New York State Court of Claims

New York State Court of Claims

MALDONADO v. THE STATE OF NEW YORK, #2000-017-602, Claim No. 96366


The Court held that claimant, an inmate injured using a portable grinder in the industry shop at Fishkill Correctional Facility, did not meet his burden of proving that the State failed to provide him with reasonably safe equipment and adequate instruction in the operation of the equipment.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court sua sponte strikes "Fishkill Correctional Facility" from the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Daniel Kogan, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General for the State of New York By: John M. Healy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 27, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Fishkill Correctional Facility, seeks damages for an injury to his forearm sustained on June 15, 1995 while he was operating a grinder in the Corcraft industry shop at the facility. Claimant alleges that defendant was negligent in failing to provide him with reasonably safe equipment and adequately train him on the use of the machine. A trial on liability was held on April 6, 2000 and this decision addresses solely the issue of liability.

The testimony and evidence elicited at trial establishes that on the day of the accident, claimant was constructing a steel frame, a process which required him to weld pieces of metal together and use a portable disc grinder to smooth rough edges. At some point while claimant was operating the grinder, his left sleeve became caught in the machine and his forearm was drawn against the rotating disc, leaving a deep 5 to 6 centimeter laceration. Although a safety guard which partially covered the rotating grinding wheel was standard equipment for the 7" Makita grinder used by claimant, photographs of the scene taken shortly after the accident depict the grinder without a guard (Cl's Exh 1). No safety guard for the grinder was ever recovered.

Eric Little, an inmate present in the industry shop at the time of the accident, testified on behalf of claimant. He recalled that he had finished an assignment cutting sheet metal and was watching claimant with the hope of learning some welding skills. Little stated that he had seen claimant perform both welding and grinding tasks on prior occasions. He characterized claimant as a "proficient"[1]
welder but could not speak to claimant's skill as a grinder.
Little testified that he saw no safety guards on any grinder used in the Corcraft shop. He acknowledged that his assignment was limited to cutting sheet metal and he was unaware prior to the date of the accident that grinders should be equipped with safety guards. He further conceded that in an affidavit prepared shortly after the incident, he made no reference to the presence or absence of safety guards.

Claimant testified that he arrived at Fishkill in June 1993 and began a vocational welding program. He remained in the vocational program until April 1995, when he transferred to the industry shop. He recalled that when he began working in the industry shop, supervisor Lester Szabo provided him with 20 to30 minutes of general safety instruction on the approximately 50 tools used in the shop, but no specific training on the operation of any particular tool. According to claimant, he initialed a form certifying that he had received instruction on the safe operation of each tool "because it was required." He denied having seen written safety instructions (Cl's Exh 3, at 1) and could not recall the general instruction given regarding the grinder.

Claimant asserted that he had never operated the grinder in connection with his welding duties before the date of the accident. On cross examination, he conceded that he had operated a 4" grinder "once or twice" in the vocational welding program. He explained that during the time he worked in the industry shop, he ordinarily worked with a partner who operated the grinder. On the date of the incident, however, his partner was absent so he performed both welding and grinding. According to claimant, he requested a grinder with a safety guard, but only one grinder had such a guard and it had already been assigned out and was in use throughout the day.

Claimant had returned from lunch and had been operating the grinder for approximately half an hour when the accident occurred. He recalled that he immediately wrapped his arm in a rag and the remnants of the sleeve of his welding jacket and approached a correction officer who escorted him to the facility clinic. He testified that no one from the facility ever questioned him about the accident or sought an explanation from him for an accident report. Claimant acknowledged that he never reported the absence of a safety guard at any time before or after the accident.

Michael McDonough, a training officer in the industry shop at Fishkill, testified on behalf of defendant. McDonough explained that the tool room in the industry shop contained approximately 200 Class A tools, including four grinders. The tools were inspected on a daily basis. They were distributed to inmates by one of several civilian employees or correction officers who worked in the tool room.

According to McDonough, all grinders were equipped with guards and would not be issued without the guard in place. He stated that the guard on a grinder is intended to protect against injury in the event the wheel shatters and to prevent clothing from being caught in the grinding wheel. He expressed his opinion that removing the guard would not necessarily make the grinder easier to use, but that an inmate might remove a guard to access the grinding wheel for use in making weapons. He recalled instances in which inmates had been written up for removing safety guards, but could not confirm whether those incidents occurred before or after the date of the incident. He did not know of any complaint on the date of the incident regarding claimant's use of a grinder without a safety guard.

