New York State Court of Claims

New York State Court of Claims

ATKINSON v. THE STATE OF NEW YORK, #2003-013-505, Claim No. 96282


Claimant proved by a fair preponderance of the credible evidence that the State neglected to provide him with a safe place to work when inmates were instructed to vertically stack metal sheets against a work table where Claimant was working, thus creating a dangerous condition. Claimant, however, ailed to make a prima facie case of medical malpractice, and that separate cause of action was 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:
Defendant's attorney:
Attorney General of the State of New York
BY: EDWARD F. McARDLE, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Noel Atkinson, alleges that he was injured in a welding shop accident on July 29, 1996, while an inmate at Cape Vincent Correctional Facility (Cape Vincent). Despite attempts by both counsel to arrange for his transportation, Claimant was unable to testify at trial as he was being detained by the Immigration and Naturalization Service (INS) awaiting a deportation hearing in Philadelphia, Pennsylvania. As a result, his pretrial deposition was admitted into evidence and constitutes his trial testimony (Exhibit 3). The trial of this matter was bifurcated and this opinion addresses only issues of liability.

On the day of the alleged accident, Claimant attended his vocational welding class which ran from approximately 3:45 p.m. until 6:30 p.m. He was one of about 18 students in the class and was one of the most experienced. Claimant had been in the class for some 16 months and had completed all introductory and advanced welding courses by the time of the accident. Claimant was considered by the welding shop civilian instructor, Joseph Avola, to be an outstanding student as indicated on ten monthly evaluations completed by Avola of Claimant's performance prior to the accident (Exhibit 1). In these reports, Avola's handwritten notes reflected that Claimant was an excellent student, a good helper and very stable.

Claimant and another experienced student inmate, Trevor Tomlin, had, at some time prior to the day of the accident, apparently been given the task of welding a mailbox. As a result, on the day of the accident, Claimant and Inmate Tomlin were allowed to proceed to a work table to assemble the necessary material for the project. While there is pointed dispute relating to the exact task Claimant was assigned to perform on the day of the accident, I find that the credible evidence supports the conclusion that Claimant was assigned the task of constructing a mailbox with Tomlin's assistance.

Before Claimant's class began, a load of approximately 50 4' x 8' 14-gauge sheet metal sheets, each individual sheet weighing around 60 pounds, arrived at the workshop. Inmates would generally bring these sheets into the shop where they would be cut to make two 4 ' x 4' sheets and then stored in a rack. On the day of the accident, while other inmates were bringing in the sheets to be cut, Claimant and Tomlin went about the task of laying out the material they would need to assemble the mailbox and were clamping the mailbox frame to the table. As Claimant and Tomlin worked around the table, the other inmates, at the apparent direction of Avola, stacked the uncut metal sheets vertically against the side of the table. At some point there were approximately 8 sheets stacked in this manner against the table where Claimant was working. It is without question that Claimant was aware of the existence of the stacked sheets as he began to weld the mailbox frame. In fact, it was not uncommon for the sheet metal to be stacked against the work table until it could be cut and stored in racks, and Claimant knew that this was the practice used as he had helped to stack the sheet metal on prior occasions.

Before the stacked sheets were cut, Claimant moved to the side of the table where they had been stacked. For reasons left unexplained and unknown, the sheet metal began to slide, striking the Claimant on the left side of his leg causing him to fall to the floor whereupon the sheet metal fell on his left ankle, fracturing it. According to Claimant, he did nothing to compromise the stability of the metal sheets and was just welding when they started to slide out. He attempted to stabilize the sliding metal sheets, but because of their weight, he was unable to do so.

