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
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
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
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
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
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
AD2d 437, affd
14 NY2d 665; see also, Maldonado v State of New
, 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
, 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
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