New York State Court of Claims

New York State Court of Claims

VIZZINI v. THE STATE OF NEW YORK, #2004-013-522, Claim No. 104290


Case Information

JOEL VIZZINI The Court has sua sponte amended the caption to reflect the only properly named defendant herein.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant herein.
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: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on May 17, 2001 and arises out of an accident which occurred on July 19, 2000, while Claimant was an inmate at the Attica Correctional Facility (Attica). The trial of this matter was bifurcated and thus this decision addresses solely the issue of liability. Claimant alleges that the Defendant provided a defective scaffold for him to stand upon to perform certain work in the Attica laundry room.

Specifically it is claimed that there was a violation of Labor Law §200 and several provisions of 12 NYCRR 23, particularly section 23-5.18 as it applies to the mobile scaffold provided by Defendant for use by Claimant (see 12 NYCRR 23-5.18[b], [c] and [f]). As a consequence of these alleged violations, the scaffold collapsed and Claimant was propelled to the ground, whereupon he purportedly suffered serious injury to his person.

Claimant was and has been a model prisoner throughout his incarceration, and while at Attica he was designated as one of only a few 24-hour emergency electricians, a relatively prestigious status for an inmate. In that capacity, Claimant was allowed greater freedom within the facility, allowing him to go to various locations to perform repair work, troubleshoot electrical problems, retrofit old equipment, and install new equipment.

On the date of the accident he was sent to the laundry room to replace several fluorescent light bulbs that had either blown out or needed to be removed. Claimant went to the facility maintenance shop to collect supplies, tools, and a cart upon which the requisite material could be placed. He was joined there by fellow inmate Theodore Walker who was to assist Claimant that day. The two inmates took the cart with the tools and replacement bulbs to the laundry room where they were let in by Richard Trykowski, a civilian employee who was the laundry room supervisor.

The laundry room area was described as being rectangular in shape, approximately 50± feet by 70± feet, with a portion enclosed behind a secured fence which housed ladders, a scaffold and other equipment. This equipment was secured and generally locked off. In order to use the equipment, Claimant was required to get the permission of Trykowski or his assistant, who would unlock the door to the area as well as the chain securing the equipment. The ceiling had a height of 16± feet and the lighting fixtures hung from the ceiling and were 12± feet from the floor. The fluorescent light bulbs which provided the illumination for the laundry were 4 feet in length and enclosed in an implosion shield.

On the day of the accident Claimant requested and was permitted to use the mobile scaffold which was described as being 6± feet in height with a narrow deck area which was estimated to be some 45 inches in width. The stated reason for choosing to use the scaffold was its mobility and convenience, since Claimant would be able to reach the fixture from the platform and his assistant (Inmate Walker) would remain on the floor by the cart and provide the Claimant with the lights and any additional tools he might require.

While there was some discrepancy as to whether the scaffold was behind the secured fence or already out in the laundry area,[1] it is clear that Claimant had been given permission to use the scaffold either by Trykowski or John Nettman, his civilian assistant, and did not unilaterally select it. In any case, it is evident on this record that this particular scaffold had been used by civilian personnel in Attica for various purposes, including painting, as revealed in testimony as well as photographs (Exhibits 1 through 10 and those attached to Exhibit 13).

In order for Claimant to replace the defective fluorescent light bulbs, he intended to move the scaffold to the particular fixture, lock the wheels and then climb onto the scaffold platform by using the rungs on the side. He testified that he and his assistant moved the scaffold into place and locked the wheels by stepping on the wheel locks. He was certain that he had engaged the locks on his side and instructed Walker, his helper, to set (lock) the wheels on his side. At some point he and Walker placed the toe board (platform) on the highest level of the scaffold and Claimant then climbed to the top rung. Claimant testified that he had his right foot on the toe board and, as he attempted to place his left leg on the toe board, the scaffold began to wobble and spin, and fall out from under him. He then jumped away from the scaffold, trying to avoid falling on the laundry carts and ultimately landed on the concrete floor, causing him to suffer personal injury.

Claimant testified that when he chose to use the scaffold he was not aware that it lacked or was missing several significant components and learned this only after the accident. It was at this time that he was informed that the scaffold lacked (1) a set of cross braces on one side; (2) a ladder to gain access to the top of the scaffold; (3) a safety railing, and (4) pins which were required to secure the wheels after they were inserted into the legs of the scaffold. He reiterated that he had no idea as to what caused the scaffold to lose its stability and tip over. Since he had been given permission to use it by a civilian employee, he assumed that it was in a safe and working condition. On cross-examination Claimant acknowledged that it was he who wanted to use the scaffold and, after gaining permission to do so, he and his assistant put it in place and prepared it for use.

Richard Trykowski, employed as the civilian laundry room supervisor at Attica for 16 years, was on duty on the day of this accident and recalled letting the Claimant in on July 19, 2000. He did not witness the accident, since it was his practice to more or less "float" around the laundry facility to supervise the inmates working there. In addition to supervising inmates, Trykowski was also responsible for the safekeeping of the ladders and other equipment, which meant that when the equipment was not in use it was to be kept locked up in the secure portion of the laundry. He recalled that before Claimant arrived the civilian employees working on the steam pipes had used the scaffold in question earlier that day.

