September 27, 2013
FOULKE LAW OFFICES

By:
Evan M. Foulke, Esq.
Attorneys for Claimant
25 Main Street, 3rd Floor
Goshen, NY 10924
845-294-4308