New York State Court of Claims

New York State Court of Claims

MORAN v. THE STATE OF NEW YORK, #2005-009-148, Claim No. 106923


The Court found the State 75% responsible for personal injuries suffered by claimant, an inmate, when he fell from a ladder while engaged in a painting project at Watertown Correctional Facility, based upon the State's failure to provide both proper equipment and adequate supervision. Comparative fault at 25% was attributed to claimant.

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:
BY: Martin J. Rothschild, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 21, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimant, an inmate at Watertown Correctional Facility (Watertown), seeks to recover damages for personal injuries allegedly suffered by him when he fell from a ladder on September 5, 2002, while engaged in a painting project at the facility. The trial of this claim was bifurcated, and therefore this decision addresses solely the issue of liability.

Testimony adduced at trial established that claimant had been assigned work duties with the Building, Grounds and Maintenance Departments (BGM) at Watertown since June, 2002. On September 5, 2002, the date of the incident, claimant had been assigned to paint utility support poles at Watertown as part of a comprehensive painting project at the facility. During the summer of 2002, the facility had undertaken a project to paint several hundred of its steam pipe insulation support poles, which extend up from the ground to different heights throughout the facility.

Correction Officer Terry Parent testified that he was in charge of supervising the completion of this pole painting project, and that claimant had consistently worked on this project as it continued throughout the summer and into early fall.

Correction Officer Parent testified that on the day of the incident, he had assigned a work crew, consisting of claimant and two other inmates, to the job of painting some of these utility poles. He testified that one inmate was responsible for painting the lower portion of the poles, accessible by standing on the ground, and that another inmate, in this case the claimant, was responsible for painting the upper portion, accessible by use of a ladder. A third inmate in the work crew had the responsibility of securing the ladder for claimant as a "spotter".[1]
He further testified that use of an inmate "spotter" was the common and accepted practice and procedure at the facility for any work crews using a ladder exceeding four feet in height.
Correction Officer Parent testified that after claimant's crew arrived at their assigned location, he sent one inmate, who was to act as the "spotter", back to his dorm room to change his sneakers. Immediately thereafter, Correction Officer Parent received notification on his radio that he had received a phone call. He testified that he then left the work location to take this call, but before doing so instructed claimant not to set up the ladder or climb it before his "spotter" returned. He also testified that he spoke with Correction Officer Layman, who was supervising other inmates in the area, and that Correction Officer Layman agreed to maintain visual contact of the work crew and the ladder.

During Correction Officer Parent's absence, claimant fell from the ladder and sustained his injuries.

Contrary to the testimony of Correction Officer Parent, claimant testified that prior to the day of this accident, he had never been assigned to the pole painting project at the facility. He testified that he received his first painting assignment that morning, and that the work crew consisted of himself and one other inmate. He also testified that he did not receive any instructions from Correction Officer Parent as to proper positioning of the ladder, and that he had not received any orders against using the ladder during Correction Officer Parent's absence. Furthermore, he testified that he had already set up the ladder and had begun painting from the ladder prior to Correction Officer Parent being called away.

Claimant testified that while he was attempting to paint the top portion of the insulation pipe, the ladder began to shift and sink into the dirt and sand on the ground on which it was based. At that point, he testified that the insulation pipe began bending under his weight, causing the ladder, and claimant as well, to fall. Claimant testified that he had the paint roller in one hand and the paint tray in the other, and that he was unable to regain his balance. He testified that his right foot became entangled in the bottom rungs of the ladders during his fall, causing a dislocation of his right ankle. When the accident occurred, Correction Officer Layman contacted Correction Officer Anthony Misercola, who was the Deputy Fire and Safety Officer at Watertown at the time of the incident, and on that day was the acting Fire and Safety Officer.

Correction Officer Misercola did not witness this accident. However, he went to render assistance to claimant immediately upon receiving word of the accident from Correction Officer Layman. Correction Officer Misercola testified that claimant told him that as he was descending the ladder, the ladder began to shift and fall, and that his right foot became entangled in the second (from the bottom) rung (of the ladder). Correction Officer Misercola also testified that claimant told him that his "spotter" had previously returned to his dormitory to change his sneakers, and that he (claimant) had decided to proceed with the painting anyway.

