New York State Court of Claims

New York State Court of Claims

MANGANARO v. THE STATE OF NEW YORK, #2004-015-599, Claim No. 105912


Synopsis


Inmate with 20 years of experience in construction trades denied recovery for injury to finger caused by placing an angle grinder on a workbench while it was decelerating. Accident was attributable to inmate's own negligence.

Case Information

UID:
2004-015-599
Claimant(s):
NEIL MANGANARO
Claimant short name:
MANGANARO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105912
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
The Proskin Law Firm, P.C.
By: Arnold Proskin, Esquire and Lisa Anne Proskin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 16, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The instant claim alleges that the State was negligent in failing to adequately instruct the claimant in the use of an angle grinder while he was an inmate at the Wallkill Correctional Facility in Wallkill, New York.

The claimant, Neil Manganaro, was the first witness to testify at trial. Mr. Manganaro testified that following his discharge from the United States Army on October 23, 1989 he began working construction and started a construction company building storefronts in New York City. He is also currently self-employed as the owner of a small construction company in New York City.

Sometime following his discharge from the military the claimant was arrested and charged with murder in the second degree and robbery in the first degree. He was ultimately sentenced for attempted murder and began serving a 6 to 18 year prison term. Upon his entry into the prison system claimant began working for Corcraft Industries performing general construction duties including the erection of several buildings at Wallkill Correctional Facility where claimant arrived in 1996.

Mr. Manganaro was injured on May 7, 2001 while working at the Wallkill Correctional Facility blacksmith shop. According to the claimant he arrived at what he referred to as the farm that morning and was instructed to fashion a steel frame for a fan which was to be installed in a building housing dairy cows on the facility grounds. In this regard the claimant was instructed to fashion the frame from angle iron located at the blacksmith shop which also had facilities and equipment necessary to cut the steel into appropriate lengths. According to the claimant he arrived at the blacksmith shop and placed a piece of angle iron in a vise which was attached to an 8 foot by 5 foot metal workbench. He tightened the steel in the vise and utilized an angle grinder to cut the steel. According to Mr. Manganaro he made an incision in the angle iron and then shut off the angle grinder in order to loosen the vise to reposition the steel for further cutting. As the angle grinder was winding down claimant placed it upon the bench face down in front of him. Claimant then stood in front of the vise and pushed down on the vise's release mechanism. As the vise released claimant's hand moved and his left pinky finger was cut by the still turning blade of the angle grinder as it continued to wind down. Claimant applied pressure to his hand at the site of the injury and went to report the accident. According to the witness he had placed the angle grinder to the right and in close proximity to the vise. He testified that the angle grinder vibrated on the workbench as the motor continued to wind down and as a result moved nearer to the vise causing him injury.

Claimant testified that he was given the angle grinder for use in the project by Mr. Moshier who supervised the blacksmith shop. He testified that the angle grinder was a new piece of equipment and that although he had been instructed regarding the use of various tools while at the Wallkill Correctional Facility he never received instruction regarding the use of an angle grinder, was not provided an instruction booklet concerning the tool and had never used an angle grinder prior to May 7, 2001. Finally, claimant testified that he was wearing a full face mask while cutting the steel angle iron but that he did not wear gloves although leather work gloves had been issued to him previously. It was his testimony that although he had set the angle grinder down approximately one foot away from the vise, because the grinder motor continued to wind down after the off button was depressed the blade continued to turn and the angle grinder moved closer to the vise as a result of attendant vibration to a position nearer his left hand which then came in contact with the still-spinning disk blade.

Claimant reported the unwitnessed incident to Mr. Moshier who was outside the blacksmith shop at the time. He was ultimately taken to the hospital for treatment.

On cross-examination claimant agreed that he was usually provided instruction regarding the use and safety aspects of various tools prior to beginning a project. He also agreed that he had substantial construction experience and had used power tools prior to his incarceration. The angle grinder used by the claimant on May 7, 2001 was equipped with an abrasive disk which claimant was aware could injure him if he came in contact with it.

Claimant was asked to review Exhibit C which he described as a sign-off sheet bearing his signature and indicating that he had received instruction regarding the use of various tools. The claimant confirmed that his signature at the bottom of the sign-off sheet bears a date of May 7, 1996 and that the document reflects that claimant was "trained in the safe and proper use" of various tools including hand grinders. Mr. Manganaro testified that although the sign-off sheet indicates that he had been instructed in the use of a hand grinder he had, in fact, never received instruction in the use of a hand grinder despite his signature appearing on Exhibit C.