Mr. Avola's account of the accident is dramatically different from that of the Claimant. Avola testified that two inmates carried one metal sheet at a time to the shear machine in the workshop. After each sheet was cut in half, inmates carried the cut sheets to where Avola was standing and he would hold them or brace them against his body until other inmates could take the sheets from him and stack them in the racks. The area where the cutting was being done was 20 feet to the right of where Avola was standing. Claimant and Tomlin were not assigned to carry either whole or cut metal sheets. Rather, they had been assigned to polish key clips which had been made in the shop and were to be sold to correction officers at the facility.[1]
Their work station was about 30 feet to the right from where Avola was holding the cut metal sheets. When Avola was holding some 10 to 15 of the cut metal sheets, he called for two inmates to come over and hold the load in order to allow him to supervise the other activities in the shop. He acknowledged that he had allowed the inmates cutting the sheets to get ahead of him and the two inmates who were putting the cut sheets into the racks.
As the two additional inmates were coming over to assist Avola as directed, Claimant (not one of the two called over) came from the left and behind Avola, and grabbed one of the sheets Avola was bracing, saying that they weren't that heavy. As Claimant pulled the stack in the direction of himself and Avola, the sheets began to fall on Claimant's knee and ankle. Avola testified that he had been bracing 15 sheets against his leg and knee and that he stepped out of the way as the sheets started to fall. He estimated that this load weighed approximately 450 pounds. Avola was aware that Claimant had cut his leg and ankle, but was not aware that Claimant had been seriously injured. In his Accident Report (Exhibit 12), Avola characterized the conduct of the Claimant as "showing off and goofing around" when he grabbed the sheet metal. Avola further indicated in this report that Claimant left his work station without having been instructed to do so, and testified at trial that Claimant had been acting in such a way that he was distracting other workers/inmates in the shop. According to Avola, this fooling around culminated in Claimant's grabbing the metal sheets causing them to fall.

It is beyond dispute that the State has a duty to exercise reasonable care in providing for the safety of inmates participating in work programs and to provide them with a reasonably safe place to work (
Palmisano v State of New York, 47 AD2d 692; Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665). While inmates who have been injured in correctional facilities are not entitled to the full range of protections afforded by the Labor Law of the State of New York, they are entitled to a workplace that is reasonably safe under the prevailing circumstances (Kandrach v State of New York, 188 AD2d 910). Moreover, the State has the duty to provide proper instruction and the duty to supervise inmates in the performance of their work (Oakley v State of New York, 38 AD2d 998, affd 32 NY2d 773).
In this case, there are two diametrically opposite versions of the incident which caused Claimant's injury. I did not have the benefit of Claimant's personal appearance at trial and, as a result, no opportunity to observe Claimant's demeanor or, for that matter, the demeanor of Claimant's witness, Trevor Tomlin, who was similarly unavailable for trial. I did, however, have the benefit of their deposition testimony and the trial testimony of Joseph Avola, their welding instructor. I was struck by the fact that Mr. Avola failed to present a consistent version of the facts. At the outset, Avola's monthly evaluations described the Claimant as an outstanding student in every respect, including the ability to perform his work in a safe manner. In fact, Avola thought so highly of Claimant that he used him as an aide to help instruct new inmates coming into the program in the operation and use of the various machines.

During his testimony, Avola indicated that at the time he was stacking the cut sheets against his leg, Claimant was in front of him and to his right where he could see him. It was never adequately explained how Claimant could have approached him on his left without Avola seeing him move from his designated work station. I am not unmindful that Avola was bracing significant weight on his knee and generally watching the entire shop, but that does not adequately explain how he failed to observe the Claimant move from the table he was at to approach him from behind. At trial, Avola changed his testimony on several occasions regarding the number of sheets he was propping up against his leg from the original 15 to 12, and finally to 10. In my opinion, Avola changed his testimony in this regard when he realized that, given his assertion of the weight of each cut sheet, it was stretching credulity to contend that he alone could safely have held such weight. Moreover, while the Court is aware of the time span from the date of the accident to the date of trial, Avola failed to note in his report of the accident the pertinent fact that he had been holding the sheets against his knee. Further, at trial Avola also did not indicate that another inmate was assisting him in holding the metal sheets until, on cross-examination, he was confronted with his deposition testimony. Once again, it was never adequately explained by Avola how Claimant was able to come around behind both Avola and this other inmate, and position himself between both Avola and the inmate, and then pull the sheets without being observed. Additionally, there was no explanation why Avola and this other inmate were unable to hold the load, even with Claimant pulling on a sheet.

