5. Affirmation in Opposition to Motion and in Support of Cross-Motion and
8. Claimant's Bill of Particulars
Claimant suffered facial injuries on August 27, 1998 when a projectile launched
from a lawn mower struck his head. At the time of the incident, Claimant was an
inmate confined to the Groveland Correctional Facility (Groveland) and was
working as a power trimmer operator on a Building and Grounds Maintenance
detail. Another inmate was operating the lawn mower.
In his motion for summary judgment on the issue of liability, Claimant argues
that Defendant is legally responsible for his injuries as a matter of law
because it negligently failed to require Claimant to wear safety glasses,
failed to supervise and/or train its inmate laborers in the safe use of lawn
mowers, and failed to inspect and clear the area to be mowed of objects that
could be thrown by a lawn mower blade.
Defendant argues that Claimant has not satisfied its initial burden on his
motion for summary judgment, that there are material issues of fact that require
denial of the motion and that Claimant's bill of particulars and his present
motion contain theories of liability that exceed the bounds of his original
claim. In a cross-motion, Defendant asks me to strike the unpleaded theories of
liability from Claimant's bill of particulars and to eliminate certain damages
allegations from the bill that Claimant had previously agreed to withdraw.
Claimant has not submitted any opposition to Defendant's cross-motion.
As the moving party, Claimant has the burden of producing admissible evidence
establishing Defendant's negligence as a matter of law (GTF Marketing v
Colonial Aluminum Sales, 66 NY2d 965, 967; Buffalo Retired Teachers 91-94
Alliance v Buffalo Teachers Federation, 251 AD2d 968; CPLR 3212). If
Claimant meets that burden, then the burden shifts to Defendant to demonstrate
that there are factual issues requiring a trial (GTF Marketing v Colonial
Aluminum Sales, supra, at 968). If Claimant fails in his
initial burden however, his motion must be denied regardless of the sufficiency
or insufficiency of Defendant's papers (Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853; Buffalo Retired Teachers 91-94 Alliance v Buffalo
Teachers Federation, 251 AD2d 968, supra).
As described above, Claimant's first theory of liability is that Defendant
negligently failed to require him to wear safety glasses. This prong of his
motion must be denied because Claimant has not submitted proof demonstrating
that Defendant's alleged negligence was the proximate cause of his injury.
There is no proof that safety glasses would have covered the part of Claimant's
nose and face that the projectile struck or that safety goggles would have been
strong enough to withstand the force of the projectile and prevent Claimant's
Even if Claimant had established that a failure to wear goggles caused his
injury, the motion would have to be denied because there are questions of fact
as to the degree of comparative fault that Claimant and Defendant should each
have to shoulder for this alleged breach of duty of care (see,
Thoma v Ronai, 189 AD2d 635, affd 82 NY2d 736). Claimant,
an experienced groundskeeper, acknowledged that Defendant made safety glasses
available for his use on the day in question but that he chose not to wear them
because they had rusted to the point that they interfered with his vision.
There is no evidence, however, that he notified his supervisor that he
considered the eyewear unsuitable for his use or that he asked that other
precautions be taken to prevent the type of injury that occurred. Thus, there
is an issue of fact as to whether Claimant acted as a reasonably prudent person
on the day in question (see, Maldonado v State of New York,
255 AD2d 630).
Claimant has also failed to meet his initial burden of proof on his second
theory of liability. Although broadly worded as a failure to supervise or
train, the essence of Claimant's theory is that the accident would not have
happened if Claimant and the lawn mower operator had not been positioned so
To substantiate this theory, Claimant relies upon the testimony of Defendant's
Fire Safety Officer and upon a publication of the US Consumer Product Safety
Commission (CPSC). The Fire Safety Officer opined in the course of his
deposition that Claimant and the lawn mower operator were working too close
together at the time of the accident. The CPSC bulletin cautions users of
ride-on mowers to "[b]e sure the area is clear of other people before mowing"
and to "[s]top the mower if anyone enters the area."
Defendant has not submitted evidence suggesting that the distance between the
two groundskeepers was appropriate. Instead, it argues: (1) that it owed no
duty to supervise Claimant and the other inmate because they were adults; and
(2) that the statement made by Officer Ball cannot be introduced into evidence
as an admission by Defendant or as an opinion, and therefore cannot be relied
upon in support of Claimant's motion.
It is not entirely clear to me that Officer Ball's deposition statement is
evidentiary proof in admissible form that I could appropriately consider on this
motion (see, Wright v Rite-Aid of NY, 249 AD2d 931;
Ledet v Battle, 231 AD2d 884; LaGrega v Farrell Lines, 156 AD2d
205). On the record before me, Officer Ball's qualifications to render an
expert opinion on lawn mower safety are unclear. Even if they were deemed
adequate, however, his opinion lacks a sufficient factual foundation since his
testimony does not establish that he actually knew how far apart the two inmates
were at the time of the accident (see, Caton v Doug Urban
Construction Co., 65 NY2d 909 [an expert's opinion not based on facts is
"worthless"]; Cassano v Hagstrom, 5 NY2d 643 [opinion evidence must be
based on facts in the record or personally known to the witness]; Soulier v
Hughes, 119 AD2d 951 [expert's opinion must be based on established facts
relevant to the controversy]). Officer Ball's testimony could not be admitted
as a lay opinion either. "New York follows the orthodox rule that excludes lay
opinion except in situations of necessity" (Martin, Capra & Rossi, New York
Evidence Handbook §7.1). Here, Claimant has not demonstrated that this is
a situation where "it would be impossible to accurately describe the facts
without stating an opinion or impression" (id.). While it may be
true that admissions in the form of opinions are admissible even though such
opinions run afoul of the rule of necessity (Martin, Capra & Rossi, New York
Evidence Handbook §8.3.2), Claimant has not shown that Officer Ball had the
requisite speaking authority to bind claimant by his statement
(see, Loschiavo v Port Authority of New York and New
Jersey, 58 NY2d 1040).
