New York State Court of Claims

New York State Court of Claims

MOOD v. THE STATE OF NEW YORK, #2003-029-326, Claim No. 96183


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:
Michael F. Keesee, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Barry Kaufman, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 12, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury arises from an incident that occurred at Otisville Correctional Facility (hereinafter Otisville) on October 31, 1996. The trial was bifurcated and this decision deals only with the issue of liability.

Claimant testified that he arrived at Otisville on March 24, 1995. In April 1996 he was assigned to the "Grounds 1" crew. He testified that the grounds crew would mow the grass, shovel snow and pick up trash. He testified that he normally worked from 8:30 a.m. to 11:30 a.m., had an hour lunch break and worked in the afternoon from 12:30 to 2:30 or 3:00 p.m.

Claimant stated that during the six-month period prior to the accident, Correction Officer (hereinafter C.O.) Steven Turner was the supervisor of the grounds crew. He stated that C.O. Turner was a good officer and he never had any problems with him.

Mr. Mood further testified that on the morning of October 31, 1996, C.O. Turner told the grounds crew that they were not going to mow the grass that day because it was wet from the previous days' rain, that they were going to clean the area by the infirmary instead. C.O. Turner went into the infirmary and when he returned he was upset. He then directed the grounds crew to mow the grass. Claimant testified that he told C.O. Turner that the grass was too wet to mow and he would not mow unless he was given a direct order to do so, which C.O. Turner then gave him. Claimant then took a lawn mower from the shed and proceeded to mow in the area where he had mowed prior to that day. Claimant testified he was mowing across the hill (from side to side) as he was trained to do because it is not safe to mow up and down a hill. He testified that he went back and forth several times and as he was turning around he slipped and his foot went under the mower and almost cut his toe off.

At the conclusion of claimant's testimony, he rested his case. The State then made a motion to dismiss the claim for failure to prove a prima facie case. The Court denied the motion.

The State called C.O. Turner as a witness. He testified that he has been employed by the Department of Correctional Services for just over 20 years and is assigned to Otisville. He stated that he is the "grounds crew" officer and held that position in 1996. He stated that on October 31, 1996 he worked the 7:00 a.m. to 3:00 p.m. shift. On that date, his supervisor sent him and his grounds crew to clean up "slop" from a broken water line in the area in front of Housing Unit 122.

C.O. Turner testified that at about 10:15 a.m. claimant told him that he was tired of shoveling slop and he concurred with claimant's opinion. Because there were about 45 minutes left of work time before the inmates had to return to their housing units for the prelunch count, he told claimant and two other inmates to get lawn mowers and go out to mow. He said that claimant did not object to mowing the grass and never expressed an opinion about the condition of the grass or that it was dangerous to mow. The witness stated he told the inmates to mow the grass on the hill behind Housing Units 122 and 123 (see Exhibit C).

C.O. Turner identified Exhibit C as a photograph of the hill between Housing Units 122 and 123 where claimant was mowing. The photograph shows wheel marks from the mower on the grass going up and down the hill. The witness stated this is not the area where he told the three inmates to mow. He stated he told the inmates to go to the top of the hill, which is where the other two inmates mowed.

C.O. Turner stated that after claimant's accident he placed stakes in the grass, which are shown in Exhibit C, to indicate the area where claimant was mowing. He stated that the area by the stakes is a soft, boggy area. He said that in the period between April 1996 and the date of the accident, this area was not mowed because a weed whacker, rather than a lawn mower, is used when the grass is wet.

C.O. Turner testified that he trained members of his crew to let go of the mower's handle if they fell down while mowing. The witness stated that following the incident he spoke to claimant in the clinic and claimant told him that he did not let go of the mower because he didn't want the C.O. to be mad at him if the mower got damaged as this was one of the crew's better mowers. The C.O. stated that claimant told him that as he was pulling the mower up the hill he slipped and fell, pulling the mower over his foot.

C.O. Turner also testified that it is not his practice to issue direct orders to the inmates of his work crew and he denied issuing a direct order to claimant to cut the grass on the day of this incident.

The State also called John J. Driscoll, III, as a witness. Mr. Driscoll was employed as a C.O. by the Department of Correctional Services from January 16, 1978 until he retired on May 1, 2003. Mr. Driscoll stated that he became the Fire and Safety Officer at Otisville on January 22, 1995 and held that position on the date of claimant's accident.

The witness testified that when he was informed of the incident he went to the clinic to speak to claimant. Mr. Mood told him that he slipped and fell under the lawn mower while he was mowing. Mr. Driscoll stated that after he spoke to claimant he went to the area where the accident occurred. Mr. Driscoll's testimony was consistent with C.O. Turner's testimony that the wheel marks from the mower ran vertically up and down the hill and not horizontally across the hill.

Claimant asserts that the State was negligent in ordering him to mow the grass while it was wet constituting a dangerous condition of which the State was well aware.

Inmates participating in work programs during incarceration do not receive the protection 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 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; 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 York, 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, 878).
Claimant has the burden of proving the State liable by a fair preponderance of the credible evidence (see 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 also,
Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).
Upon review and careful consideration, the Court finds that the evidence in this matter supports C.O. Turner's version more than claimant's. The pictorial evidence is quite clear that claimant mowed the hill vertically rather than in the approved horizontal direction. Further, the Court finds that claimant was mowing the grass in an area other than the area where he was told to mow.

The State does not have a duty to provide uninterrupted supervision of its inmates, including those in a work program (
Colon v State of New York, 209 AD2d 842). In this case, the Court finds that the actions of Mr. Mood, which caused his injuries, were not condoned by C.O. Turner or any other facility staff and that adequate supervision had been provided.
Based upon the foregoing, the Court finds that claimant failed to meet his burden to establish that the State was negligent. The Court finds that the sole proximate cause of the accident was claimant's own negligence. The claim is hereby dismissed. All motions made at trial, upon which decision was reserved, are now denied. The Chief Clerk is directed to enter judgment accordingly.

November 12, 2003
White Plains, New York

Judge of the Court of Claims