Lester Szabo, the Industrial Training Supervisor of the industry shop at the time of the incident, echoed the testimony of McDonough that all tools were inventoried and inspected on a daily basis and that only a civilian employee or correction officer could issue a Class A tool. Szabo further testified that he provided inmates assigned to the industry shop general written safety instructions (Cl's Exh 3) and information on proper safety equipment, as well as 1 ½ to 2 hours of safety instruction regarding all the machines used in the shop. Training on the operation of particular machines was given separately, either by Szabo or an experienced inmate. The safety instructions for the grinders recounted by Szabo included warnings not to wear loose clothing and not to operate the grinder without the safety guard in place. Szabo indicated he was aware that inmates would sometimes remove a safety guard to grind odd spots, but he warned inmates if they were seen using equipment without a safety guard, they would be fired. He did not believe claimant had ever been written up for using a tool without a guard.

Sergeant John Conklin testified that he was present in the industry shop on the day of the incident and escorted claimant to the clinic after the accident. He recalled observing claimant both before and after the accident. He noted that claimant was using a large grinder, but did not notice whether the safety guard was in place. He denied that claimant was wearing a welding jacket and asserted instead that claimant was wearing a thermal top with sagging sleeves and a green canvas sleeveless apron.

Conklin also testified that only civilian employees and correction officers had authority to issue Class A tools. He added that an inmate tool clerk could give out tools in the presence of a civilian employee or officer. Conklin explained that the tools were gathered up when the inmates went to lunch and were redistributed when the inmates returned.

Vito DiGirolamo, Jr. testified that he was responsible for conducting an inventory of 2,700 Class A and Class B tools in the tool room at the industry shop on the date of the accident. He entered the following statement into his log book: "Tool room inventory done, all tags and tools accounted for" (Def's Exh A). According to DiGirolamo, the process of taking inventory included performing a visual inspection to determine whether tools were safe to distribute. He stated that if a tool was missing a safety guard, it would be tagged broken and would not be issued.

DiGirolamo recalled that he saw claimant in the morning of the accident, again in the early afternoon and immediately after the accident. In the afternoon, DiGirolamo observed claimant using the grinder, but was not close enough to see whether the grinder guard was in place. According to DiGirolamo, each time he saw claimant, claimant was wearing a white thermal top and an apron, not a welding jacket. After the accident, DiGirolamo secured and searched the area, but was unable to locate the grinder guard. He acknowledged that as inmates left the area, they were required to pass through a metal detector. He recounted that the grinder was tagged broken until a replacement guard was obtained.

Lance Campbell, Vocational Welding Instructor at Fishkill from September 1987 through November 1995, testified that he trained claimant on the use of various machinery, including a portable 7" disc grinder. Campbell indicated that as part of the training, he instructed claimant on placement of the guard and the importance of proper clothing, including a specially-issued jacket with buttoned sleeves. He stated that he informed claimant if he received a grinder without a guard, he should return it to the tool room clerk immediately and notify Campbell.

Referring to claimant's Training Achievement and Potential Employability Report (Def's Exh B) , Campbell testified that as a student, claimant passed various tests which involved the use of a grinder. He stated that claimant eventually became a teacher's aide and, as such, "certainly" used pedestal and portable grinders "numerous times" and "absolutely" used a 7" grinder. He further indicated that as a teacher's aide, it would have been claimant's responsibility to explain the operation and safe use of grinders to other inmates.

On the evidence presented, the Court concludes that claimant failed to sustain his burden of proving that his injuries resulted from a failure on the part of defendant to provide him with safe equipment and adequate training on the use of that equipment. Although the State owes a duty to inmates who participate in work programs to provide reasonably safe machinery and equipment with which to work and adequate warnings and instruction for the safe operation of the machinery and equipment (
Callahan v State of New York, 19 AD2d 437, 438, affd 14 NY2d 665), the State is not an insurer of an inmate's safety and liability may not be imposed based upon the mere happening of an accident. Moreover, an inmate is responsible for his own failure to use ordinary care (see Carter v State of New York, 194 AD2d 967; Kandrach v State of New York, 188 AD2d 910).
The Court accepts the testimony of Vito DiGirolamo that he conducted an inspection of all Class A tools the morning of the accident and all guards were present. DiGirolamo's account is bolstered by the harmonious testimony given by Michael McDonough, Lester Szabo and Sergeant John Conklin indicating that a grinder without a safety guard would have been tagged as broken and not issued to an inmate. The Court likewise credits the testimony of Lance Campbell and Lester Szabo establishing that claimant received instruction on the safe use of the 7" portable grinder, including the importance of the safety guard and the need for appropriate clothing, on more than one occasion and that claimant used the grinder "numerous" times as a student and assistant teacher in the vocational welding program. The Court found no indication that the testimony of any of the defense witnesses was infected by bias against the claimant or is otherwise lacking in credibility. The testimony given by claimant and Eric Little, on the other hand, was unconvincing.

In sum, the Court concludes that claimant's own carelessness, rather than any negligence by the defendant, caused the accident and that claimant is solely responsible for his injuries
. The claim is DISMISSED.

September 27, 2000
White Plains, New York

Judge of the Court of Claims

[1] All quotations, unless otherwise indicated, are from the tape-recorded trial record.