Claimant next reviewed Exhibit D which is an instruction manual for a heavy duty small angle grinder manufactured by the DeWalt Company. Claimant denied that he had ever seen the document before. Claimant also reviewed Exhibit F which contains two photographs, both of which depict the angle grinder lying on the bench used by the claimant on the morning of May 7, 2001. The second photograph shows the angle grinder placed upon the bench with the abrasive disk facing upward as well as the vise in which a piece of angle iron is secured. According to Mr. Manganaro the position of the angle grinder shown in the second photograph in Exhibit F is not the same as it was when he was injured.

Claimant testified that he had been engaged in construction related work for twenty years prior to the date of his injury and that during that time he had used a variety of power tools. He denied that the Wallkill Correctional Facility had an angle grinder in its inventory when he started working there in 1996. He agreed that he was experienced in the use of a bench grinder which he described as a grinder which is affixed to a bench and equipped with a metal brush used for cleaning metal. He further testified that on the date of his injury he spoke with Mr. Moshier who instructed that claimant should fabricate the frame and that he, Mr. Moshier, would weld it together. Mr. Moshier removed the angle grinder from a box and handed it to claimant for his use in cutting the steel angle iron. Claimant indicated that it was obvious that the angle grinder was new as it was removed from the box by Mr. Moshier and that he was able to turn the angle grinder on by pressing the switch forward and off by pushing it back. Claimant then identified Exhibit E as a DeWalt angle grinder similar to the one used by the claimant on the morning of May 7, 2001. He agreed that the on/off switch on the DeWalt angle grinder is in the same place and works in a similar manner as the angle grinder used by the claimant. Mr. Manganaro testified that when the angle grinder he was using was shut off the motor decelerated and in so doing made a "revving down" noise which claimant heard on the morning he was injured. Claimant stated that Mr. Moshier gave him no instructions regarding use of the angle grinder although he was aware through the application of common sense that the tool should not be put down as it continues to run.

Claimant next described the operation in which he was engaged at the time he was injured stating that he used the angle grinder to make a first incision into the angle iron which he described as "L" shaped. After cutting the first leg of the "L" he then turned the grinder off and placed it on the bench in order to change the position of the angle iron in the vise. Claimant denied that he ever told anyone that he left the angle grinder on the bench with the disk facing up and stated that he was alone in the blacksmith shop at the time of his injury. According to the claimant Mr. Moshier was not in his office at the time of the accident but was outside the blacksmith shop working on a piece of equipment. Finally, claimant stated that he was aware on May 7, 2001 that injury could result if any part of his body came in contact with the wheel of the angle grinder while it was still spinning.

On redirect examination claimant testified that the first time he turned the angle grinder on was to cut the angle iron he had placed in the vise and that he first utilized the switch to turn the tool off when the first cut was completed. With regard to Exhibit C, Mr. Manganaro stated that several of the tools listed on Exhibit C, including hand grinders, did not appear on the sheet at the time he signed it. He also stated that of the two photographs shown on Exhibit F, the left-hand photo showing the DeWalt hand grinder lying face down most accurately reflects the position of the grinder as it was at the time of his injury. Claimant also testified that he was never provided manuals or instructions regarding the use of any tools while engaged in construction activities as an inmate but rather would be provided verbal instructions regarding their proper use. Claimant concluded his testimony by stating that there is no question that he turned the angle grinder off prior to placing it face down on the bench and that the angle grinder moved as a result of vibration during the deceleration phase from where he originally placed it on the bench. The claimant rested his case upon the conclusion of Mr. Manganaro's testimony and moved for judgment in his favor. The Court reserved on the motion which is now denied.

The first witness called by the defendant was Timothy Mikesh. Mr. Mikesh is employed by Corcraft Industries (Corcraft) which is a part of the Department of Correctional Services and provides various construction services for the Department. Mr. Mikesh testified that he first met the claimant in 1996 when Mr. Mikesh was overseeing construction projects for Corcraft which utilized inmates on work crews. He stated that in 1996 inmates joining Corcraft work crews were interviewed to determine their familiarity with certain tools. If a new inmate was not familiar with a particular tool he would be instructed regarding its use and safe operation. The inmate was then required to sign a "sign-off" sheet indicating that he was either familiar with or had received instruction regarding the use of listed tools. Exhibit C was received in evidence and identified by the witness as a sign-off sheet dated May 7, 1996 and bearing his signature and the signature of Neil Manganaro. When asked whether all of the tools listed on Exhibit C appeared on the document at the time claimant signed it the witness answered in the affirmative stating his belief that no tools were added to the list after the signatures were applied. Mr. Mikesh answered "I believe so" when asked whether the hand grinder listed on Exhibit C was the same tool as the angle grinder used by the claimant on the date of his injury.

