New York State Court of Claims

New York State Court of Claims
BERNARD v. THE STATE OF NEW YORK, #2005-015-512, Claim No. 102988

Court apportioned liability 50/50 after trial of claim brought by inmate work crew member injured by log which rolled over claimant injuring his leg. Modified 34 AD3d 1065 [3d Dept 11/22/06]
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:
Larry Dorman, P.C.By: Thomas J. Genova, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 17, 2005
Saratoga Springs

Official citation:

Appellate results:
Modified 34 AD3d 1065 [3d Dept 11/22/06]
See also (multicaptioned case)

Claimant seeks to recover damages for personal injuries he allegedly sustained at approximately 9:30 a.m. on January 5, 2000 while part of an inmate crew involved in moving a large log from an area just off a skidder trail to a staging area known as the header at the Twin Valley Outdoor Recreation Center in Wadhams, New York (Twin Valley) which is a facility operated by the State University of New York at Plattsburgh. The claimant was at the time incarcerated at the Moriah Shock Incarceration Unit in Mineville, New York (Moriah). Trial of this bifurcated action took place on November 16 and 17, 2004. This decision addresses the issue of liability only.
Claimant and two fellow former inmates, John Clifton and Philip Gama, offered similar testimony concerning the events leading up to the claimant's injury on January 5, 2000. All three related that before they were allowed to participate in the logging program at Moriah they were shown an instructional video regarding the proper use of logging equipment, including log carriers and a log sled. The former was a device for carrying logs consisting of a wooden pole with an attached pair of tongs. The tongs could either surround the log to be carried or the sharpened points could be hammered into logs of larger diameter. Log carriers were generally used in tandem with one or more similar carriers depending upon the weight of the log (see defendant's Exhibit C). The log sled was a device made of wood and consisting of a cross-piece and two side pieces to which a rope was attached (see claimant's Exhibit 15). Each of the three witnesses explained that cut logs would generally be carried from the woods to the top of a skidder trail by inmate crews and chained to the sled. The rear portion of the logs were allowed to drag on the ground to act as a brake as the sled was maneuvered down the trail to the header or staging area. There the logs would be sawed into smaller pieces and then split into firewood by members of the inmate logging crew. The former inmates testified that they were not specifically instructed against rolling logs downhill but all including the claimant agreed that the danger in rolling a log down a slope was obvious.
All three of these witnesses recalled that on the day of claimant's accident they were part of a 12-man crew supervised by Correction Officer Randy Welch. Weather conditions were wet and cold and the ground was frozen with sporadic icy patches. They remembered wearing prison issued rubber boots which did not prevent them from sliding as they walked approximately ½ mile up a trail, described as a "skidder trail", to an area where the first logs to be moved that day were located.
Taken together, the testimony of the various witnesses provided a general description of the area at Twin Valley where the inmates were working. It consisted of a header area at or closely adjacent to the bottom of the skidder trail. The header was an open and generally level area upon which several small buildings had been erected. At least one skidder trail led uphill and away from the header. The trail was generally described as six to eight feet wide and heavily rutted on both sides with a mounded area in the center for most of its length. Trees felled in the woods on either side of the skidder trail would be cut into sixteen-foot lengths for smaller diameter logs and a minimum length of eight feet for logs of larger diameter. Inmate crews transported the cut logs from the woods to the skidder trail using log carriers, and then down the skidder trail to the header using either log carriers or a log sled.
On the morning of January 5, 2000 Correction Officer Welch and his crew walked approximately ½ mile up the skidder trail to an area where there were two logs which needed to be transported to the header. Once there Correction Officer Welch instructed the crew to remove a log which he described as "heavy" from a trench located a short distance from the skidder trail. Claimant, Clifton and Gama estimated the distance as between 15 - 20 feet from the edge of the skidder trail. Correction Officer Welch's estimate was a distance of twenty yards. The claimant estimated the log was 3 - 3½ feet wide and 6 - 8 feet long. Correction Officer Welch testified that the log was 2 feet wide and 4 - 6 feet in length.
The log was taken from the trench and moved to the skidder trail by six inmates using three log carriers
. Claimant and his former crew mates testified that the log was so heavy and large in circumference that the log carriers' hooks hammered into its sides repeatedly slipped requiring the crew to periodically stop and hammer the carriers' hooks back into the log. It was generally agreed that it took 15-20 minutes to move the log the relatively short distance from the trench to the edge of the skidder trail.
Correction Officer Welch testified that he supervised movement of the log from the trench to the skidder trail and instructed the inmates charged with transporting the log down the skidder trail to the header to get out of the way if the log began to roll. He then left the crew and re-entered the woods to inspect the second log which remained in the trench.
