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
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
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
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
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
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
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,
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 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
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
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,
at 972; Lauber v Sears, Roebuck & Co.
AD2d 922; Scardefield v Telsmith, Inc.
, 267 AD2d 560, lv denied
NY2d 761; Banks v Makita, U.S.A.
, 226 AD2d 659, 660, lv denied
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.