New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2002-032-509, Claim No. 102727


Claim for personal injuries suffered in a prison fire is dismissed upon claimant's failure to prove that the State was negligent in either preventing the fire or in improperly attempting to put out the fire.

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:
Sivin & Miller, LLPWilliam C. House, P.C., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
February 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injuries, based on allegations that the State's negligence was responsible for burns claimant received in connection with a prison dormitory kitchen fire, is dismissed following trial of the issue of liability. Claimant failed to prove that the acts of State employees were negligent.

On August 14, 1998, at approximately 4:30 P.M., claimant Ray A. White ("claimant") was watching television in the recreation room of A Dorm at Altona Correctional Facility ("Altona"). Claimant was sitting near the entrance to the kitchen which was adjacent to the recreation room. He could see into the kitchen both from his chair and through a picture window in the wall separating the recreation room from the kitchen. Another inmate, known as DiFabrizio, was attempting to cook calzones in the kitchen. He had placed approximately two quarts of cooking oil into a large pot and placed the pot on one of the four burners on the electric stove so that the oil could boil.

According to claimant, there were certain utensils in the kitchen that day including a large tong, a cooking spoon, a pot cover sitting on the counter, and the cooking pot. Also in the kitchen were a refrigerator, garbage cans and a sign that read: "Inmates not allowed to leave cooking unattended." There was no sink in the kitchen, and inmates used the slop sink in the recreation room to clean their dishes. According to the officers on duty that day in A Dorm, Correction Officers Edward Hicks ("Hicks") and Paul S. Rock ("Rock"), there was no pot cover in the kitchen.

At some point after placing the pot on the burner, inmate DiFabrizio went to watch television in the recreation room. According to claimant, Correction Officer Rock then told inmate DiFabrizio to watch the pot in the kitchen and DiFabrizio went back into the kitchen. Later, however, he "snuck out" again when Hicks and Rock were meeting by the officers' station in A Dorm. The officers' station was located behind another picture window, in a wall that overlooked the recreation room. This wall was directly adjacent to the wall that held the kitchen doorway and, further along, an entranceway leading outside to a small concrete pad (Tr, 123). There were two fire extinguishers near the officers' station: a red one containing carbon dioxide and a silver one containing water. According to Correction Officer Dale Meron, who served as the inside groundsman responsible for reporting about the fire after the event, the red one is the one to be used for grease fires.
While inmate DiFabrizio was watching television, another inmate yelled: "Hey, your pot is on fire. Go get your pot." According to claimant, the flames stemming from the pot were as high as the ceiling. Inmate DiFabrizio ran back into the kitchen and picked up the pot with his bare hands. According to the testimony of Correction Officers Hicks and Rock, an inmate told them that there was a fire in the kitchen. Correction Officer Hicks immediately went to the kitchen, while Officer Rock testified that he grabbed the red fire extinguisher before proceeding to the kitchen. When the officers saw inmate DiFabrizio holding the pot with his bare hands, they gave him a direct order to put it down and he complied.

There was disagreement among the witnesses about which fire extinguisher was used and how it was used. Correction Officer Rock testified at trial that he pulled the pin on the red fire extinguisher and sprayed the base of the pot, not the flames. Claimant maintained that Rock had the silver fire extinguisher with him, the one containing water, and that he sprayed that liquid directly onto the fire. Claimant further stated that Correction Officer Hicks then came running into the kitchen with the red fire extinguisher and said to Rock: "You used the wrong fire extinguisher". Correction Officer Hicks testified during direct examination that Rock sprayed water at the bottom of the pot. On cross-examination and upon a question from the Court, however, he clarified that Rock was using the red fire extinguisher. At trial, Correction Officer Meron indicated that he replaced only the red fire extinguisher because that was the only one that had been dispensed.