Finally, given the exceptional performance evaluations given by Avola of the Claimant, together with the fact that no disciplinary action was taken against Claimant following the accident, I conclude that Avola's characterization of Claimant's behavior at the time of the accident as goofing or fooling around was gratuitous and not factual.

It is therefore my finding, after a careful and thorough review of the testimony and the exhibits, that Claimant's statement of how the accident occurred is the more credible and logical one. Claimant's version is supported by the deposition testimony of Inmate Tomlin (Exhibit 4) and by the Report of Inmate Injury (Exhibit A). 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 (
see, Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). In order to establish the State's negligence, Claimant must show that the condition which caused his injury was dangerous (Madrid v City of New York, 42 NY2d 1039), and that the State either created or had actual or constructive notice of the condition (Bernard v Waldbaum, Inc., 232 AD2d 596). Claimant has succeeded in doing just that by a fair preponderance of the credible evidence. The stacking of the metal sheets, pursuant to the orders of the vocational instructor Joseph Avola, in a vertical position against a work table which was being used by other inmates on a project assigned by Avola, created a dangerous condition. In my opinion, it was reasonably foreseeable that any jolt or movement on or near the table could upset the balance of these metal sheets and cause them to fall and injure anyone who happened to be at or near the table. Since Avola had instructed Claimant and Tomlin to use that table for their project, he should have been aware that the use of the table as a place to stack these heavy metal sheets created a dangerous and unsafe condition. I find that the Defendant created the dangerous condition which caused Claimant's injuries, had notice of its existence, and thus must answer in damages for the injuries sustained by the Claimant.
On the other hand, an inmate who fails to use ordinary care and pursues a dangerous course of conduct must bear some responsibility for his own negligence (
Carter v State of New York, 194 AD2d 967; Hicks v State of New York, 124 AD2d 949). In this regard, it is clear from Claimant's testimony that he was aware that the table he was using for his project was also being used to stack the sheet metal before it was cut. Considering the size of these sheets, they were easily observable as he came around the table. Claimant disregarded the potential danger he would create by moving around the table in the area where the sheets were stacked, as he could destabilize them, causing them to slide out and strike him. I therefore find that his actions played a direct part in causing his injuries. I find that the State's negligence was 70% responsible for the accident and the Claimant's negligence was 30%.
Finally, in his claim, Claimant generally alleged that the State failed to provide him with adequate medical care and attention. It has long been recognized that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons (
Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). Medical negligence is the appropriate theory of liability when the alleged negligent acts are readily determinable by the trier of fact based on common knowledge (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254). However, where the propriety of the treatment received is called into issue, as it is in this case, then the more specialized theory of medical malpractice is applicable (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
In a medical malpractice case, Claimant has the burden of proving a deviation from accepted standards of care (
Macey v Hassam, 97 AD2d 919), and must also establish that the medical provider did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, supra). To meet this burden, Claimant is required to present expert medical testimony in support of his claim (Kennedy v Peninsula Hosp. Center, 135 AD2d 788). No such expert testimony was presented and thus, Claimant has failed to establish a prima facie case of medical malpractice. Accordingly, Claimant's medical malpractice cause of action is dismissed.[2]
In sum, Claimant's medical malpractice cause of action is dismissed. I find the State to be 70% responsible for Claimant's injuries because of its negligence, and the Claimant to be 30% responsible for his culpable conduct.

All motions not heretofore ruled upon are now denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.


September 22, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1] At his deposition (Exhibit 2, page 19), Avola testified that Claimant and Inmate Morales were assigned to the task of polishing key clips. Inmate Tomlin was not mentioned by Avola during his deposition.
  2. [2]In his reply memorandum, Claimant admits that he did not pursue the medical malpractice portion of his claim at trial, and states that this claim is withdrawn. Because it was not formally withdrawn at trial, I address this cause of action in this decision.