Mr. Mikesh next stated that although an angle grinder was in the Wallkill Correctional Facility tool inventory in 1996 it was not the grinder labeled Exhibit E which is manufactured by DeWalt. It was Mr. Mikesh's recollection that the grinder in stock in 1996 was a Milwaukee brand angle grinder.

On cross-examination the witness stated that he did not recall instructing claimant regarding startup and shutdown procedures for the DeWalt angle grinder. With regard to Exhibit C the witness stated that he spent approximately one-half hour instructing the claimant as to the proper use and safety practices to be employed regarding the eleven tools listed on the sign-off sheet. He related that he had used hand grinders only occasionally before May 7, 1996, the date the sign-off sheet (Exhibit C) was completed, signed and dated.

Defendant next called Scot Moshier. Mr. Moshier testified that he is currently employed at the Ulster County Correctional Facility and was employed at the Wallkill Correctional Facility as a motor equipment mechanic in May 2001.

Mr. Moshier testified that the blacksmith shop at Wallkill Correctional Facility is used primarily as repair shop for farm equipment. He recognized Exhibit D as an instruction manual to a DeWalt angle grinder which he last saw approximately three months prior to trial. He also identified Exhibit E as the DeWalt angle grinder used by the claimant on May 7, 2001. Mr. Moshier stated that on that date the angle grinder was at the Wallkill Correctional Facility blacksmith shop together with the manual and that it had been in the facility inventory for only a few months. According to the witness he instructed the claimant to read the instruction manual before using the DeWalt angle grinder on the day of his injury. Claimant informed Mr. Moshier that he was familiar with the use of the angle grinder and Moshier observed claimant using the grinder for approximately one minute. The witness stated that following his observation of the claimant's use of the DeWalt angle grinder there was no question in his mind that claimant was familiar with the tool. After observing claimant use the angle grinder the witness testified that he went to his office inside the blacksmith shop.

It was Mr. Moshier's testimony that while in his office he heard the claimant scream. He went to the workbench and found the angle grinder on with the motor running and the grinder wheel facing up. The witness testified that he shut off the angle grinder and went outside to find the claimant. He reviewed Exhibit F and identified the photo on the right as showing most precisely the position of the grinder when he found it. He testified that the photo on the left side of Exhibit F which shows the angle grinder on the bench with the abrasive disk facing downward was taken after the grinder had been moved by the Wallkill Correctional Facility fire and safety officer. The witness estimated that it was approximately two minutes between the time he heard the scream and the time he arrived at the workbench.

On cross-examination the witness reiterated that he was in his office when he heard claimant scream. He was then asked to review an interdepartmental memorandum completed by the witness on May 7, 2001 which is a part of Exhibit A. The memorandum states in part "[a]t approximately 10:00 a.m. this date inmate Manganaro 91A1022 was using a hand grinder at the blacksmith shop. He was under my supervision at the time. Inmate Manganaro notified me that he injured his left hand. Inmate Navarro . . . who was working with me outside the shop notified CO P Bonetti who was at the police barn of this incident". The witness was then asked to compare his testimony at trial regarding his location at the time claimant was injured with testimony provided at his examination before trial in which he related that he was outside the blacksmith shop when the incident involving the claimant occurred. The witness stated that he was mistaken in both the interoffice memorandum and his EBT testimony regarding his location at the time of claimant's injury.

With regard to any training provided to the claimant regarding use of the angle grinder the witness related that he instructed the claimant to be careful, that the angle grinder could inflict injury and asked several questions of the claimant regarding the angle grinder which satisfied him that claimant was familiar with its use. The witness stated that the instruction manual for the angle grinder was in the box with the angle grinder on the date of claimant's injury. He stated that he only recently recalled that he had provided claimant the instruction manual to review before using the grinder and as a result did not mention this circumstance at his examination before trial. He also related that he had observed claimant use other grinders prior to May 7, 2001.