There is additional confusion about what happened next. Claimant maintained that when Correction Officer Rock
sprayed the fire with the silver fire extinguisher, the fire reignited each time. Correction Officer Rock claimed that he sprayed the base of the pot with a five to ten- second blast from the red fire extinguisher and that the flames went out, although the pot was still smoldering. Officer Hicks stated that he first tried to smother the pot with a garbage can cover. Whenever he lifted the cover, however, the flames flared up again. He said that Correction Officer Rock then sprayed the base of the pot but did not succeed in putting out the fire.
When the fire first started, according to claimant, the inmates gathered of their own accord in the TV area of the recreation room, near the kitchen. As that area began to fill with smoke, however, there was some panic and they were evacuated out of the room. "Rock came out and told everybody to get outside, stand in front of the entrance and don't move" (Tr, 39). About thirty to forty inmates began running and pushing to get out through the entranceway located on the same wall as the doorway to the kitchen. Claimant described the door of this entranceway as being big enough that two people could walk through it at the same time. Nevertheless, he was at first unable to move because of the other inmates and then, barely able to see through the thick smoke, he began to slowly move toward the entranceway. As he crossed the threshold, he heard someone yell: "White, look out!". Claimant stated that he then turned to his right and saw Correction Officer Hicks pushing a burning pot with a broom. The fire shifted and caught claimant's shirt collar (Tr, 43-44). "I panicked and I tried to put it out, and I threw sand on the fire" (Tr, 44). Claimant grabbed the sand from a cigarette butt can that was holding open the entranceway door. When he threw the sand at the fire, there was a hissing, puffing sound and the hot grease then shot up on Hicks, claimant and Rock.

According to Correction Officer Rock, as soon as the flames were out in the pot, smoke began to rise. He asked Correction Officer Hicks for his "bit key" so that he could evacuate the inmates. He then directed the inmates to go through the side wall door, past the officers' station, and through the sleeping quarters containing the inmates' cubicles (Tr, 114-115). He then unlocked that exit door with the key. After the inmates were out, two to three minutes later, he went back to the kitchen area and found that the pot was still smoking but that there were no flames. Correction Officer Hicks then hooked the pot with a push broom and started to drag it into the recreation room. Correction Officer Rock checked around that room to make sure there were no inmates in the TV area of the recreation room adjacent to the kitchen doorway and outside entranceway (Tr, 117). He then followed behind Correction Officer Hicks, who was dragging the pot from the kitchen, through the recreation room area and to the entranceway's open door. As they reached the threshold, Correction Officer Hicks moved around the pot and began pulling it. The pot reignited and suddenly smoke filled the air and Correction Officer Rock felt a body lying against him (Tr, 124). At the time Rock could not see who it was, but he was later told by Officer Hicks that it had been the claimant. Although Rock still held the fire extinguisher, he did not use it, and once he righted himself, he observed that the fire was out. At that point, outside help arrived in response to an alarm previously sent by Correction Officer Hicks. When asked at trial where the body (presumably claimant's) had come from, Correction Officer Rock said that he had no idea, that he had not been aware of anyone standing either to his right or his left right before the pot reignited.

Officer Hicks testified that after the fire was put out by the fire extinguisher, it rekindled. He went into the recreation room to get a broom, went back to the kitchen and then "head[ed] out to the rec room and [had] everybody move the tables and chairs to one side and [he] pushed it out with the broom" (Tr, 169). With the push broom, he successfully dragged the pot through the recreation room, through the entranceway, and onto the cement pad located outside. He then went around to the other side of the pot and, facing the building, was trying to use the broom and his foot to pull the pot toward him while guiding it down a four-inch step-off. It was at that point that claimant came through the doorway from the recreation room, reached down into the butt can, and threw the sand on the pot, splattering the grease on both claimant and the officers. Initially Officer Hicks testified that there were no flames in the pot when claimant threw the sand, but he acknowledged on cross-examination that the report he wrote shortly after the incident (Exhibit 3) indicated that the fire had "flared up again" just before sand was thrown on it (Tr, 181). He later said that he could not recall whether there was fire or only smoke (Tr, 186). Correction Officer Hicks also testified that he had asked claimant why he had thrown the sand and that claimant responded that he did not know.

