Claimant Edward Markevitch ("claimant") brought this claim against defendant
State of New York ("defendant" or "the State") to seek damages for injuries that
he sustained on May 4, 1998 while working as an inmate porter in the infirmary
at Franklin Correctional Facility ("Franklin").
I. TestimonyA. Claimant's testimony at
Claimant testified that during the sixteen to eighteen months of his
incarceration at Franklin, he worked as a porter in the facility's infirmary
seven days a week (although only four days were required) from 8:00 a.m. until
2:30 or 2:45 p.m. He normally "just went about" his regular duties, which were
to "empty garbage, take care of floors, sweep and mop
without direction, although he identified Correction Officers Alfred J. Favreau
("Favreau") and Michael Curtin ("Curtin") and Nurse Administrator Thomas Flynn
("Flynn") as infirmary personnel who were supervisors with authority to assign
work to him. When claimant reported to work at the infirmary at 8:00 a.m. on
May 4, 1998, he started his regular duties, but "then Officer Curtin told me
that Mr. Flynn or Mr. Favreau wanted to see me on the old side of the
They had something for me to do."
Claimant found Flynn in a corridor of the old infirmary, where four or five
desks of different sizes were obstructing this heavily trafficked hallway.
Flynn told claimant "that these desks had to be moved as soon as possible. He
wanted them done now. They were obstructing passage."
Claimant testified that when he asked Flynn "how the desks got there," he was
told that "work control brought them there." Claimant described work control as
"a group of guys that go around the facility doing different types of jobs that
can't be done by the normal inmates working in that area. They go around
repairing whatever has to be repaired--electrical, whatever--their job is to
unload trucks, move furniture, that sort of nature." Claimant added that work
control is comprised of ten to fifteen inmates on any given day, who perform
work throughout the facility. Claimant had observed work control to have access
to large six-foot hand trucks with straps "like moving companies would have."
He then asked Flynn "why he couldn't call work control to get enough men over
here to do the job" because "the job looked a little too big just for two guys;
they told me to get somebody to help me and there was only one other guy
available at the time," inmate porter Oscar Covington ("Covington"). When asked
by counsel if he said anything further to Flynn, claimant replied that he
"objected from the beginning about doing the job; it just wasn't in my job
title, you know; I was there as a porter." Claimant further testified that he
considered Flynn's direction to him to move the desks an order, which he had no
discretion to disregard except upon penalty of disciplinary action; that he had
no experience with moving furniture as a civilian and had never previously moved
furniture while working as a porter at Franklin; and that he had received no
instruction or training or information about safety guidelines applicable to
When claimant subsequently approached Favreau and informed him that "Mr. Flynn
told us we had to move, told me I had to move these desks out of the corridor,"
Favreau "more or less agreed to what Mr. Flynn said and he said, ‘Well, if
he told you to move them, then move them,' you know. They're blocking the
corridor. At the same time there was little offices there that they use for
sick call, examining rooms. So they [the desks] were obstructing the traffic."
When claimant's counsel asked him if he "voiced any objection" to Favreau about
undertaking this job, claimant replied that "I just told him it was--that the
job was just a little too large for us to handle." Favreau replied, "Well, you
were told to do something, do it," which claimant again considered an order that
he had no discretion to decline to follow except upon penalty of disciplinary
Claimant sought out Covington, who also "didn't agree with the job," to help
him out. They first lifted a small, "fairly light" desk onto a four-foot hand
truck, which they wheeled about 35 or 40 yards from the corridor in the old
infirmary to the top of the basement stairway in the new infirmary. They
removed the desk from the hand truck and took it downstairs to the basement,
with claimant supporting the leading edge and Covington, the trailing edge.
Claimant and Covington next positioned a much larger desk on the hand truck.
Claimant described this desk as "oak" and "a hardwood" desk. When he and
Covington lifted this desk to position it "as best [they] could" on the hand
truck, they realized it was heavy. They wheeled the hand truck from the
corridor in the old infirmary to the top of the basement stairway in the new
infirmary, removed the desk from the hand truck and started to slide it
downstairs, with claimant supporting the leading edge and Covington, the
trailing edge; however, claimant was unable to support the desk's weight, and
the desk "broke free." Claimant lost his footing and the desk pushed him down
the stairwell, which was about as wide as the desk was deep. He came to rest on
his left side at the bottom of the stairway and injured his right leg.