Despite these direct contradictions in testimony, there are certain facts on which all witnesses agree. First of all, claimant was utilizing a ladder consisting of one-half of an extension ladder which had been disassembled into two separate ladder sections. The section being used by claimant was approximately 12 feet in height. The ladder had a large gap between rungs on one end, and it did not have any cleats or any other attached device to stabilize the bottom of the ladder. It is also undisputed that when claimant fell (whether it was from the top of the ladder as testified to by claimant, or as he was descending the ladder, as stated by Correction Officer Misercola), there was no "spotter" present to assist claimant in the painting project. In other words, there is no dispute that claimant was painting this utility pole alone on a 12-foot ladder, without the benefit of a "spotter". In his claim, claimant maintains that the State violated its duty to provide him with a safe workplace. Specifically, claimant alleges that the State failed to provide him with proper and adequate equipment, and that the State failed to adequately supervise him during his work program.[2] It is well-settled 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). The State is not an insurer of inmate safety (Maldonado v State of New York, 255 AD2d 630), but when the State directs an inmate to perform work, the inmate is entitled to a workplace that is reasonably safe under the prevailing circumstances (Kandrach v State of New York, 188 AD2d 910). Specifically, the State owes a duty to provide its inmates 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).
Although the State contends that this ladder had been safely used all summer throughout the course of this painting project, testimony established that the ladder utilized by claimant was part of a disassembled extension ladder, which was not long enough to allow claimant to safely reach the top portion of the utility pole which he was painting. Furthermore, when placed in the soft, sandy ground, without any cleats or braces, this ladder failed to provide claimant with adequate protection against slippage and falling, especially when used without benefit of a "spotter". Since the ladder was in the exclusive possession of the State, and was being utilized in a location directly controlled by the State, the State must be charged with notice of these conditions.

Based on these findings, the Court concludes that the State failed to provide adequate and safe equipment for use by claimant in this painting project.

Claimant also contends that inadequate supervision was provided on the date of the accident. According to the testimony of Correction Officer Misercola, the safety policy at Watertown at that time required "direct supervision" of equipment that was classified as a "Class A" tool, a designation which includes an extension ladder over four feet which is in the possession of an inmate. He further testified that "direct supervision" requires that the inmate be in the direct view of his supervisor at all times. Correction Officer Misercola, however, testified that even though Correction Officer Parent was called away from the immediate area, the arrangements made by Correction Officer Parent with Correction Officer Layman to watch over claimant satisfied this "direct supervision" requirement. As a result, it is the State's contention that the State provided adequate supervision since claimant remained in the direct view of Correction Officer Layman while he painted the utility pole.

However, even though claimant remained in Correction Officer Layman's view while Officer Parent was away, there is no dispute that claimant continued to paint for a period of time without the benefit of any "spotter", in full view of Correction Officer Layman. Correction Officer Misercola testified that if he had observed an inmate climbing a ladder alone, without the benefit of a "spotter", he would consider this an unsafe condition and would prevent it from happening. Therefore, even though claimant was in the direct view of Correction Officer Layman while painting the utility pole, Correction Officer Layman had an obligation to prevent claimant from doing so until a "spotter" could be provided. Therefore, even though Correction Officer Layman's conduct may have satisfied facility regulations as to "direct supervision", there was no evidence in the record to establish that claimant was provided adequate supervision as he proceeded with his assigned duties to paint this utility pole. Essentially, claimant was left alone and was allowed to ascend and/or remain on the ladder without sufficient safeguards in place.

Based on the foregoing, the Court finds that the State was negligent in both failing to provide proper equipment for use by the claimant, as well as failing to provide adequate supervision over claimant's actions, and therefore must be held liable for the injuries sustained by claimant in his fall.

In so finding, the Court must also consider whether any comparative fault should be attributed to claimant. There was no testimony from claimant that he had ever raised any complaints about the condition of his ladder, the soil conditions at the base of the utility pole, or that his "spotter" had supposedly left the area while he was painting.

While the Court is mindful of the fact that inmates in a correctional facility must always be concerned with the possibilities of retribution should they question directions or orders from correction officers, in this case claimant certainly would have been justified in waiting until either his "spotter" or Correction Officer Parent returned before continuing with his painting tasks. By failing to appreciate the risks involved in painting the pole from a ladder without any "spotter", claimant must also be held accountable for this accident.

Based upon the foregoing, the Court finds that the defendant State of New York is 75% responsible for the injuries suffered by claimant in this accident, and that claimant is 25% responsible for his injuries.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. 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 21, 2005
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[2] Claimant has also alleged that the State violated safety standards set forth in Labor Law §§ 240 and 241(6). However, although violations of the Labor Law may, in certain instances, be some evidence of negligence, it is well-settled that inmates are not considered employees of the State, and therefore are not entitled to the full range of protections provided by the Labor Law (D'Argenio v Village of Homer, 202 AD2d 883; Fitzgerald v State of New York, 28 Misc 2d 283).