I also conclude that the CPSC directive to make sure that "the area is clear"
is entirely too vague to establish that the two men were too close together in
this case. The proof does not reveal how close Claimant and the lawn mower
operator were at the time of the accident. All that is known is that the
witnesses were in the same yard, which one witness, Officer Seiferth, testified
was about three-quarters of an acre in size. I would need to know more about
what was meant by "the area" and more about the distance between the two men
before I could conclude that a duty of care had been breached.
Even if Claimant had shown, however, that he and the lawn mower operator were
within an unsafe proximity to one another, I would deny the motion. Defendant
has a duty to provide a reasonably safe work place for Claimant and to warn him
about hazards he reasonably might fail to appreciate (Fitzgerald v State of
New York, 28 Misc 2d 283, 285). There are issues of fact as to whether this
was a danger that a worker like Claimant would reasonable fail to appreciate.
There are also issues of fact regarding Claimant's relative degree of fault,
since Claimant's testimony establishes that he knew that the mower was already
in operation in the yard at the time he entered it (see, Thoma
v Ronai, 189 AD2d 635, affd 82 NY2d 736, supra).
Therefore, Claimant has failed to establish his second theory of liability as a
matter of law.
Claimant's finally theory, that an inadequate job was done of clearing the
yard, also raises factual issues since there is a dispute between Claimant and
Officer Ball as to the condition of the yard at the time in question.
This brings me to Defendant's cross-motion. It is Defendant's position that I
should strike the second, fourth, fifth, sixth and seventh bulleted points found
under paragraph "2" of Claimant's bill of particulars and a portion of the third
bulleted point under paragraph "2." Defendant asserts that these contentions
exceed the scope of the claim or are inconsistent with it. According to the
affidavit of service appended to the bill of particulars, Claimant served the
bill almost 18 months before Defendant made its cross-motion.
The second bullet point alleges that Defendant's negligence includes "the
failure of any corrections officer to discover and remedy the dangerous
condition of the lawnmower prior to its' [sic] use in the captains [sic]
residence yard of the facility." This bullet point must be read in conjunction
with the one that immediately precedes it, which makes clear that the "dangerous
condition" at issue is the absence of a safety guard on the lawn mower. Since
the claim alleges that Claimant's injuries are attributable at least in part to
the absence of a safety guard, I conclude that this paragraph of the bill of
particulars comes within the scope of the pleadings and should not be
The fourth bullet point and the portion of the third bullet point to which
Defendant objects allege that Defendant's negligence includes failing to
supervise or train Claimant and failing to have Claimant sign an acknowledgment
that he had received training in the safe use of power tools. The crux of
Defendant's challenge is that the claim alleges a "failure to train and
supervise the operator of the lawnmower" (emphasis added) but says
nothing about the adequacy of the training that Claimant received.
Defendant is correct that there is a variance between the allegations of the
claim and the bill of particulars. However, I have broad authority to amend
Claimant's pleadings at any time to conform them to the evidence
(e.g., Murray v City of New York, 43 NY2d 400; Dougherty
v Dougherty, 256 AD2d 714; Rothstein v City University of New York,
148 Misc 2d 911 affd 194 AD2d 533; CPLR 3025).
I conclude that exercising that authority is appropriate here to the extent
that Claimant's theory is founded on its belief that better training and
supervision would have prevented Claimant and the lawn mower operator from
working too closely together. My review of the evidence that Claimant submitted
in support of his motion for summary judgment persuades me that this theory
appears to be meritorious, that the State had timely notice of the essential
facts constituting the claim, and an opportunity to investigate them, and that
the State has not been prejudiced by any delay in asserting this theory.
Therefore, to the extent that this amendment would give rise to a new "claim," I
find that the factors relevant to allowing such a claim weigh in favor of
Claimant (see, Court of Claims Act §10). I note also that
the statute of limitations has not expired on a negligence claim arising from
this 1998 incident (see, CPLR 214).
The fifth, sixth and seventh bulleted paragraphs allege a failure of the
correction officers to inspect the yard that was to be mowed and to discover and
remove any obstacles or safety hazards. Although not spelled out explicitly in
the claim, a failure to adequately inspect and clear the yard was implicit in
Claimant's description of the circumstances that led to the accident.
Therefore, I conclude that the claim should be deemed to be amended to permit
Claimant to pursue this liability theory at trial as well. My review of the
evidence suggests that the factors to be considered in determining whether to
allow a late claim also preponderate in favor of permitting this amendment
(see, Court of Claims Act §10).
Defendant also argues that the allegations of the bill of particulars should be
dismissed to the extent that they describe injuries other than the facial
injuries caused by the projectile. My review of the preliminary conference held
before me on February 17, 2000 indicates that Claimant agreed at that time to
withdraw any claim for those alleged injuries. Claimant has not opposed
Defendant's motion to strike the allegations here. Therefore, I am now striking
the fourth, fifth, seventh and eighth bulleted points found under paragraph "5"
of the bill of particulars, paragraph "7" of the bill of particulars, and the
reference to neurological care for Claimant's neck found in paragraph