On the date of this accident, claimant was very aware of his imminent release
date. He did not fear that his failure to obey an order to move the desks on
May 4, 1998 would adversely affect his scheduled release on May 21, 1998;
however, "from that day I had seventeen days to go home and I didn't want to
create no problems. I wanted to do it as easy as possible without any
confinement, loss of rec[reation] or loss of privileges. When you're written
that's what they do. They take away your
privileges and you're confined to your bed area. . . . I wanted time to pass as
quickly as possible."B. Covington's deposition
According to Covington, he arrived at the infirmary late on the morning of May
4, 1998, having overslept, to find "everybody . . . running around,
moving--moving things, desks, chairs" (DT-Cov
He "decided to go get something to eat" before starting to work (id.
When he "came out [of] the porters' little room" or "lounge," he asked claimant
"What are we doing?" to which claimant replied, "Moving desks" (DT-Cov 14).
Covington responded "I don't want to move no desks right now. I'm too tired,
and I don't feel like doing nothing," and claimant "left, kept on doing his
), but subsequently returned and told Covington "You know I need
). Claimant told Covington that the desks had to be moved down
to the basement (DT-Cov 17).
Covington testified that claimant and he carried a light desk down the stairs
into the basement, then proceeded to move a heavier desk (DT-Cov 22-24). When
asked if anyone else was in the area who might have helped move the heavier
desk, Covington replied that there were other people present, but they did not
want to help out although he asked them to do so (DT-Cov 24-25).
Covington testified that claimant and he carried the heavier desk, without
benefit of a "truck or a hand dolly." When they reached the top of the stairway
to the basement, he told claimant, "Just slide the table down the steps" (DT-Cov
25), but claimant said that he didn't "want to mess the table up. So, he said .
. . ‘I'll get on the front end of the table, on the steps, down--go down a
couple of steps. And . . . you just throw it over to me a little bit. So we
lower it down" (DT-Cov 26). Covington described their subsequent conversation
and actions and the subsequent accident as follows:
Covington described his duties as a porter as sweeping, mopping, moving and, in
general, doing what he was told to do (DT-Cov 8). He described "work crew" as
"guys that move, like move heavy--heavy things. They come, you know, like--like
some chairs come, the work crew comes and brings them--takes them off the truck.
And they move whatever, around the building"
(DT-Cov 20). When asked if work crew was "a different job than porter," he
answered that it was (id.
).C. Testimony of C.O. James Dumont
("Dumont") at trial
Dumont, a C.O. for twenty years and the Fire
and Safety Officer at Franklin, investigated claimant's accident. In his
opinion, the desk should have been lowered or carried--not slid--down the
stairway, with two men supporting its weight at the leading edge, not one
, State's exh. B-1). Dumont further testified that the desk was
fabricated from pressed wood, not oak, and that the desk's drawers were
removable. This desk had seven drawers, three on each side and one in the
, State's exh. E). D. Favreau's testimony at
When Favreau arrived at work on the morning of May
4, 1998, he observed four or five desks blocking the hallway near his station in
the old infirmary, where inmates checked into the clinic for sick call or doctor
or dental call-outs. Flynn and he decided that these desks posed a safety
hazard and should be moved as soon as possible, so Favreau talked to claimant
about moving the desks, telling him "that we have more porters on the way; wait
until everybody gets here, and then everybody can, you know, help carry the
desks down the stairs." He had four inmate porters available to him, and he
told each of them individually that "the desks had to be moved out of the
hallway and brought down the stairs and for them to take their time but that it
had to be done." At no time did any of the inmate porters complain to Favreau
that the desks were too heavy or too large for them to move, or request
additional equipment or help. According to Favreau, who was near his station at
the time, "when they [the inmate porters] first started moving the desks, there
were four," who loaded a desk onto a "cart" and left his area headed for the new
Favreau did not routinely spend his shift sitting at a desk at his work
station, but rather moved around his assigned area to carry out his security
duties, to bring I.D. cards to the dental and X-ray departments and the doctors
and nurses and to inspect rooms to make sure that they were clean. On this
particular morning, he "was all over; it was a very busy morning" after the four
inmate porters left his area with the desk, and he "was down one hallway, down
to the dental area; then [he was] down another hallway to check out the sick
call rooms, and then [he] had a minute" and went down a "completely different"
hallway to the rest room. As Favreau left the restroom, Covington, who was
"running through" the hallway, informed him of claimant's accident.
Favreau confirmed that the desk was fabricated from pressed wood, not oak, and
was of the type ("Corcraft") commonly found within the prison system, which he
had previously seen lifted and moved by two men without objection as to weight.
Favreau described work control as "an area at Franklin . . . where inmates are
assigned and there's a civilian in work control who[m] the inmates work for. It
may be an electrician or a plumber or whoever, and they go out every day within
the facility, within the fence of the facility, and they take care of whatever
needs to be fixed." Favreau testified that he would not use work control to
move desks, a task that he considered properly assigned to porters.
E. Flynn's testimony at trial
Flynn, the nurse administrator I of the infirmary at Franklin at the time of
claimant's accident, testified that on May 3, 1998, new furniture was delivered
to the infirmary and that the old furniture to be replaced was stored in a
hallway overnight. On May 4, 1998, it was determined that "the best thing to do
with the old furniture was to move it down to the basement where it would be
protected from the elements and then we were going to let the other departments
in the facility come look at the stuff and see if they could use it in their
work areas." Flynn testified that he spoke to Favreau about having the desks
moved to the basement.
Flynn may have also talked to claimant directly about moving the desks. He
described claimant as a "great worker" who did not object to him that the desks
were too heavy or too big for the porters to move or that additional equipment
or help was required to carry out this task. Flynn further testified that he
was easily accessible to claimant, and would have believed him had he objected
on these grounds and would have acted to provide him additional help. He
described the inmate porters as "handymen" and "helping hands," by which he
meant that if he "had a menial task that needed to be done, that would be an
appropriate thing to assign an inmate worker to [do] unless he said he couldn't
do it. We wouldn't assign an inmate worker in the infirmary to be an
electrician. We would assign an inmate worker in the infirmary to move
something, to watch something."
F. Curtin's deposition testimony
Curtin was the C.O. on duty in the new infirmary on May 4, 1998 (DT-Cur 7-8,
According to Curtin, "[w]hen [Flynn] came in that morning, he came through the
new side [of the infirmary], said that when the porters come in, he would like
them to move the desks down to the cellar, that were in the hallway. The
porters came in, and I sent them over to see Tom Flynn" (DT-Cur 13). Curtin
subsequently instructed claimant, Covington and a couple of other inmate porters
whose names he did not recall to talk to Flynn (DT-Cur 15).
Curtin testified that two desks had been moved from the old infirmary into the
new infirmary's basement prior to claimant's accident: claimant and Covington
moved one of these desks; another two inmates moved another desk (DT-Cur 20).
None of the inmate porters involved in moving the desks requested additional
help from Curtin (
Curtin described an inmate porter's routine duties as mopping floors, cleaning
windows, emptying garbage cans and moving furniture around as needed (DT-Cur
31-32). By contrast, work crew is "[a]nother area of the facility, they go
around doing odd jobs around the jail, with civilian workers," including
plumbing, electrical work and small carpentry or heavy lifting, if asked (DT-Cur
32). Work crew probably has "seven or eight civilians that are assigned,
whether it be general maintenance, plumbing, electrical. And they have two or
three inmates that they program with them, that have some kind of experience in
the past, in that area. And they would go with that civilian. They're usually
with a civilian. And they go as his assistants, doing work" (DT-Cur 33-34). As
a result, the task of moving the desks from the old infirmary to the new
infirmary on May 4, 1998 was "[n]ot necessarily" a job for work crew because "an
area has its own porters. You use your own workers to do your own area" (DT-Cur
After Covington alerted Curtin to claimant's accident, he and Nurse Collins
rushed down the stairway to the basement and Curtin pushed the desk about three
feet away from claimant (DT-Cur 40-43). More nurses arrived to tend to
claimant, who "was kind of bunched up, holding his leg" (DT-Cur 46), and Curtin
summoned an ambulance (DT-Cur 46-47;
, State's exhs. B-1, B-9; DT-Cur 24, 27).II.
