New York State Court of Claims

New York State Court of Claims

CONIGLIO v. THE STATE OF NEW YORK, #2001-015-512, Claim No. 99238


Synopsis


Prison inmate, who was injured by object thrown from a lawn mower, is entitled to damages because the mower was operated without a safety chute and because correction officers failed to keep the required distance between operators of motorized equipment. The fact that claimant was not wearing protective eyewear is irrelevant, since he himself was not operating a machine at the time he was injured.

Case Information

UID:
2001-015-512
Claimant(s):
CHARLES M. CONIGLIO
Claimant short name:
CONIGLIO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99238
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
LELAND T. WILLIAMS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 26, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On August 27, 1998, Claimant Charles Coniglio, an inmate at Groveland Correctional Facility, suffered a laceration below his right eye and over the bridge of his nose when he was struck by a hard foreign object. The object had been propelled from the unguarded grass chute of a rotary mower operated by another inmate. Claimant was a regular member of a building and grounds maintenance crew, Buildings and Grounds Crew No. 6 (BGM 6), and he and another member of the crew were assigned to gather refuse from the dining halls at the facility and transport it to the compost pile. They usually started that task around 8:15 to 8:30 each morning and finished two hours later, at which time they would join the rest of BGM 6 wherever it had been assigned.

On the day in question, the crew was under the supervision of Correction Officer Diana Seiferth, a relief officer, and it had been sent to the residence of a Captain Krempanski, which was known as Clover House, to mow and trim the lawn. Because of his earlier duties, Claimant was late in arriving at the residence. Another work crew, BGM 13, was on the site under the supervision of Correction Officer Terry Murphy, who was also a relief officer, serving while the regular officer was on vacation. BGM 13 had started the mowing operation, and Claimant was assigned to operate a weed eater, his usual task when his crew was assigned to lawn details. Claimant testified at trial that he had never received training in operating this piece of equipment, and there was no documentary or testimonial evidence to refute this assertion.[1]

Before he began his work, Claimant was instructed by Correction Officer Murphy to wear safety glasses. Claimant refused because the glasses available were old and falling apart; they had rusted wire mesh; and the marred lens made it impossible for him to see clearly. He said that his own sunglasses were better at keeping dust and debris out of his eyes. Although a prisoner who refuses to comply with an order from a correction officer is usually written up and subject to a disciplinary proceeding, that did not occur in this instance. There was evidence, in fact, that Claimant was not the only inmate who failed to used the protective eye device that was available. Without wearing protective glasses, Claimant proceeded to the rear portion of the premises and commenced using the weed eater. As he turned around a corner of the house to enter the rear yard, he observed another inmate, Brian Maines, operating a lawn mower in the area. Claimant testified that as part of the training an inmate receives relating to use of lawn equipment, they are instructed to keep a specific distance between the operator of a lawn mower and themselves. While the record is not clear as to the recommended distance, there is some evidence that 25 feet is the closest that they were to be from one another. According to Claimant, the lawn on which they were working was not sufficiently large to permit the mower operator and himself to work at the recommended distance, and he estimated that he was approximately ten feet away from Maines. After Claimant completed trimming this area of the lawn, he shut off his weed eater and, within a matter of seconds, was hit in the face by an object.

After he was struck, Claimant immediately dropped the weed eater and fell to his knees. The impact had shattered his glasses and opened a gash under his right eye and over the bridge of his nose. At first he was unaware that he had been hurt and was starting to go back to work when he realized that his hands were covered with blood and saw concern on the faces of Maines and Correction Officer Seiferth. He was taken to the prison infirmary by Correction Officer Murphy and, after about an hour, moved to an outside hospital, where he received stitches and other emergency medical treatment. He was discharged from the hospital on the same day.

Claimant was unaware of what had struck him and assumed that it was a metal rod. He reached this conclusion, he said, after Maines showed him a rod and stated that he (Maines) thought this was the object that had been thrown. The rod was described as being approximately six to eight inches long and having the diameter of a pencil. Maines later said that it was turned over to Byron Ball, the facility's Fire and Safety Officer who investigated this accident. The metal rod could not be located during discovery in this action.

Correction Officer Murphy testified that he was working as a relief officer in charge of BGM 13. His crew had arrived at Clover House and was clearing the lawn area of furniture, toys, and other objects by the time that Claimant arrived. As he recalled it, no mowing had started as yet, although the mowers were being prepared for use. When Claimant arrived for his assignment, Murphy told him that his personal eyewear was not allowed, and he offered Claimant a pair of protective glasses. Claimant refused to use the protective glasses, but Murphy did not write out a disciplinary report.