The claimant testified that upon arrival at the trail edge the log was laid diagonally across the trail and Correction Officer Welch informed the crew members that the log had to be taken to the header even if they had to roll the log down the skidder trail. He stated that Welch was present when the inmates removed the log carriers and prepared to roll the log down the trail. Claimant and inmate Berequet positioned themselves downhill and to either side of the log. Berequet and the four inmates positioned uphill from the log released or lost control of the log when it began to "wobble." The claimant was unable to avoid the log, lost his footing and was injured when the log rolled downhill and ultimately came to rest on his lower right leg. Correction Officer Welch was made aware of claimant's accident by the shouts of the inmate crew members and returned to the skidder trail where he directed the crew in freeing claimant's ankle. Claimant was transported down the trail by stretcher to a warming hut located in the header area and then taken by ambulance first to Elizabethtown Hospital and subsequently to the Champlain Valley Medical Center.
It is well settled that the State owes inmates engaged in work programs the duty to provide reasonably safe equipment as well as warnings and instructions sufficient to permit the safe completion of their assigned tasks (Muhammad v State of New York, 2005 WL 425416, NY Slip. Op. 01409, 3d Dept.). Liability is not established where the facts show that the steps taken to ensure inmate safety were "reasonable and adequate under the circumstances" (Maldonado v State of New York, 255 AD2d 630; Colon v State of New York, 209 AD2d 842). Where a claimant's own negligence contributed to the happening of an accident apportionment of liability is appropriate (Kandrach v State of New York, 188 AD2d 910). As stated by the Court of Appeals in Sanchez v State of New York, 99 NY2d 247, 252, the foreseeability of harm defines the parameters of a defendant's duty:
A defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff (see Pulka v Edelman, 40 NY2d 781, 722). The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the courts (see DiPonzio v Riordan, 89 NY2d 578, 583). Regardless of the status of the plaintiff, the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived (see Basso v Miller, 40 NY2d 233, 241). In words familiar to every first year law student, '[t]he risk reasonably to be perceived defines the duty to be obeyed' (Palsgraf v Long Is. R.R.Co., 248 NY339, 343). Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent (see DiPonzio, 89 NY2d at 584).
Disregarding the not insubstantial conflicts between Correction Officer Welch's testimony and that provided at his examination before trial, the proof at trial was sufficient to establish the defendant's negligence without resort to determinations concerning witness credibility.
Correction Officer Welch described the conditions at Twin Valley on the morning of January 5, 2000 as cold with a drizzling rain. Although he could not recall whether patches of ice were present it seems reasonable to infer that the ground was slippery on a cold, drizzly January morning and the testimony of the claimant and his former crewmates confirms both the existence of icy patches and the slippery conditions they encountered in traversing the uphill slope of the skidder trail.
According to Officer Welch, upon arriving at their destination he instructed the inmate crew to remove the first of two logs from a trench to the edge of the skidder trail. He then supervised the inmates as they transported the log, which he testified was a heavy log, from the trench to the trail edge. At this point the officer cautioned the crew to get out of the way should the log begin to roll and then left the area and returned to the trench where the second log still remained. He stated that he cautioned the crew concerning the danger of rolling logs "because of the weather and the ground being frozen." He provided the inmate crew no instructions regarding the method by which the log should be transported the one-half mile distance to the header area and, more importantly, was not physically present to observe the inmates as they performed the work. Given the circumstances existing on the morning of January 5, 2000 including the icy conditions, difficult terrain and heavy weight of the log, Correction Officer Welch's failure to specifically instruct the inmates regarding the proper method for transporting the log and to be present to oversee the half-mile trek down the skidder trail to the header was negligent. A simple caution to avoid rolling logs was inadequate to fulfill the defendant's duty to act reasonably under the circumstances and protect the inmates from foreseeable harm in performing their work assignment. The risk of harm to the inmate crew was foreseeable. In fact, the officer testified that he warned the crew regarding the danger posed by rolling logs because of the poor weather conditions and frozen ground which, apparently, caused him some concern that the precise harm which befell the claimant might occur.
The claimant must bear an equal share of responsibility for his injuries. Although he was provided no instruction or supervision in the task of transporting the log down the skidder trail, he had some prior logging experience at Twin Valley and was well aware that rolling logs were dangerous yet he placed himself in a position, below and to the side of the log, which he knew was unsafe. The Court does not, however, find the claimant's actions to be reckless so as to constitute a superceding cause of the accident (Lowe v State of New York, 194 AD2d 898, 899; Tryon v Square D Co., 275 AD2d 567).
The Court apportions liability 50% to the defendant and 50% to claimant. Any and all motions heretofore raised and not decided are denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. Absent settlement by the parties, the matter will be scheduled for trial on the issue of damages as soon as practicable after entry of the judgment.
Let interlocutory judgment be entered in accord with this decision.

March 17, 2005
Saratoga Springs, New York

Judge of the Court of Claims

[1]Although Correction Officer Welch testified at his examination before trial dated November 6, 2002 that he assisted the inmates in moving the log, he testified at trial that he simply supervised the inmate crew and did not otherwise participate in the process of moving the log.