Documentary evidence relating to this event is sparse and not altogether consistent with the trial testimony. On the Accident Report relating to claimant's injuries (Exhibit C), claimant is quoted as saying "The pot was on fire, the officer and me [sic] brought it out and I threw dirt on it and it splattered on us." In an interdepartmental memorandum written the day of the incident, Correction Officer Hicks indicated that after they were called to the scene and Correction Officer Rock sprayed the pan with the fire extinguisher the following occurred:

"I . . . dragged the pan across the rec room to bring it outside. At this time it flared up again and [claimant] threw sand on it which splattered grease all over myself and Officer Rock and Inmate White. Sgt. Douglas notified. Dorm was evacuated due to smoke in dorm.

(Exhibit 3). In a markedly similar statement Correction Officer Rock provided the following account in his August 14th memorandum:
I extinguished the flames in the pot. Officer Hicks then grabbed a broom and started to drag the pot out of the rec. room door, when it restarted. Then [claimant] threw sand in the pot causing the hot grease to splatter on Officer Hicks, myself and inmate White. Sgt. Douglas was notified. Dorm area was cleared of inmates due to the smoke.

(Exhibit 1) It should be noted that at trial, Correction Officer Rock acknowledged that he did not have independent knowledge of claimant's identity or actions but was relying on Officer Hicks for most of this information. More information about movement and location of the inmates during this time was contained in a misbehavior report that Correction Officer Rock made out against inmate DiFabrizio (for starting a fire, creating a disturbance, and failing to report an injury) (Exhibit B). In this account Rock stated:
After the flame had been extinguished [by the fire extinguisher] Officer Hicks dragged the pot of hot grease to the rec. room door. [Meanwhile] all inmates in dorm sleeping area, rec. room were coming out to see what was happening and making all sorts of loud comments and noise. Until they were given a direct order to clear the dorm area. [Inmates] were brought back on dorm area and announcement was made at 4:48 P.M. that if anyone else had been splattered with the hot grease was [sic] to report to officer's station at this time.

Notably, Correction Officer Rock made no mention in this account of obtaining a key and leading the inmates through the sleeping quarters to an exit, which he then unlocked. In fact, he indicates that inmates were in the recreation room and, at some undefined point, were told verbally to leave the dorm area.
Before the fire started, Correction Officers Hicks and Rock made several security checks and "did rounds" of the Dorm by walking thorough the various areas to make sure that all was well. Correction Officer Rock testified that he came on duty at 3:00 P.M. and made a security round of the housing area within the first half-hour.[1]
At that time, some inmates were in the kitchen cooking and, smelling burning grease or oil in the air, he assumed that the grease was too hot and told the inmates to turn the stove down (Tr, 97). He did not recall who these inmates were. After making the round, which took five to ten minutes, he returned to the officers' station. At approximately 3:45 P.M., Correction Officer Rock went to the entranceway door leading outside and checked out those inmates who were leaving Dorm A for programs or other activities. He again returned to the officers' station, where he remained until 4:20 P.M., when he made another round. This time he did not notice or smell anything unusual. He did observe that there were some inmates in the kitchen. The fire broke out around 4:30 P.M., shortly after he returned to the officers' station.
On the day in question, Correction Officer Hicks arrived on duty in A Dorm at 3:06 P.M., and his log entries (Exhibit D) confirm that a fire safety check was performed at 3:10 P.M. and that inmates were permitted to leave for the yard or gym at 3:15 P.M.. After 3:15 P.M., Correction Officer Hicks made a round of the housing area. He recalled seeing five or six inmates in the kitchen, although only two or three of them were cooking (Tr, 161). He returned to the officers' station at approximately 3:35 P.M. and remained there until an inmate notified them that there was a fire.