Murphy stated that he and Correction Officer Seiferth were about 30 feet away from the area where the accident occurred. He observed Claimant go to his knees but heard no unusual sound prior to his fall. When the officers went to him, Claimant was covering his face with his hands and stated that he had been hit in the face with an object. After noticing the blood, Murphy obtained a wet cloth from someone inside the residence and applied it to Claimant's face. He then took Claimant to the infirmary. Upon his return, Murphy met with Byron Ball and the two of them went over the area in an effort to determine what had struck Claimant. The only items they found were a peach pit, one-half of a rubber super ball, and a rubber jacks piece
. Murphy testified that he was never informed that Claimant was struck by a piece of metal and he never saw any metal piece during his search of the area. Because Claimant had not known what struck him, Murphy concluded that the object must have been the peach pit, which came from a nearby peach tree and was one of many that were lying on the yard.
Murphy and Ball also examined the mower that Maines had been using and the weed eater that had been used by Claimant, to rule out the possibility that something from either machine had broken off. He recalled that the chute on the mower was in place and intact. Murphy estimated that the distance between the mower and Claimant's location when he was hit was between 10 and 15 feet. He stated further that inmates are instructed to keep at least 20 feet between themselves and other personnel when they are operating equipment like the mower or the weed eater.

Correction Officer Seiferth also testified on behalf of Claimant. She stated that her crew, BGM 6, arrived at the location before BGM 13 in order to clear the lawn. The lawn was not raked and no effort was made to remove the many peach pits lying on it. Instead, her crew merely removed lawn chairs, a picnic table and chairs, and a croquette game (which was in its carrier, not scattered around) prior to starting with the mower. She stated that at the time of the accident, she and Correction Officer Murphy had been conversing and were faced away from the lawn. She heard a noise "like a shot or a bang" in addition to the normal sounds of the work being done, and, within seconds, they were told that Claimant was hurt. When she walked over to him, she was unaware of the severity of his injury but once she saw the blood flowing from the wound, she became very upset. Seiferth was unable to help after that, and Correction Officer Murphy took over. Seiferth later looked over the ground near where Claimant had been standing and observed many peach pits. She also indicated that she did not check to see if those workers who were required to wear eye protection were, in fact, doing so.

Brian Maines, who had operated the lawn mower, testified that on the day in question he had been assigned to BGM 13 at Clover House and started mowing before Claimant arrived. Prior to starting the mowing, the lawn had been cleared by inmates, without any supervision from the officers, who were standing 20 to 30 feet away from the work detail. Maines stated that he was using the Snapper mower that he normally used, and he testified with certainty that this mower was not equipped with a safety guard or chute. He saw Claimant using the weed eater but did not acknowledge his presence until he saw him go down onto his knees. He knew that Claimant had been injured because he saw blood on his hands. Maines alerted the correction officers to the accident and, while they attended to Claimant, he looked around the area to see if he could find the object that had hit Claimant. He saw a round six- to eight-inch piece of metal which he believed caused the injury and gave it to Correction Officer Ball, who had come to investigate the accident. Maines was aware that Claimant had not been wearing safety glasses and stated that he, also, had refused to wear the only ones available because they were rusted and so scratched that it was hard to see out of them.

Applicable Law

When inmates are directed to participate in prison work programs, the State owes a duty to provide a safe workplace, with reasonably safe equipment, and to give adequate warnings and instructions for the safe operation of equipment (
Martinez v State of New York, 225 AD2d 877; Kandrach v State of New York, 188 AD2d 910; Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665). Thus, if a safety device on a piece of equipment is broken or removed and is not replaced, the State can be found to be negligent and liable for resultant injury of the type the device was intended to forestall, even if the precise chain of events leading to the injury could not have been foreseen (Kandrach v State of New York, supra, at 913). On the other hand, the mere happening of an accident carries with it no presumption of negligence on the part of the State (Fitzgerald v State of New York, 28 Misc 2d 283; Richards v State of New York, 205 Misc 3). Labor Law provisions relating to worker safety do not govern relationships and duties between the State and inmate or patient workers in its institutions, but they may provide a standard of care applicable to the State in a common law action for negligence (D'Argenio v Village of Homer, 202 AD2d 883; Fitzgerald v State of New York, 28 Misc 2d 283, supra; Beale v State of New York, 46 NYS2d 824, 826 [Ct Cl]; Lee v State of New York, 187 Misc 268).
Where an inmate fails to use ordinary care and pursues a dangerous course of conduct, he or she must take some responsibility for their own negligence (
Carter v State of New York, 194 AD2d 967, 968; Hicks v State of New York, 124 AD2d 949, 950). Disregarding instructions as to the proper use of dangerous machinery may be a contributing, although not superceding, cause of an inmate's injuries (id, at 949-950; see also, Kandrach v State of New York, 188 AD2d 910, supra). For the injured party's actions to be considered a superseding cause, his or her conduct must be reckless (i.e., in conscious disregard of a fully appreciated risk), not merely negligent (see, Kriz v Schum, 75 NY2d 25, 36-37). Claims have been dismissed where an inmate has refused to use proper safety equipment that is available or to call a supervisor's attention to the fact that such protective equipment has become unusable (Maldonado v State of New York, 255 AD2d 630; McLoud v State of New York, 237 AD2d 783, 785).
Analysis