It was Trykowski's best recollection that the scaffold had not been placed back in the secured area when the civilian employees left, since they would be returning once they were able to get additional parts or returned from their break. While he did not recall giving permission to Claimant to use the scaffold, it was clear that Trykowski's assistant had the authority to do so, and indeed that he had given permission to Claimant for its use. Lest it go unstated, there is no factual question that when Claimant and Inmate Walker took the scaffolding to perform the assigned duties, they had been given permission to do so by someone who had the authority to grant permission.

Trykowski did not see the fall but did hear the noise and commotion caused by it and, when he went to the area, he saw Claimant lying on the ground and saw the scaffolding on its side. He then ordered that the scaffold be moved to a different location in the laundry. This was done before the Attica Fire and Safety Officer had an opportunity to observe or investigate the toppled scaffolding at the site of the accident. Unfortunately, Mr. Trykowski did not supervise its removal and thus was unable to testify regarding its condition after the removal.

He went on to testify that generally when equipment was not in use it was to be secured or locked up. He concluded that during work periods this practice was not followed if the person(s) using the equipment was merely going elsewhere to obtain material for use on the project and would be absent only for a short period. In the instant matter, he recalled that the civilian employees working on the steam pipes apparently did not secure the scaffold (behind the fencing) since they were going to be absent for just a short time. He noted as well that they did return sometime after the accident, but before the lunch break. He also reconfirmed that during this interim period Claimant had permission to use the scaffold for his assignment.

Correction Officer (CO) Thomas Durfee testified that he was the Assistant Fire and Safety Officer called to investigate this accident. He stated that he had received safety training from the State but not specific training regarding the safe use of scaffolds or on the use of heavy equipment. His report notes that he arrived at the laundry room at approximately 10:10 a.m. (Exhibit 13). He interviewed inmates Walker, Stevens and Diaz, with each stating that Claimant fell on a gray laundry cart and then to the floor as the scaffold gave out when he was on it. CO Durfee then took a series of photographs of the scaffold, inspected it, noted that there were no side rails around the platform area and the absence of pins to attach the wheels to the scaffold (Exhibit 13), and apparently concluded that the scaffold was not being used safely (see Exhibit 13, pg. 9, Cause of Accident). Conversely, however, my trial notes reflect that CO Durfee testified that he did not reach any conclusions as to what caused this accident.

Durfee's testimony at trial established that he would allow the use of equipment only if it was safe and he would remove from service any equipment he deemed to be unsafe, after personally inspecting it. When he conducted his investigation on the day of the accident, he assumed that the scaffold as he observed it was at the actual scene of the accident and that nothing had been touched. It was not until his deposition some years later that he first learned that the apparatus had been moved. It was his testimony that had he been aware that the scaffold had been relocated it would have changed his view as to the cause of the accident,[2] as he would have needed to be aware that the scaffold had been moved and that its condition may have been altered during this movement. He stated that he did not observe whether the wheels of the scaffold were locked when he first looked at the scaffold and only took notice of that fact during the course of his inspection. He was shown photographs he had taken of the scaffold wheels on the day of the accident and circled the locking apparatus on the wheels (Exhibits 4 and 9). While the photographs do not show the wheels locked, he acknowledged that since the scaffold had been moved prior to his arrival at the laundry he had no way of knowing the position of the locks at the time of the accident.

CO Durfee was present on February 9, 2004 when Claimant's expert inspected the scaffold at Attica and advised that the scaffold had been cleaned prior to the inspection. There is a stark difference in the appearance of the scaffold from the time of the accident to the date of the inspection (see Exhibits 1 through 9 and B through H). It was Durfee's testimony that the pictures taken by the expert did not fairly or accurately represent the condition of the scaffold on the day of the accident, albeit only to the extent that it had been extensively cleaned prior to the expert's inspection, but otherwise that it was in the same condition as on the day of the accident.

John Coniglio, Claimant's expert, had 30 years of experience in construction and scaffold safety and is a regular contributor of articles on construction safety to trade magazines. He was familiar with both OSHA and New York State workplace safety guidelines. I found him qualified as an expert to express his opinion.

He concluded that the scaffold, as used that day by Claimant and by extension by civilian employees fixing the steam pipes earlier that day, was unsafe since it lacked: (1) a cross brace; (2) a platform railing; (3) an attached ladder, and (4) pins to secure the wheels to the scaffold. He further opined that because this was a mobile scaffold it was narrower than a fixed scaffold and therefore needed greater stability. To that end he opined that it required it to be properly built or erected and that an additional cross brace was required to provide needed stability. In addition, a ladder was required in order to provide safe access to the user to the platform area. The presence of pins affixing the wheels to the legs of the scaffold would prevent them from becoming loose and would add greater stability should the scaffold begin to wobble.

In Coniglio's opinion, the lack of these devices was a violation of the New York State Industrial Code, 12 NYCRR 23, et seq. He specifically referenced Sections 23-5.18(b), (c) and (f), which refer to the requirements of a safety railing, a ladder, and cross bracing, and such violations were the cause of the accident. According to Coniglio, the lack of the second cross brace caused the scaffold to wobble as the Claimant attempted to mount the platform area and that led to the scaffold pitching over and falling to the ground, forcing the Claimant to jump, land on the laundry cart and then the floor, allegedly breaking his hip.