With regard to Exhibit F Mr. Moshier reiterated his testimony on direct examination that the photograph on the right most closely approximates the position of the grinder on the bench when he first observed it. According to the witness the grinder was in the position shown in the photograph running at full speed. Mr. Moshier stated that his office is approximately 20 feet from the workbench where the claimant was engaged in cutting the angle iron. The witness testified that although his office door was open he could not see the claimant working and estimated that one to two minutes elapsed between the time he heard the claimant scream and the time he arrived to observe the grinder on the workbench. Mr. Moshier agreed that he read the interoffice memorandum which is a part of Exhibit A prior to signing it. He also agreed that he testified at his examination before trial that he was working outside when the claimant came running over holding his hand after which the witness returned to the blacksmith shop and shut off the grinder. Mr. Moshier stated that he first recalled as he reviewed his EBT testimony several months prior to trial that he was working in his office and was not outside the blacksmith shop at the time the claimant was injured.

On redirect examination Mr. Moshier testified that he was in his office at the time claimant was injured. He stated that prior to the time he was injured claimant had used a cutoff saw to cut pieces of metal angle iron to length and was engaged in using the angle grinder to shape the edges of the cut metal pieces for welding at the time of his injury. Mr. Moshier stated that he instructed the claimant to make sure that the grinder was off and had stopped rotating before setting it down on the bench. He further testified that he offered claimant the instruction manual for the angle grinder but that the claimant indicated that he did not need to review the manual because he was familiar with the tool. The witness then observed the claimant using the angle grinder and concluded that claimant was adequately familiar with its proper use.

On re-cross-examination Mr. Moshier testified that during the period he was instructing claimant in the use of the angle grinder claimant turned the grinder on and then turned it off to continue their conversation for several more seconds. Claimant then turned the angle grinder back on and began performing his assigned task. The witness testified that the grinder takes approximately 20 seconds to fully wind down after it is turned off. He agreed that it was obvious that the DeWalt angle grinder which was new in 2001 was not the same hand grinder as listed on Exhibit C, the signatures to which are dated May 7, 1996.

The defendant then called Alden Gaudreau. Mr. Gaudreau related that he is a licensed engineer who is self-employed as a mechanical engineering consultant. He also stated that he has testified as an expert in court proceedings approximately 30 times previous to the instant matter.

After being qualified as an expert the witness related that he reviewed transcripts of examinations before trial, photographs, accident reports, the DeWalt angle grinder instruction manual, relevant engineering standards as well as various brands of angle grinders. He also examined the DeWalt angle grinder labeled Exhibit E which was received in evidence.

With regard to Exhibit E, Mr. Gaudreau testified that he examined the blade guard or shield which he stated covers 180 degrees of the circular wheel surface as required by existing engineering standards. He described the on/off switch as a spring action mechanism with a lock on feature and release which he found to be in proper working order. According to the witness one and one-half pounds of pressure is required to release the switch from the "lock on" position. When shut off, the motor gradually decelerates to a stop at a consistent eight to nine seconds. He explained that because of its high torque the motor causes the grinder to vibrate when placed on a flat surface such as the workbench used by the claimant. Upon his review of both the grinder and the instruction manual (Exhibit D) the witness testified to his opinion that the angle grinder used by the claimant on the date of his injury was adequate and in reasonable condition for the purpose intended. He stated his further opinion that the guard conformed to relevant national standards and that the on/off switch was functioning as intended by the manufacturer. Asked to assume that the claimant was operating the angle grinder on May 7, 2001 and that he placed the grinder on the bench while it was running the witness stated his opinion that the injury to claimant's left hand was caused by laying the grinder on the bench while the switch was in the on position. Claimant was injured when his finger came in contact with the spinning abrasive disk which continued to rotate at its normal rate of revolutions per minute.

On cross-examination Mr. Gaudreau agreed that the angle grinder used by claimant on May 7, 2001 did not exist in 1996. He stated that the angle grinder's circular disk spins at approximately 11,000 revolutions per minute and that if placed upon a bench with its motor running the grinder would "vibrate all over the place". Mr. Gaudreau reviewed the photo marked "4 of 6" on the right side of Exhibit F and testified that an angle grinder placed on the table as depicted in the photograph would "bounce all over" and "could well bounce off the table".

The witness opined that claimant could have been injured when his finger came into contact with the spinning wheel during the eight to nine-second winding down period. He opined that the State might have some responsibility for claimant's injury if claimant had not been given proper instruction on the use of the angle grinder and had had no previous experience with such a tool. Mr. Gaudreau testified that the angle grinder should have been placed on the table with the disk facing downward after the winding down period was over and the disk had stopped spinning. He admitted that his testing of Exhibit E was not performed on a metal work table such as the workbench used by the claimant on the date he was injured.