Claimant places great emphasis on the fact that he was not provided with appropriate protective eyewear, apparently in violation of a facility policy which states, "inmates are to wear eye and ear protection while using motorized equipment." The purpose of this policy, shown by its very wording, is to protect the operator of the equipment from eye injury related to use of
that equipment. If Claimant had been struck by an object thrown up by the weed eater, which he himself was operating, this policy might be relevant. He was not injured in that fashion, however, and in fact, had turned off his machine and could have legitimately removed any protective gear when he was struck. Thus, the situation here is quite different from those presented in Maldonado (supra) and McLoud (supra), where inmate workers without protective eye gear were injured by debris flung up as a result of their own work.[2] For liability to be imposed because no safety equipment was provided or equipment provided was defective, the injury must be of the type that the equipment or device was intended to prevent (Kandrach v State of New York, 188 AD2d 910, 913, supra). Consequently, in the instant claim, the State cannot be liable on the ground that it failed to provide workable safety equipment, because the equipment was not designed to protect against the type of harm that Claimant suffered and because, even if it had been provided, Claimant would not have been required to wear it at the moment he was hit. By the same reasoning, Claimant's refusal to wear the equipment cannot absolve the State from responsibility for this injury.
There appears to be no dispute that the object which injured Claimant, while unknown, was something that was projected in his direction by the lawn mower which Maines was operating. The critical considerations, therefore, are whether the lawn mower was in proper operating condition, whether the area was properly cleared before mowing began, and whether there was a violation of some policy or practice to maintain a certain distance between a lawn mower in operation and other persons.

As counsel for Claimant notes, "the phenomenon of thrown objects in connection with rotary-powered mowers [is] well recognized" (
LaPaglia v Sears Roebuck & Co., 143 AD2d 173, 176). Brian Maines testified that the mower he was using did not have a chute guard on it. He was aware of this omission, he stated, because he most often used the machine to mow around ditches, a job with which the chute guard interferes. Correction Officer Murphy, on the other hand, testified that when he inspected the lawn mower after the accident, the exit chute was in place. I do not doubt that both witnesses were testifying truthfully to the best of their recollection. It was apparent, however, that Murphy had not focused on this aspect of the event -- he was looking for pieces that might be loose or broken off -- and that he was not familiar with the machine in question. Maines, on the other hand, was most familiar with this particular machine, could identify it in detail, and had used it on a number of occasions. Accordingly, I find that the lawn mower that was being operated by Maines was not equipped with a safety guard chute.
With respect to clearing of the area prior to mowing, there was no evidence or expert testimony from which I could determine whether, in the normal course, it would be negligent to leave "numerous" peach pits on a yard that was going to be mowed by a power mower. To make such a determination, I would have to have testimony or other information about the intake ability of the mower and the provisions within its mechanism to prevent objects of that size from being ejected. I think it is unlikely that such careful raking is required, as all witnesses agreed that there were a large number of peach pits lying around, and Maines testified that he had mowed that same yard, with the same mower, on at least three prior occasions. As to whether the metal rod should have been cleared away, one can only speculate about whether it existed, whether it was the object that injured Claimant, and why it was not removed. Liability cannot be based on mere speculation.

Although no one identified the specific policy or regulation, several witnesses acknowledged that inmates operating power equipment such as the lawn mower and weed eater were to maintain a certain distance from others. As indicated above, I conclude that that distance was approximately 25 feet; certainly it was greater than the 10 or 15 feet space between Claimant and Maines. Both inmates and correction officers, even relief officers, were aware of this requirement and it would have been possible for any of them to judge simply by looking to determine whether there was compliance. If, as Claimant suggests, the yard was not large enough for the requisite distance to be maintained, the logical remedy is to have mowing or weed eating completed before other nearby work was performed.

I hold, therefore, that the State was negligent in allowing the lawn mower to be operated without a safety chute and, in addition, that the correction officers were negligent in their supervision of the work project because they did not enforce the distance requirement. On the latter ground, Claimant must also bear some responsibility for the accident. He was aware of the requirement that a certain distance be maintained between the operator of a power machine and he knew how far away he was from the mower. There is no reason to believe that either of the correction officers would have been unwilling to listen to his concerns if he pointed out the problem. In fact, in light of Correction Officer Murphy's response when Claimant explained why he was refusing the proffered eyewear, there is every reason to believe that they would have been attentive. In any event, he did not make any objection. I find that Claimant must bear 40 percent responsibility for his injuries.

There is no dispute about the extent of Claimant's injuries. He undoubtedly experienced pain at the time of the accident and later when 16 stitches were taken. It appears that recovery was uncomplicated after that, but it was inevitably painful and Claimant has a permanent facial scar. I determine that reasonable compensation for these injuries are $16,500.00 for past and future pain and suffering and permanent disfigurement. When this is amount is reduced by 40 percent, Claimant is entitled to an award of $9,900.00.

All motions not previously ruled upon are hereby denied.

Let judgment be entered accordingly.


October 26, 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]After an inmate completes training on a piece of machinery, a form is completed by the instructor and signed by the inmate to certify that the inmate has received all the instructions required in the operation of the machine.
  2. [2]As noted above, the State was held not liable in those cases because the workers had, on their own, refused to use or removed the protective gear.