New York State Court of Claims

New York State Court of Claims

FORTUNE v. THE STATE OF NEW YORK, #2004-029-379, Claim No. 104224


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:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Mary B. Kavaney, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 22, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury arose on November 17, 2000 in the laundry room at Fishkill Correctional Facility (hereinafter Fishkill). The trial was bifurcated and this decision deals only with the issue of liability.

The evidence adduced at trial established that on November 17, 2000 claimant was incarcerated at Fishkill and was working in the laundry room. Claimant stated he was housed at Fishkill since 1997 and began working in the laundry room that same year. His first job was as a sheet shaker and his duties required him to remove bed sheets from the dryers, shake them out and then fold them.

Mr. Fortune stated that he became a washing machine operator in late 1997 or early 1998 and believed he was first assigned to washing machine #1 before being assigned to washing machine #5 in 1998 or 1999. He stated there were seven washing machines in the laundry room. Claimant stated he received training on the machine from Chris Regan, the inmate who was then the machine's operator. The training consisted of learning how to turn the machine on and off and how to rotate the drums inside the machine as there are two drums inside machine #5 because it is a large machine. He stated that the civilian supervisor of the laundry room, Mrs. Pat DeCarlo[1]
did not train him. He conceded that his signature appears on a New York State Department of Correctional Services Record of Training (Exhibit 17) indicating he was instructed in the safe and proper use of 60 pound, 100 pound, 200 pound and 400 pound G.A. Braun washers. Pat Lafone signed the document on May 7, 1998 as the employee who trained the inmate.
Mr. Fortune testified that he was not trained to repair the washing machine but that Inmate Regan, the inmate laundry room mechanic, did tell him how to maintain the machine. He was taught how to use a grease gun to grease the joints of the machine, which he stated are outside the machine. Claimant stated that he never received a training manual for machine #5, never received instructions on how to repair the machine and never repaired the machine prior to November 17, 2000.

Mr. Fortune testified that on November 17, 2000, just after he arrived at the laundry room, he put a load of wash into machine #5 and turned the machine on. The motor of the machine was running but he could see through the window on the front of the machine (see Exhibits 7, 13 and 15) that the drum was not rotating as it was supposed to. He went to the back of the machine and could see that the belt was not moving. Claimant stated this had happened on five or six prior occasions and that Inmate Regan had instructed him to take a rag and dry the belt when this happens. Claimant believes the rag got caught on the belt and pulled his hand causing his hand to go around the pulley and injuring his fingers.

Mr. Fortune testified that when he walked to the rear of machine #5, the machine was turned on and the safety cover, which covers the motor and the belt, was not on the machine, but off to the side of it. He stated that he never had a problem on prior occasions when he dried the belt.

On cross-examination, claimant stated that prior to the date of this accident he greased the machine but never changed a belt or took the safety door off the back of the machine. He also stated that no one ever told him to turn the machine off if it was not operating properly. He was never told to shut the machine off before touching the back of the machine. He stated that the safety cover on the back of the machine had been off several weeks prior to November 17, 2000 and he does not know who took it off. Mr. Fortune further testified that prior to this accident on the five or six occasions when the machine malfunctioned he did not turn the machine off before drying the belts.

Avon Long testified on claimant's behalf. Mr. Long testified that he is currently incarcerated at Woodbourne Correctional Facility and had previously been housed at Fishkill. He stated that he was housed at Fishkill for seven years and was there in November 2000. He stated that while housed at Fishkill, he worked in the laundry room and was already working there when claimant began. Mr. Long started in the laundry room in 1994 as a sheet shaker and was moved up to machine operator. In 2000 he was the machine operator of machine #4 while claimant was assigned to machine #5.

Mr. Long testified that Inmate Regan, claimant and himself were allowed to do work on the machines. They did whatever maintenance work was required to make the machines operational. No one trained them, they taught themselves using the instructor's manual that the laundry room supervisor kept in her office (see Exhibit A). He stated that in 2000 he changed brake shoes and springs and also greased his machine. He also stated that Mr. Fortune did the same type of maintenance work on his machine. Mr. Long testified that he saw claimant use a rag to dry off the belt on his machine on a regular basis and he saw the safety cover on the back of machine #5 off the machine periodically prior to November 17, 2000. He further stated that he took the safety cover off his machine when something inside the machine needed to be cleaned. He stated that the cover could only be removed with the use of a screwdriver and a wrench. He stated he was never told that the safety cover could not be removed. Mr. Long stated that he did not witness the accident on November 17, 2000. He arrived at the laundry room about 8:10 a.m. and did not see Mr. Fortune at all that day.

On cross-examination, Mr. Long stated that only he, Mr. Fortune and Mr. Regan did maintenance work on the machines and they were the only ones allowed to take the safety covers off the machines. He also stated that it was normal procedure to shut the machine off prior to doing any work on the machine. He stated that the laundry supervisor, Mrs. DeCarlo, was the one who instructed him to shut the machine off prior to doing work on it. He stated that the instructional manual says to turn the machine off before doing any work on it (see Exhibit A, Page 215).