It is well-settled that an inmate is not an employee of the State, and 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. Accordingly, those portions of the claim alleging violations of the Labor Law are hereby dismissed.[3] However, that does not mean that an inmate cannot pursue a remedy under a theory of common law negligence (Lamp v County of Cortland, 294 AD2d 795, revd in part 98 NY2d 748; D'Argenio v Village of Homer, 202 AD2d 883; Fitzgerald v State of New York, 28 Misc 2d 283).

It is also 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). Inmates are entitled to a workplace that is reasonably safe under the prevailing circumstances (Kandrach v State of New York, 188 AD2d 910). The State owes a duty to its inmates to provide them with reasonably safe equipment when they are directed to perform work projects or participate in a work program and to properly warn and instruct its inmates in the safe use and operation of such equipment (Kandrach v State of New York, supra at 913). While Labor Law provisions relating to worker safety do not govern relationships and duties between the State and inmate workers in its institutions, 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, supra; Fitzgerald v State of New York, 28 Misc 2d 283, supra; Beale v State of New York, 46 NYS2d 824 [Ct Cl]; Lee v State of New York, 187 Misc 268).

The Defendant argues that by definition the Claimant cannot rely on any provision of 12 NYCRR 23 et seq. since its applicability is limited to persons "...employed in construction, demolition and excavation operations...." Defendant again relies upon the fact that Claimant was not an employee at the time of the accident, and per force, cannot be deemed as having been employed and hence, the Claimant would not fall within the ambit of 12 NYCRR 23 et seq. If the Court were to agree with this analysis it would run contrary to well-established law that Defendant has a duty to provide inmates with safe equipment (Kandrach v State of New York, supra).

A finding relying on such an analysis of the facts in this case would be manifestly egregious, since here the defective piece of equipment was not generally available to inmates without permission and was also being used by civilian employees. Furthermore, the scaffolding was kept in a secure location, accessible only with a key held, in this case, by the supervisor of the laundry room. Moreover, the scaffold had been used by civilian employees earlier that day, and Claimant was given permission to then use it to change lights at a period of time when it was not being used by the civilian employees. Under these circumstances, Claimant certainly was entitled to rely upon the expectation that the scaffold was in good working order.

It therefore is pertinent to the discussion in this case, based on these facts, that 12 NYCRR 23-5.18(b), (c) and (f) are applicable. Claimant's expert Coniglio testified credibly and without contradiction as to the specific manner in which each of those subdivisions had been violated and, convincingly how the lack of the second cross bracing bar could adversely affect stability. Further, since the scaffold was being used that day by the Defendant's civilian employees, the Defendant was under a duty to ensure the safety of the scaffold and to comply with the requirements of the Industrial Code, albeit as to its civilian employees. It cannot avoid its duty by arguing that Claimant's inmate status now divests them of this duty of care, since in my mind the scaffold was unsafe for use by the civilian employees, who had fortuitously avoided a similar happenstance.

The Defendant further posits that it cannot be liable for this accident since it had neither actual nor constructive notice of the allegedly defective scaffold. On this record such an argument is at best specious and disingenuous. The proof before me establishes that the scaffold was owned by the Defendant; was placed in a secured area when not in use; its use was generally limited to its civilian employees; a limited number of inmates were permitted to use it, and then only with permission. CO Durfee testified without contradiction or qualification that the scaffold was maintained by civilian employees at Attica's maintenance facility. I therefore find that the Defendant had, at the very least, constructive notice and knew or should have known of the unsafe condition of this scaffold.

Finally there is no proof in the record that the Claimant and his assistant had failed to securely set and lock the wheels. Adding to this conclusion is the admission by CO Durfee that he was unaware at the time he conducted his initial investigation that the scaffold had been moved, and that he was not made aware of that fact until his deposition, two years after the accident. He conceded that had he been aware of that fact he would have reached a different conclusion regarding the cause of this accident. It will be recalled that his accident report initially concluded that the cause of the accident was Claimant's unsafe use of the equipment (Exhibit 13, page 9), an unsupportable (pun intended) position based upon the facts in evidence. There is nothing in evidence before me demonstrating any culpable conduct whatsoever by Claimant.

Therefore, I find that the Defendant was negligent and solely responsible for this accident, since it provided an unsafe piece of equipment for use by Claimant, who was given permission to use it by the Defendant to complete the task which had been assigned to him.

The Clerk 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.

All motions not heretofore ruled upon are now denied.


December 22, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Apparently some civilian employees had been using it earlier to repair or replace steam pipes in the laundry room and were either on a break or had gone to obtain other equipment they needed.
  2. [2]This position is somewhat incongruous since Durfee testified at trial that he did not reach any conclusions on the cause(s) of this accident. Thus, query: what view, if any, had changed?
  3. [3]In passing, I note that a pretrial motion would have resulted in the same conclusion and limited the scope and length of the trial.