New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2005-010-048, Claim No. 104161-A


Injuries of inmate claimant, during her work assignment, found to be caused by the negligence of defendant.

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 26, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for personal injuries she sustained on July 2, 1999 during her incarceration at Bayview Correctional Facility (Bayview). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Bayview is located on the West Side Highway between 19
th and 20th Streets in Manhattan. The facility is bordered by a chain link fence. A 36 inch to 42 inch sidewalk separates the fence from the street. Due to construction along the highway, there was an orange link barrier strung on wood posts on the road side of the sidewalk.
On July 2, 1999,
claimant was performing an outside work detail with another inmate which required them to move a dumpster filled with garbage 150 feet from the side door of the facility to the northeast corner of 19th Street. The dumpster measured 37 inches wide, 74 inches long and four feet deep, and was constructed of one-eighth inch thick steel. It had four wheels on casters that operated independently. Each spun freely vertically and rotated 360 degrees horizontally. The turning of the wheels depended on the ground surface. There was no steering mechanism and no brakes. Sleeves on the ends of the dumpster were used by a forklift to dump garbage.
Claimant pulled the dumpster while the other inmate pushed it. Claimant had not been trained for this assignment. Prior to July 2, 1999, claimant had moved the dumpster numerous times to 20th Street and twice to 19th Street. Proceeding along the sidewalk, there was only a two and a half or three inch clearance on both sides and claimant had previously expressed concerns about the activity to Correction Officers Archer and Jimenez and Sergeant Johnson because of the difficulty in keeping the dumpster wheels straight.
Claimant described herself as five feet, two inches tall and 130 to 140 pounds. On July 2, 1999, the inmate pushing the dumpster, Tucker, was five feet, four inches tall and weighed less than 100 pounds. The sidewalk was cracked and littered with brown sand and wood. Claimant was walking backwards, toward 19th Street, pulling the dumpster with her hands in the sleeves while looking over her shoulder, checking the clearance. She could not see over the mound of garbage and yelled to Tucker to slow down. As they moved, the dumpster veered from side to side and then headed to the right. Claimant tried to straighten its course, but her hand became caught between the dumpster and a pole that protruded from the fence and further narrowed the available space for passage.
Correction Officer Lawrence A. Smith testified that on July 2, 1999, he supervised the outside detail. He explained that the outside detail was a work program in which a group of inmates were responsible for
bringing supplies into the facility and removing garbage from within the facility. On July 2, 1999, claimant was assigned to pull the dumpster from the building to meet a garbage truck at the corner of 19th Street. Prior to his shift, Smith visually inspected the dumpster only to the extent of checking that its wheels were attached. Had Smith observed a deficiency, he would have completed and submitted a maintenance request form.
Daniel S. Burdett, a consulting engineer and accident reconstructionist, offered expert testimony on behalf of
claimant. He has a Bachelor of Science in Mechanical Engineering, a Masters of Science in Industrial Engineering and a Masters in Business Administration. Burdett visited Bayview and viewed comparable dumpsters. He took measurements of the equipment and the relevant outside areas. Burdett noted that the distance from the exit door to the place of claimant's injury was 118 feet. Looking at photographs of the scene, he explained that the lines on the concrete sidewalk were expansion joints that should have been filled with concrete. Instead, there were spaces one inch deep and one inch wide making it harder for the two inmates to maneuver the dumpster (Ex. 12). The sidewalk had a one to two percent grade from 20th to 19th Street which caused the dumpster to increase its speed as it was being pushed.
According to Burdett, the procedure followed by Bayview to move the garbage from the facility to 19
th Street was a departure from good and acceptable engineering standards. In his view, the lack of training given to the inmates was irrelevant because no amount of training could have made the inherently dangerous procedure safe. The person pulling the dumpster was walking backwards with a heavy object being pushed toward her. The direction of the dumpster was solely dependent on how the wheels rotated and was affected by the sidewalk debris. With a sidewalk narrowed by construction, having only two and one-half inches clearance on either side, there was no margin for error.
claimant and Tucker had no means of effective communication. Once the dumpster veered to the right, a person pulling it would instinctively try to correct its course. However, the dumpster was a heavy object and had great velocity. Burdett further testified that there was nothing claimant could have done to control the dumpster. In Burdett's opinion, hand trucks should have been used to remove garbage from Bayview to the corner of 19th Street, even if it required the inmates to make 20 trips.
Defendant rested without presenting any evidence
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 Muhammad v State of New York, 15 AD3d 807; Maldonado v State of New York, 255 AD2d 630). 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; Rosado v State of New York, 139 AD2d 851 [State's duty is to provide care commensurate with claimant's capacity to provide for his own safety]). The State, however, is not an insurer of inmate safety and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 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).
Upon consideration of all the evidence, including listening to the witnesses and observing their demeanor as they did so, the Court finds that the sum of the credible evidence established that defendant was negligent. The Court found the testimony of claimant's expert to be most persuasive. Indeed, the circumstances of claimant's work assignment were fraught with risks of injury to claimant which should have been apparent to defendant. Specifically, the confines of the sidewalk, coupled with the lack of ability of the inmates to communicate effectively while attempting to negotiate the loaded dumpster, rendered claimant's work assignment unsafe. Moreover, there was no evidence that claimant was negligent in attempting to safely perform the task assigned to her. Accordingly, this Court finds defendant 100 percent liable for claimant's injuries. All motions not heretofore ruled upon are DENIED. A trial on the issue of damages will be held as soon as practicable.

August 26, 2005
White Plains, New York

Judge of the Court of Claims