The State called Patricia DeCarlo as a witness. Mrs. DeCarlo stated she worked for DOCS from October 1983 to October 30, 2003. During that period, she was the laundry room supervisor at Fishkill. She testified that experienced laundry room inmates and herself trained new inmates regarding their job duties. One of the things the inmates were taught was how to turn the machines on and off.

Mrs. DeCarlo testified that in November, 2000 Inmates Regan, Long and Fortune did mechanical work on the machines because of their interest and ability. Mrs. DeCarlo classified claimant as a very good worker. She stated that prior to November 17, 2000 if a machine began to malfunction, normal procedure required that the machine be shut down immediately. She stated that the inmates were aware of this policy because she told them. The witness stated that claimant, Regan and Long greased the machines, put oil in the motors and changed belts. She said that claimant was able to install brakes as well. These items were mostly on the back of the machine, which has a safety cover or door, and the belts are located inside the safety cover.

Mrs. DeCarlo stated that either Long or Regan trained claimant and she and claimant signed the Record of Training (Exhibit 17). The witness also testified that prior to November, 2000, on more than one occasion, claimant asked to have access to the reference book for parts and repair (Exhibit A).

On cross-examination, the witness testified that after claimant's incident she looked at machine #5 and noticed that its safety cover was off. She said that the safety cover is only allowed to be removed if an inmate is working on the machine. She was not able to recall if the safety cover was off the machine prior to the accident.

Correction Officer (hereinafter C.O.) Susan Preece testified on behalf of the State. C.O. Preece has been employed by DOCS for 22 years and has worked in the laundry room at Fishkill since 1995. She was working the 6:15 a.m. to 2:30 p.m. shift on November 17, 2000. C.O. Preece testified that there was one inmate mechanic, Chris Regan, and that Inmates Long and Fortune helped him. She said these three were the three best workers in the laundry room. They had initiative, aptitude and enjoyed their work.

The witness testified that if one of the inmates was doing mechanical work on a machine, they were to shut the machine off and advise either herself or Mrs. DeCarlo that work was being done. C.O. Preece stated that on November 17, 2000, claimant came to her desk at about 7:50 a.m. holding his hand up with blood dripping from it. She called Mrs. DeCarlo who escorted claimant to the medical clinic. She further testified that later that day, at about 2:00 p.m., claimant returned to Fishkill from the hospital. As he was getting out of the transport vehicle, she asked him what happened and he told her he didn't know why he did it; he said he knew better than to stick his hand in a running machine.

It is well settled that when the State, through its correctional authorities, directs an inmate to participate in a work program during incarceration, it owes the inmate a duty to provide a reasonably safe workplace with reasonably safe equipment with which to work, and adequate warnings and instructions for the safe operation of such equipment (see,
Kandrach v State of New York, 188 AD2d 910, at 913; Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665). The State also has a duty to apprise the inmate of any dangers known to it that the inmate could not reasonably be expected to discover himself (see, Fitzgerald v State of New York, 28 Misc 2d 283, at 285). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see, Killeen v State of New York, 66 NY2d 850, at 851; Condon v State of New York, 193 AD2d 874). Also, where an inmate fails to use ordinary care and pursues a dangerous course of conduct, the inmate is required to take some responsibility for his own negligence (see, Martinez v State of New York, 225 AD2d 877; Carter v State of New York, 194 AD2d 967; Hicks v State of New York, 124 AD2d 949).
As the trier of fact, it is the responsibility of the Court to assess the credibility of witnesses and to determine the weight, if any, to be given to such testimony (
LeGrand v State of New York, 195 AD2d 784, lv denied 82 NY2d 663; Johnson v State of New York, 265 AD2d 652). The Court found Mr. Long, an impartial witness, to be a most credible and straightforward witness. The Court accepts his testimony, which was consistent with the testimony of Mrs. DeCarlo and C.O. Preece, that he, Regan and claimant were allowed to perform mechanical work on the machines in the laundry room. The Court also finds credible the testimony of C.O. Preece, Mrs. DeCarlo and Mr. Long that it was normal procedure to turn a machine off prior to performing maintenance on it. This testimony contradicted claimant's testimony that he never performed repair work on the machine prior to November 17, 2000 and that he was never told to turn a machine off if it was not operating properly. Therefore, the Court gives no weight to claimant's testimony on these points.
Based upon claimant's work experience in the laundry room at Fishkill, including his work repairing the machines, his aptitude and skill for the job as a mechanic as testified to by Mrs. DeCarlo and C.O. Preece, it reasonably follows that claimant was aware that the safe operation of washer # 5 required that he turn the power off prior to drying the belt (see also Exhibit A, Page 215, Belt Replacement and Adjustment). Therefore, the Court finds that the sole cause for the accident was claimant's knowing disregard for proper safety procedures in the laundry room. The claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision, are now denied. The Chief Clerk is directed to enter judgment accordingly.

April 22, 2004
White Plains, New York

Judge of the Court of Claims

[1] Mrs. DeCarlo testified at trial that when she worked at Fishkill she was known as Pat Lafone.