On redirect examination Gaudreau indicated that the directions for the DeWalt angle grinder inform the user to shut off the machine and wait until it stops spinning before setting it down. On re-cross the witness responded affirmatively to counsel's suggestion that claimant would not have been aware of the recommended procedure for putting the angle grinder down if he had not been given the manual. In response to an inquiry by the Court the witness testified that an angle grinder could be used to both cut and smooth steel. The claimant was recalled briefly to admit to signing Exhibit B dated 1/18/2001 and upon such admission the document was received in evidence. Thereupon the defense rested.

In rebuttal claimant testified that he shut off the angle grinder and placed it face down on the workbench. He further testified that no one instructed him to wait until the grinder stopped spinning before putting it down and that he was never provided the grinder's instruction manual. With regard to Exhibit B claimant stated that although he recognized his signature on the document the sentence written thereon following his signature must have been added at a later time.

On cross-examination claimant acknowledged that common sense should cause one to wait until the grinder wheel stops spinning before setting it down. Upon receipt in evidence of a transcript of the examination before trial of Scot Moshier (Exhibit 1) the trial was concluded.

On the evidence presented at the trial the Court concludes that claimant failed to sustain his burden of establishing that his injury resulted from defendant's failure to provide adequate instruction in the use of the angle grinder. While it is settled that "when the State, through its correctional authorities, directs a prison inmate to participate in a work program during incarceration, it owes the inmate a duty to provide reasonably safe machinery and equipment with which to work and adequate warnings and instructions for the safe operation of such machinery and equipment" (
Kandrach v State of New York, 188 AD2d 910, 913) the State is not an insurer of an inmate's safety and the mere happening of an accident does not require the imposition of liability. An inmate is responsible for the failure to use ordinary care (see, Carter v State of New York, 194 AD2d 967) and his or her prior experience and training is a factor to be considered in determining the reasonableness of both the State's actions and the actions of the particular inmate (Martinez v State of New York, 225 AD2d 877). Further, "[t]here is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense" (Felle v W.W. Grainger, Inc., 302 AD2d 971, 972; Liriano v Hobart Corp., 92 NY2d 232, 241-242; Carbone v Alagna, 239 AD2d 454, 456). "The open and obvious nature of [the] risk negates any duty to warn on the part of the [defendant]" (Lamb v Kysor Indus. Corp., 305 AD2d 1083, 1085; Felle v W.W. Grainger, Inc., supra at 972; Lauber v Sears, Roebuck & Co., 273 AD2d 922; Scardefield v Telsmith, Inc., 267 AD2d 560, lv denied 94 NY2d 761; Banks v Makita, U.S.A., 226 AD2d 659, 660, lv denied 89 NY2d 805).
Claimant has not alleged that the angle grinder provided by the State was defective. Rather claimant contends that there was a failure to instruct him in the proper use of the tool, particularly regarding the wind down or deceleration phase after the grinder is turned off. In particular, claimant contends that he should have been instructed to wait until the disk stopped spinning before placing the grinder on the table and that he should have been provided with the angle grinder's instruction manual (Exhibit D).

With regard to the instruction manual (Exhibit D) the Court has examined the document and determined that it contains no warning regarding handling of the device while the disk is rotating following activation of the shutoff switch. Therefore, the defendant's alleged failure to provide claimant the instruction manual cannot have been a proximate cause of his injury.

Claimant admittedly had twenty years' experience in the construction trades and while he denied having used an angle grinder prior to the date in question he admitted at trial that he appreciated the danger of placing his fingers in close proximity to a rapidly rotating abrasive disk. He testified that he heard the "revving down" noise as the grinder went through its deceleration phase and was aware that he could be injured should he come in contact with the rotating disk. Nonetheless, claimant placed the angle grinder on the workbench while it was still decelerating causing the grinder to vibrate and thereby move closer to the vise where his finger came in contact with the still spinning abrasive disk. Given his long experience in construction, his familiarity with the use of power tools and his recognition that as a matter of common sense one should not release a power tool while it was still engaged the claimant must be found solely responsible for his injury. Whether the angle grinder was running in the on position or decelerating after being shut off and whether it was placed on the bench with the disk facing upward or down, it is claimant's own carelessness in placing the tool on the workbench while the disk continued to rotate and positioning the grinder too close to his work area, and not any alleged negligence of the State, which gave rise to claimant's injury. Accordingly, the instant claim is dismissed.

Let judgment be entered in accord with this decision.

July 16, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims