The claim arose on February 2, 1996, when the Claimant, Charles R. Williams,
sustained a severe crush injury to his left hand while operating an "ironworker"
machine at Wyoming Correctional Facility (Wyoming) where he was incarcerated.
Claimant alleges that Defendant failed to properly train, warn and supervise
him, failed to properly maintain the ironworker, and failed to provide him with
a reasonably safe place to work. This decision addresses only the issue of
liability as the trial was bifurcated.
Bienvenido Perez, a fellow inmate at Wyoming, testified that on the day of the
incident, he was in the welding shop cutting steel. Perez testified that an
inmate had to be assigned to the welding shop for a time and be trained before
being assigned a particular task, such as cutting steel. Perez had received
some training in welding before being incarcerated and then trained with Timothy
Maksymick, the civilian instructor in the welding shop, employed by the
Defendant. Perez, like all other inmates, was initially trained on the welding
machines. Once he became proficient in the use of all types of welding
machines, he was then trained on the ironworker.
At the time of the incident, Perez was working on another machine about twenty
feet away, with his back to the ironworker. His attention was drawn to the
ironworker when he heard the machine turn on. He turned around and saw Claimant
with his left hand in the wrong area of the machine. Perez hollered to Claimant
and asked him what he was doing. When Claimant did not respond, he ran over to
the ironworker to try to pull Claimant's leg off the floor pedal which activated
the machine. By the time he reached the ironworker, Claimant's hand was being
Perez had been trained by Maksymick on this particular ironworker at Wyoming.
It was the only ironworker he had ever operated. Perez did testify, however,
that he had seen another ironworker machine at Groveland Correctional Facility
(Groveland), and that that machine, unlike the one at Wyoming, had protective
guards. He further testified that Maksymick instructed him that without the
protective guard, one had to be very careful when using the ironworker.
Perez was involved with the training of new inmates as a mentor. He would
assist by showing new inmates how to use the cutting torch, the ironworker, the
shearer and other machines. Maksymick was generally in the shop whenever Perez
would be training new inmates. Perez and three other inmates were authorized to
use the ironworker. Claimant was not. According to Perez, Claimant did not ask
him on the day of the incident to operate the ironworker for him, and he had
never given Claimant permission to use the ironworker.
After the incident, Perez talked to Maksymick about the incident. Maksymick
then prepared a handwritten account of the incident which Perez signed (Exhibit
I). According to this account, Perez told Claimant not to use the ironworker.
Perez testified that Maksymick was not in the welding shop at the time of the
incident, was out in the hallway, and only came back into the shop after the
incident had occurred.
Claimant testified that he was in the vocational shop being trained in welding
on the day of his accident. In the morning, he attended some welding classes
and then proceeded to work on an arc welder. After lunch, Claimant needed more
steel cut for his welding work, and purportedly he asked Maksymick if he could
use the ironworker. Initially, Claimant testified that he couldn't recall
Maksymick's response, but later averred that Maksymick told him that someone
with experience had to be present if he was going to use the ironworker.
Claimant then testified that he asked Perez to show him how to use the
ironworker. Perez told him that he could cut the steel himself, but only while
Perez was standing there because Perez had more experience with the
This was the first time Claimant had ever used this machine. According to his
early testimony, the ironworker was already on and all he had to do was insert
the metal and push the floor pedal. Later, however, he testified that Perez
actually turned the machine on and handed him a piece of steel. Claimant
testified that Perez walked away before he pushed the floor pedal and was about
fifteen to twenty feet away at the time of the accident. Claimant denied that
Perez gave him any instruction in the operation of the ironworker.
Claimant testified that he placed the steel in the cutting area of the machine.
Almost simultaneously he pushed the floor pedal and placed his left hand on the
small metal square below the hydraulic arm of the machine. He admitted that he
was familiar with the machine from watching other inmates use it and knew prior
to the accident that activation of the floor pedal caused the hydraulic arm to
descend and hit the small metal square which, in turn, caused the blade to cut
At the time of the incident, Claimant testified that there were no protective
shields or warning labels on the ironworker. He admitted, however, that he did
not know whether any were supposed to be on the machine.
According to Claimant, Maksymick was not in the shop at the time of his
accident. This was based on his belief that Maksymick would have come to his
aid immediately had he been in the shop. Chaos ensued after the accident. One
of the other inmates left the shop to get the correction officer stationed in
the hallway outside the shop. Claimant testified that approximately five
minutes elapsed between the time he screamed and the time when he saw
When asked if he was aware that he was not authorized to use the ironworker,
Claimant responded: "Why would I not be authorized to use the machine in my
welding shop?" Claimant did admit, however, that he needed supervision to use
the machine. Claimant was aware that Perez had experience with the ironworker
and testified that Perez was in the room when he was using the machine.
Before being transferred to Wyoming, Claimant had been incarcerated at Midstate
Correctional Facility (Midstate). While at Midstate, Claimant was assigned to
the vocational shop for welding. Upon his transfer to Wyoming, Claimant
requested that he be assigned to the vocational shop. Claimant was assigned to
do welding at Wyoming and was trained in welding by Maksymick. Claimant
received no training on the ironworker, and the only task he was assigned to do
prior to the accident was welding. According to Claimant, Maksymick never asked
him to use the ironworker or told him that he could not use the ironworker.
Claimant also testified that Maksymick did talk to the entire group of inmates
regarding the dangers of the ironworker.
Claimant testified that he was part of a group of new inmates who received
orientation to the vocational shop by Maksymick, including an explanation of the
safety rules in general. At the conclusion of the orientation, Claimant and the
other inmates were asked to sign a sheet (Exhibit D) entitled "Inmate Safety
Program" which outlined the safety rules for the shop, including Rule 15 which
states: "No power equipment is to be used without the specific permission of the
instructor." According to Claimant, Maksymick never told him that he could not
use equipment without permission. Rather, Claimant testified that he was told
that he should have an experienced person with him if he wanted to use a machine
on which he had little experience. When asked if it was his understanding that
he could use any machine in the shop, he responded: "Why wouldn't I be able to?
I'm a student." Later he admitted that this statement was based on his
assumption that as a student he could use any machine in the shop.
During his trial testimony, Claimant was unsure if Maksymick specifically
explained all of the rules on Exhibit D before asking the inmates to sign it.
During his deposition, however, he stated that all of the rules were explained
to him before he signed the sheet. Prior to the incident, Claimant did not
believe that Maksymick ever counseled him about not following safety rules.
Claimant denied breaking any safety rules.
After the incident, Claimant was charged with failing to follow a direct order
and failing to follow safety rules, and went to a hearing before a disciplinary
officer, where he was found guilty of both charges. When asked if he violated a
direct order from Maksymick not to use the ironworker, Claimant testified: "I
may have; I may not have."
Claimant reiterated his testimony that Maksymick told him that someone with
experience had to be present if he was going to use the ironworker, and this is
why he allegedly asked Perez for help. Claimant admitted, however, that he used
his own common sense based on his ability and training to determine for himself
what was right or wrong after receiving instruction from Maksymick.
Correction Officer (CO) Parmeter, the fire and safety officer, investigated
the incident within a half hour of its occurrence and took photographs of the
machine. CO Parmeter testified that, at the time of his investigation the
machine had two warning labels on it. The first warning was contained on a
sticker regarding the operation of the machine and warned the user not to place
any body parts within close proximity. There was a second warning label in
Maksymick, the civilian vocational instructor at Wyoming, testified that he
began working for the Department of Correctional Services (DOCS) in 1984, and
one year later came to Wyoming as the first vocational instructor in the new
Maksymick credibly testified that it was his custom and practice to orientate
every new inmate by reviewing the shop rules, by walking around the shop, and by
advising each new inmate that he could not use any machine until he had been
trained on it and Maksymick had given permission. According to Maksymick, he
would have orientated Claimant and reviewed with him all of the rules set forth
on Exhibit D, including the specific rules about not operating equipment without
the permission of the instructor. By custom and practice, he would have asked
Claimant if he understood the rules and if he had any questions. Typically, at
the end of the orientation, the inmate and Maksymick would both sign the safety
rules, and here both Claimant and Maksymick did so (Exhibit D).
