New York State Court of Claims

New York State Court of Claims

DeFEO v. THE STATE OF NEW YORK, #2000-029-029, Claim No. 92330


Prisoner injured working in kitchen of facility while performing janitorial duties. Court found claimant failed to establish the existence of a dangerous condition and that the work place was not reasonably safe. No breach of duty by State to claimant. No liability. Dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Jack Weiner, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 2, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is an action for personal injuries sustained by claimant on the evening of June 17, 1995 in the kitchen of Green Haven Correctional Facility (hereinafter Green Haven). The trial of this claim was bifurcated and this decision pertains only to the issue of liability.

Claimant testified as follows: (1) on June 17, 1995 he was working the 7:00 p.m. to 10:00 p.m. shift as a kitchen porter at Green Haven; (2) he had been working as a kitchen porter at the facility since the end of May, 1994; (3) to clean the kitchen floor the porters had to get hot water from the large kettles located in the back of the kitchen; (4) "pitcher buckets" [1]
were used to transfer water from the kettles to the floor; (5) each bucket had a handle on the side like a pitcher and a wire handle going across the top of it; (6) if the spigot on the bottom of the kettle had been removed by correctional personnel, then one would have to get the hot water by dipping the bucket into the water at the top of the kettle; (7) prior to the date of this incident, when he dipped the bucket into the kettle, he had one hand on the wire handle and his other hand on the bottom of the bucket.
Claimant further stated that on June 17, 1995 there was no spigot on the kettle so he had to take the bucket and place it into the kettle to draw the water. Claimant testified that on this date there were no wire handles on any of the buckets available for use and that he was told the handles had been removed for security purposes. He testified that he told Correction Officer Harding, the supervisor of his work crew, that the wire handles had been removed and that the job would be difficult to perform without those handles.

Claimant further testified that he was instructed to perform the job anyway. He stated that he took the bucket and raised his arm, dipped the bucket into the kettle, twisted the bucket to get water into it, then turned it to raise it back up out of the kettle and carry it to the area of the floor he was going to clean. Claimant stated that while performing the above, he injured his right bicep. He stated that he could only use his right hand to carry the bucket as the bucket contained only a pitcher handle and not a wire handle. He further stated that he could not place his left hand under the bucket to assist in lifting the bucket because the water was too hot and he would have burned his hand. Claimant stated that after he sustained the injury, he reported the matter to Officer Harding.

On cross-examination, claimant stated that he had been working as a porter in Green Haven for about 13 months at the time of his injury and that he worked five days a week. He also stated that before he arrived at Green Haven in March, 1994, he had worked as a porter in other correctional facilities. On re-direct examination, claimant estimated that the bucket, when full of water, weighed 20 to 30 pounds.

Claimant called Donald Bloomer to testify on his behalf. Mr. Bloomer testified that (1) he was incarcerated at Green Haven on June 17, 1995 (2) he was a porter working the 7:00 p.m. to 10:00 p.m. shift on that evening; (3) he usually worked as a team with another porter and that one porter would carry the water from the kettles to the area of the floor being cleaned and splash it on the floor and the other inmate porter would mop the floor; (4) on June 17, 1995, he was mopping the floor and claimant was transporting the water.

Mr. Bloomer further stated that the bucket used by claimant to get water from the kettle was a regular bucket with no handles. He stated that prior to June 17, 1995, the buckets had a handle just like a handle on a pitcher made out of the same material as the bucket. He stated that he did not remember the bucket having a wire handle that went over the top of the bucket. The witness estimated that the bucket held about 5 gallons of water and the bucket, when empty, weighed about 3 to 4 pounds. He stated that he knows that claimant got hurt dipping the bucket into a kettle because he heard claimant yell.

The State called Richard Markle to testify. The witness testified that on June 17, 1995 he was employed by the New York State Department of Correctional Services as a Correctional Sergeant and was assigned to Green Haven. He stated that one of his assignments was as area sergeant of the kitchen facility at Green Haven and that he is aware of the procedure inmates employed for washing the floors in the kitchen of the facility.

Mr. Markle stated that he does not remember the incident involving claimant. He further stated that for security reasons the wire handles on buckets have always been removed before allowing inmates to use them because if not, the inmates could easily remove them, twist and sharpen them and turn the handles into dangerous weapons.

Markle also testified that the spigots for the kettles were removed by civilian employees and kept in a secure area, but that an inmate porter could have asked for one and it would have been made available.

Upon inquiry from the Court, Markle stated the policy at Green Haven from the time he arrived there in December, 1994 was to remove wire handles from buckets before the buckets were given to the inmates.

It is well settled that when the State, through its correctional authorities, directs an inmate to participate in a work program during incarceration, it owes the inmate a duty to provide a reasonably safe workplace with reasonably safe equipment with which to work (
Martinez v State of New York, 225 AD2d 877; Kandrach v State of New York, 188 AD2d 910). The State also has a duty to apprise the inmate of known dangers that the inmate could not reasonably be expected to discover himself (Campo v Scofield, 276 App Div 413 affd 301 NY 468; Fitzgerald v State of New York, 28 Misc 2d 283).
The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (
Condon v State of New York, 193 AD2d 874). Also, where an inmate fails to use ordinary care and pursues a dangerous course of conduct, the inmate is required to take some responsibility for his own negligence (see, Martinez v State of New York, supra, 225 AD2d 877).
Here, the first issue for the Court to determine is the credibility of the witnesses and whether the bucket claimant was using had a wire handle prior to the date of the accident. Mr. DeFeo testified that prior to the date of the accident the buckets had wire handles, while both Mr. Bloomer and Mr. Markle testified that the buckets, in their experience, never had wire handles. Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the testimony of Bloomer and Markle is more credible than DeFeo's on this issue. Markle testified most credibly and with the rationale that the wire handles were removed from the buckets for security reasons as the wire could be removed by inmates and fashioned into a weapon. Thus, we find that claimant, who testified he worked as a kitchen porter since May, 1994 had previously, and on numerous occasions, used the bucket without the aid of a wire handle. We find claimant's testimony to the contrary not to be credible.

The Court finds that based upon the credible evidence addressed at trial, claimant failed to establish the existence of a dangerous condition or that the State was on notice of a dangerous condition. Claimant offered no evidence other than his personal, unsubstantiated, conclusion that the use of the bucket, without a wire handle, was a dangerous condition. No expert testimony was provided to establish that an inmate porter provided a bucket without a wire handle was provided equipment that was not reasonably safe or that the inmate was thus forced to work in a workplace that was not reasonably safe (see,
Martinez v State of New York, 225 AD2d 877, supra; see also, Kandrach v State of New York, 188 AD2d 910, supra). Thus, based upon the credible evidence submitted, we cannot find that claimant established a breach of a duty owed to him by the defendant.
In addition, we also find that claimant failed to establish that the lack of the wire handle was the proximate cause of his injury. Claimant offered no documentary evidence to establish that he was injured, and further, presented no medical testimony establishing that the injury was proximately caused by claimant filling a bucket, without a wire handle, by dipping it into a large kettle. Finally, the claimant had the most reasonable opportunity to prevent his injury by merely filling the bucket to something less than full.

Therefore, based upon the foregoing, the State's motion to dismiss made at the conclusion of the trial, upon which the Court reserved decision, is now granted and the claim is hereby dismissed. All other motions, upon which the Court reserved decision, are now denied as moot. The Chief Clerk is directed to enter judgment accordingly.

November 2, 2000
White Plains, New York

Judge of the Court of Claims

All quotations, unless otherwise noted, are from the official electronic tape recording of the trial.