Applicable Law
As a landowner, the State has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition (Basso v. Miller, 40 NY2d 233 [1976]). This duty applies to the State's responsibility for its correctional facilities (Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]). Defendant is not, however, an insurer of the safety of those within its facilities, and negligence may not be inferred solely from the happening of an accident (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001]; Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]; Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]). For liability to ensue, it must be established that the State breached a duty of care owed to the claimant and that the breach of duty proximately caused the claimant's injury (Basso v Miller, supra, at 240-241).
"Negligence is defined, broadly and generally speaking, as the failure to employ reasonable care--the care which the law's reasonably prudent man should use under the circumstances of a particular case" (McLean v Triboro Coach Corp., 302 NY 49, 51 [1950]). This "basic traditional negligence theory * * * necessarily takes into account the circumstances with which the actor was actually confronted when the accident occurred" (Bethel v New York City Trans. Auth., 92 NY2d 348, 353 [1998]). Consequently, where the actor is confronted by a sudden and unforeseen occurrence not of his own making, then the trier of fact must consider the reasonableness of any subsequent conduct "in the face of the emergency" (Palmer v Rouse, 232 AD2d 909, 911 [3d Dept 1996], quoting Rivera v New York City Tr. Auth., 77 NY2d 322, 327).
[I]t is common sense and good law that, when one is confronted with a sudden and unexpected event or combination of events which leave little or no time for reflection or deliberate judgment, this itself may be a significant circumstance which, realistically as well as conceptually, should enter into the determination of the reasonableness of the choice of action pursued***.

(Ferrer v Harris, 55 NY2d 285, 292-293 [citations omitted].)
In addition, with respect to fighting fires, in a case involving actual firefighters, the Court of Appeals held that under common-law negligence, "liability will not be imposed where the firefighter's conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect show poor judgment, but judgment nonetheless" (Kenavan v City of New York, 70 NY2d 558, 569 [1987]; see also Flynn v City of New York, 258 AD2d 129 [1st Dept 1999]).
Claimant contends that the State was negligent in any or all of the following instances: when Correction Officer Rock failed to investigate the odor of oil or burning grease on his first round; when Correction Officer Rock failed to observe any problem on his second round, although the oil must have been overheating since it burst into flame shortly afterwards; when Correction Officer Hicks failed to leave the garbage can lid on top of the flames so that the fire would be smothered; when Correction Officer Hicks decided to move the burning/smoking pot rather than leave it in place to burn itself out; and when Correction Officer Rock failed to go ahead of Correction Officer Hicks to make sure that the recreation room and entranceway were clear of inmates before the pot was brought in that direction.

There is no basis for concluding that either of the correction officers were negligent when they made rounds of the housing unit before the incident. There was no period of time when the kitchen was unmonitored for any extended period, and on the one occasion that Officer Rock became aware of an unusual odor coming from the kitchen, he took appropriate action. Counsel for claimant asserts forcefully that Correction Officer Rock must have smelled something out of the ordinary when he made rounds at 4:20 P.M., but the Court does not consider this to be self-evident.