Claimant's first assignment in the vocational shop was shielded metal arc
welding. This was the same assignment given to every new inmate. Once the new
inmate became proficient with arc welding, he would then be moved up to a new
area which could include use of the ironworker. According to Maksymick,
Claimant never progressed out of the arc welding assignment and was never
instructed in the use and operation of the ironworker. If he had progressed
and/or been trained on the ironworker, it would be indicated on Claimant's
Education Record (Exhibit C). There were no such notations, according to
On more than one occasion prior to this incident, Maksymick had observed
Claimant in the vicinity of the ironworker. On those occasions, Claimant would
express interest in using the machine. According to Maksymick, he advised
Claimant that he first had to complete arc welding, and then be trained on the
ironworker, and finally obtain Maksymick's permission before he could use the
machine. About fifteen to twenty minutes before this accident occurred,
Maksymick testified that he saw Claimant and Perez by the ironworker. Maksymick
approached them and gave Claimant a direct order to stay away from the
ironworker because he was not trained on it.
Maksymick testified that an inmate, like Bienvenido Perez, who had been trained
on all of the equipment in the shop and who had proven to be proficient in all
areas of the shop could be designated as a teacher's aide. However, teacher's
aides were not authorized to instruct inmates on the use or operation of a
particular machine. It was Maksymick's custom and practice to personally train
each inmate in the use of a machine unfamiliar to that inmate. If an inmate was
trained by Maksymick on a particular machine, he could operate that machine only
if he had Maksymick's permission, and a teacher's aide could oversee the
About fifteen to twenty minutes after giving Claimant a direct order to stay
away from the ironworker, Maksymick heard a commotion with a lot of inmates
yelling. At the time, he was seated at his desk near the front door of the shop
and was on the phone. Fearing that a fight might be occurring, he ran out into
the hallway to get the correction officer who was stationed at a desk at the end
of the hallway. Immediately after he approached CO Koch in the hallway and told
him that there was a problem in the shop, five or six inmates came from the shop
into the hallway with Claimant who was holding his hand. Perez advised him that
Claimant had used the ironworker and smashed his hand. This was the first time
that Maksymick learned that an inmate had been injured.
Because he did not witness the accident, Maksymick asked Perez what had
happened and prepared an accident report (Exhibit I) based on the information
supplied by Perez. Both of them then signed the report.
Maksymick testified that the ironworker was purchased for the Wyoming welding
shop in 1985. He averred under oath that from the time the machine was first
purchased until April of 1999, when he left on a disability leave, the
ironworker never had a guard or shield for the die on which Claimant's hand was
positioned at the time of the accident, and there never were any stickers for
the machine instructing a user where or where not to place his hands.
Maksymick denied ever telling Perez to be especially careful using the machine
because it was missing a guard, a direct contraction of Perez's assertions.
Regardless, according to Maksymick, there never was a guard or shield.
Maksymick did testify that he instructed the inmates in the shop who were
authorized to use the machine how to properly use the ironworker and to keep
their hands away from any moving parts to avoid injury.