Discussion and Findings
Inmates participating in work
programs during incarceration do not receive the protections afforded by the
Labor Law (D'Argenio v Village of Homer
, 202 AD2d 883, 884). Defendant
nonetheless owes a duty to exercise reasonable care to provide for their safety
(Callahan v State of New York
, 19 AD2d 437, affd
14 NY2d 665;
see also, Maldonado v State of New York
, 255 AD2d 630), although "[t]he
mere happening of an accident carries with it no presumption of negligence on
the part of the State [citation omitted]" (Fitzgerald v State of New
, 28 Misc 2d 283, 285). Moreover, "where an inmate fails to use
ordinary care and pursues a dangerous course of conduct, he or she is required
to take some responsibility for his or her own negligence [citations omitted]"
(Martinez v State of New York
, 225 AD2d 877,
Claimant has the burden of proving the State liable by a fair preponderance of
the credible evidence (
, PJI 1:23). The trial court, in its capacity as trier of the facts,
must view the witnesses and consider their statements upon direct and
cross-examination in determining whether the witness is credible and the weight,
if any, to be given to the evidence (see
, PJI 1:8, 1:22, 1:41; see
, Johnson v State of New York
, 265 AD2d 652; De Luke v State
of New York,
169 AD2d 916); and the Court, in this instance, finds as
(1) On May 4,1998, Flynn and Favreau assigned the inmate porters reporting to
work in Franklin's infirmary, who numbered at least four, to move four or five
desks from the hallway in the old infirmary, where these desks had been placed
the previous day after the delivery of new furniture, to the basement of the new
infirmary. The Court bases these findings on the testimony of Flynn and
Favreau, which is consistent in relevant parts with the testimony of Curtin
(DT-Cur 15, 20) and Covington (DT-Cov 13, 24-25). To the extent that claimant
testified that only two inmate porters--he and Covington--were available to move
any of these desks, the Court finds that such testimony, which is contradicted
by the other testimony in the record, is not credible.
(2) Neither claimant nor any other inmate porter protested to Flynn, Favreau
or Curtin that the individual desks were too heavy to be moved by the inmate
porters, either working in pairs or altogether as a group of four or five, or
that additional equipment (
, larger hand trucks) was required to perform this work safely. The
Court bases this finding on the testimony of Flynn, Favreau and Curtin, who
denied that claimant or any other inmate porter lodged any objection with any of
them about the feasibility or safety of this job. The Court also bases this
finding on Covington's testimony that he objected to claimant (not Flynn,
Favreau or Curtin) about moving the desks, but because he was "too tired" and
did not feel like working (DT-Cov 14), not because he regarded the job as
unsafe. The Court also notes that claimant, in his direct testimony, described
his purported objection to Flynn more in terms of the propriety of assigning
this particular work to the inmate porters rather than to work control (i.e.,
claimant's testimony that he "objected from the beginning about doing the job;
it wasn't in my job title, you know; I was there as a porter"). The Court
accordingly further finds incredible claimant's testimony that he did not object
further or refuse to perform this work after his protests were supposedly
rebuffed by Flynn and Favreau because he feared loss of privileges during the
seventeen days remaining before his release from Franklin.
(3) The desk that claimant and Covington were moving down the stairway to the
basement in the new infirmary when claimant was injured was a Corcraft desk
fabricated from pressed wood, not "oak" or "hardwood" as claimant testified.
The Court bases this finding on the testimony of Dumont and Flynn and review of
the photographs, particularly State's exh. E. Moreover, the seven drawers in
this desk were removable, based on Dumont's testimony and review of State's exh.
(4) Based on the testimony of Flynn, Favreau and Curtin, the Court finds that
it was reasonable for Favreau and/or Flynn to have assigned the task of moving
the desks to inmate porters rather than to work control, a cadre of civilian
workers and inmates usually assigned to perform more skilled work throughout
Franklin, such as plumbing or electrical work.
(5) The inmate porters in the infirmary at Franklin enjoyed considerable
discretion as to how to carry out an assigned task. The Court bases this
finding principally on Favreau's testimony in this regard, which is not
contradicted by any other testimony in the record including claimant's.
(6) The sole, proximate cause of claimant's injuries was his (or his and
Covington's) decision to slide (or partly slide), rather than lift or carry, the
desk down the stairway without obtaining additional help and/or removing the
drawers, a common sense way to reduce the desk's weight, while placing himself
below and in front of the desk on the stairway where he was likely to suffer
injuries if he could not bear the desk's weight, as he was required to do once
Covington lowered the desk towards him.
Based on the foregoing, the
Court finds that claimant has not proved by a fair preponderance of the credible
evidence that negligence on the part of the State proximately caused the
injuries that he sustained on May 4, 1998. Rather, claimant was injured because
of his own actions, which entailed an inherent and obvious risk of injury. The
Court therefore dismisses the claim, and directs the Chief Clerk to enter
judgment accordingly. Any motions on which the Court previously reserved
judgment or which were not previously decided are now denied.