As to negligence in the manner in which the fire was extinguished, the Court finds that the correct fire extinguisher for grease fires was used and declines to follow claimant's counsel in second-guessing every step made by the officers in response to the unanticipated threat. Perhaps the fire would have finally gone out if Officer Hicks had left the garbage can lid down longer, but perhaps not. Perhaps it would have been better to let the pot remain where it was on the kitchen floor, but perhaps that would have resulted in the floor beneath it or some piece of furniture catching on fire. A finding of liability "cannot be based upon conjecture or speculation and must fairly and reasonably exclude any other explanation" (
McCluskey v West Bradford Corp.,
177 AD2d 744, 745 [3d Dept 1991], lv denied 80 NY2d 753, citing Bernstein v City of New York, 69 NY2d 1020 [1987]). Furthermore, the actions of the officers in this instance would be protected by both the governmental immunity for discretionary actions relying on the exercise of judgment and the emergency doctrine.
In the Court's view, the central question in this case relates to inmate movement and how the inmates were evacuated from the area of danger. Claimant testified that he and approximately 40 other inmates were directed to leave the recreation room by way of the entranceway next to the kitchen. He also indicated that while they were going slowly toward and through the entrance, Correction Officer Hicks pushed the smouldering or perhaps flaming pot toward them, intending to take it through the same doorway. If this actually occurred, the officer's actions might well be so reckless and the product of such poor judgment that liability could result. Correction Officer Rock testified, on the other hand, that all inmates had been evacuated from the recreation room, in a totally opposite direction through an exit door behind the sleeping cubicles which had to be unlocked by him before the pot was ever brought out of the kitchen. He also testified that he looked and confirmed that there were no inmates in the recreation room when the pot was pushed through that room and out the entranceway door. If this is what occurred, certainly maximum precautions would have been taken and, in order to be injured, claimant would have had to evade the evacuation, hide so that the officers did not see him when they looked around the recreation room, and then rush to the entranceway and push himself into danger.

Neither of these accounts is particularly credible. Claimant's own contemporaneous statement was that he was working with Correction Officer Hicks to move the pot to the outside, and the Court is quite satisfied that no sane correction officer would ever direct a crowd of inmates through a doorway and then simultaneously attempt to push a flaming, or at least smouldering hot pot, in amongst them. If this had occurred, claimant would not have been the only inmate injured. Furthermore, if in fact claimant's shirt collar caught fire, it is simply incredible that his reaction would have been to attempt to put out the fire in the pot rather than the one on his clothing. As for Correction Officer Rock's account, it is totally unsupported by any of the contemporaneous documents, which imply that the evacuation occurred
after the injuries occurred and were necessitated by the smoke, not the danger posed by the pot. Correction Officer Rock's testimony is actually contradicted by his own contemporaneous account, made in the inmate misbehavior report (Exhibit B), which states that while the pot was being dragged through the recreation room to the outside, inmates were milling around and actually coming into the room before being given a direct order to clear the area.
Officer Hicks' testimony is the most believable and, moreover, is consistent with the impression given by all written reports of the event. While he was pushing, and then pulling, the pot from the kitchen to the outside, the inmates were milling around. Apparently they moved chairs and other furniture out of the way in the recreation room so that Correction Officer Hicks could bring the pot through. The evacuation, which by all contemporaneous accounts appears to have occurred after the pot had been taken outside, was to protect inmates from the smoke, not from the danger of the fire. In short, claimant was not forced to be near or in contact with the smouldering, flaming pot. He was not unable to get to a place of safety. He simply chose, perhaps in a good-faith effort to be of assistance, to insert himself into the matter. He was injured as a result of that choice and his unwise decision to throw sand into the pot.[2] Claimant has failed to prove by a preponderance of the credible evidence that the State was negligent in connection with the fire in which he was injured. Defendant's motion to dismiss, on which the Court reserved decision, is granted, and the Chief Clerk is directed to enter judgment dismissing the claim.

Let judgment be entered accordingly.

February 20, 2003
Albany, New York

Judge of the Court of Claims

[1] Correction Officer Rock's round was not noted in the log book kept at the officers' station (Exhibit D). Rock testified that, as he was the "B" officer, it was not his duty to enter such information (Tr, 97-98).
[2] If the State's actions were found to be negligent, it is possible that claimant's independent actions would be considered a superseding and intervening cause of his injuries (see, Kriz v Schum, 75 NY2d 25, 36-37; Krandrach v State of New York, 188 AD2d 910, supra at 914 [3d Dept 2001]). The question of causation does not arise, however, unless and until a prima facie case of negligence has been established against a defendant (Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 [1980]).