Claimant alleges that Defendant negligently failed to train, supervise or warn
him of the dangers of the ironworker, and otherwise failed to properly maintain
the machine. It is well settled that the State has a duty to provide an inmate
who is directed to participate in a work program with reasonably safe machinery
and adequate warnings, instruction and supervision for the safe operation of
that machinery (
Callahan v State of New York
, 19 AD2d 437, affd
14 NY2d 665;
Palmisano v State of New York
, 47 AD2d 692; Oakley v State of New
, 38 AD2d 998 affd
32 NY2d 773).
The evidence here establishes that Claimant was trained to perform the task
that he was directed to do, arc welding. He was not trained on the proper use
or operation of the ironworker because he was not authorized to use that
machine. According to the shop's procedures, an inmate had to become proficient
with arc welding before he could be authorized and trained to use other
machinery in the shop, including the ironworker. The evidence established that
Claimant had not progressed beyond arc welding during the three months he had
been at Wyoming and he had been cautioned to stay away from the
The mere happening of an accident, without some showing that the Defendant
breached a duty of care to Claimant, does not give rise to liability (
Fitzgerald v State of New York
, 28 Misc 2d 283). Here, the Defendant had
no duty to train Claimant on a machine he was not ready to use nor authorized to
use. Furthermore, it did not undertake the task of even attempting to train
him. Claimant's cause of action alleging negligent training must
Claimant's theory of negligent supervision also must be dismissed. He
generally argues that when a group of male prisoners are assigned to a room full
of machines, it is foreseeable that inmates will try to use the equipment. In
essence, Claimant would require the Defendant to provide unremitting supervision
of all inmates in every facility because at any moment any inmate could decide
to use any machine with or without training or authorization. The Defendant is
not and cannot be an insurer of inmate safety (
Mochen v State of New York
, 57 AD2d 719); nor is it required to provide
unremitting supervision (see
, Leibach v State of New York
AD2d 978; Oakley v State of New York
, 38 AD2d 998, supra
32 NY2d 773). Here, Claimant was injured while using a machine upon
which he had no instruction, had not previously used, had no authorization to
use, and had been counseled by both Maksymick and Perez not to use. Moreover,
Claimant was injured immediately after activating the ironworker for the first
Under these circumstances, I conclude that Claimant has failed to meet his
burden of proving that the supervision provided was inadequate, whether or not
Maksymick was actually in the shop at the precise moment Claimant was injured
Flaherty v State of New York
, 296 NY 342; see also
, Oakley v
State of New York
, 38 AD2d 998, supra
Claimant additionally argues that Defendant failed to properly maintain the
ironworker in a safe working condition and failed to properly warn Claimant of
this condition. During trial, Claimant was adamant that the ironworker was not
defective in any manner, and no expert testimony was offered to establish any
defect. Rather, Claimant argues that the Defendant negligently failed to
maintain the ironworker by failing to preserve a safety guard on or around the
die upon which Claimant's hand was resting at the time of the accident, and by
failing to preserve stickers warning him of the danger of placing his hand where
he did. While there was some limited evidence presented at trial regarding
guards and warning stickers, no evidence was presented establishing that the
ironworker upon which Claimant was injured came equipped with any guard or with
stickers containing Claimant's desired warnings. To the contrary, Maksymick,
who was at Wyoming when the vocational shop and the machine were initially set
up, testified that if guards or warning stickers had initially come with the
machine they would have been placed on the machine. No expert testimony was
offered to establish that this ironworker came equipped with a guard or that any
holes allegedly visible in the photographs (Exhibits 1 to 6) were to accommodate
a guard. The unrefuted testimony was that this machine never had a guard on the
die or warning stickers other than the ones seen in the photographs. Defendant
cannot be held liable, as Claimant proposes, for failing to preserve a guard or
warning stickers, the existence of which was never established.
Moreover, Defendant had no duty to warn Claimant of the danger of placing his
hand in the area of a die on a machine he was not authorized to use. And he
would not have been so authorized until he was properly trained to operate the
machine and where to place his hands. Furthermore, Claimant was aware that the
hydraulic arm would descend when he activated the foot pedal and hit the die
upon which his hand was resting. There is no duty to warn of a danger which is
known to the Claimant (
, DePasquale v Morbark Indus.
, 221 AD2d
Claimant has failed to meet his burden of proof on any of his causes of action.
Accordingly, the claim must be and hereby is dismissed. All motions not
heretofore ruled upon are now denied. Let judgment be entered