MACHARE v. THE STATE OF NEW YORK, #2005-019-012, Claim No. 107662
The court apportioned liability 75% to the State and 25% to claimant, an
inmate, for the injuries, if any, he received while working with a log splitter
during a work program.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
LAW OFFICES OF HOWARD M. FILE, P.C.BY: Martin Rubenstein, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Dennis Acton, Assistant Attorney General, of counsel
August 11, 2005
See also (multicaptioned
Claimant, Rolando Machare, an inmate in the custody of the New York State
Department of Correctional Services (hereinafter "DOCS"), brings this claim for
negligent supervision for personal injuries sustained while working with a log
splitter on January 31, 2003. The bifurcated trial of this claim was held in
the Binghamton District on May 23, 2005. The parties requested and were granted
additional time to submit post-trial memoranda. This Decision addresses the
issue of liability only.
Claimant, born in 1975, testified that he entered State custody in April 1995,
but was transferred in the fall of 2002 to the minimum security facility
referred to as the Sullivan Annex. Soon thereafter, claimant began
participating in a work program known as the Environmental Conservation Group 3
Program (hereinafter "ECon3") which involved jobs such as cleaning campsites and
mowing lawns. On the date of this accident, January 31, 2003, claimant was part
of the ECon3 inmate work crew assigned to Belleayre Mountain Ski Resort
(hereinafter "Belleayre") for the continuation of a work assignment that had
begun approximately two weeks earlier which included snow removal and breaking
up and placing firewood in fireplaces at various locations around the resort.
Claimant testified that there was a civilian supervisor present, Craig R.
Cherry, who provided the daily job assignments, but that a correction officer,
Kevin Hart, was also present on the scene as well.
The machine at issue here was identified at trial as a "30-Ton Log Splitter"
and is best described as a flat railing (without sides) on which a log is placed
with a "push plate"
on one end which, upon the activation of a hydraulic lever, forces the log into
a blade or "wedge" thereby splitting the log in
Claimant described the day of this accident as a cold windy and snowy day, with
snow and ice on the ground. Claimant was wearing winter clothing, boots,
gloves, and earplugs. After lunch that day, at approximately 11:30 a.m.,
claimant and the others were instructed to continue splitting logs. Claimant
testified that he lifted a log from the nearby pile, approximately three feet in
length and two feet in diameter, with flat ends, weighing approximately 150
pounds and placed it on the railing so that it could be cut. Claimant had his
left hand on top of the log (at approximately 11:00) and his right hand on the
bottom of the log (at approximately 5:00) in order to adjust the position of the
log on the rail. Claimant testified that the large diameter of this particular
log (approximately two feet) which overhung the rail on both sides allowed him
to have his right hand near the bottom of the log. During this time, claimant
explained that the push plate was approximately six to eight inches behind the
end of the log. Claimant had been in the process of adjusting the log for
approximately three to four seconds when the operator activated the lever
without warning, smashing the tip of claimant's right thumb between the log and
the push plate. Claimant never saw the push plate move or the lever operator
engage the push plate; nor did he detect any movement or any type of warning
before the accident. Claimant immediately reported his injury and was taken to
Belleayre's first aid station and ultimately a nearby hospital.
Claimant also testified regarding the manner in which the work crew had used
this log splitting machine in the days prior to this accident. Claimant stated
that the log splitting machine was always operated with three inmates, with one
inmate controlling the lever and two other inmates on either side of the railing
to adjust the log. Claimant indicated that the function of the two inmates on
either side was to adjust the log to make sure it was straight between the push
plate and blade at the other end and then to catch the pieces after being split.
Claimant testified that when the log was in place on the rail the inmates would
normally keep their hands on top of the log, i.e., on the bark side of the log,
to hold the log in place while the lever operator pulled the lever that would
engage the push plate.
Claimant testified that he never received any formal training on the use of the
log splitter and was never provided any owner's manual regarding the machine.
Claimant indicated that he did receive informal training on the use of the log
splitter to the extent of watching other inmates use the machine and
instructions received from other inmates with more experience on the work crew.
Claimant also testified that he had no work experience using a log splitter
prior to entering State custody. Claimant testified that he did not see any
labels or warnings on the side of the machine.
Claimant also submitted the deposition testimony of various witnesses including
Kevin Hart, the correction officer accompanying the work crew; Armando Zayas,
the inmate operating the hydraulic lever; James Jones, the inmate on the other
side of the railing; Marino Pantaleon, another inmate member of the work crew;
as well as the State's sole witness, Craig R. Cherry.
The State called Craig R. Cherry, employed by the New York State Department of
Environmental Conservation since September 10, 1986. On January 31, 2003, Mr.
Cherry was supervising the ECon3 inmate work crew at Belleayre. Contrary to
claimant's testimony, Mr. Cherry testified that he had instructed claimant
regarding the proper operation of the log splitter and had actually demonstrated
the machine to the claimant. The witness indicated he normally would operate
the machine with trainees in advance to be sure that they understood how it
operated and were aware of the dangers in operation. Additionally, the witness
testified that he warned claimant to keep both hands on the bark side of the
logs only and never on the cut end in order to avoid catching a hand between the
back of the log and the push plate. Mr. Cherry indicated that he had never had
any prior inmate injuries with this machine. Finally, Mr. Cherry testified that
it should have been obvious to anyone viewing the machine in operation that you
should keep your hands away from the area between the log and push plate.
On cross-examination Mr. Cherry conceded that inmates loading the log onto the
rail had to straighten the log on the rail between the push plate and the wedge
prior to the engagement of the push plate in order to be split. Mr. Cherry also
acknowledged that the State had instructed the inmate work crew to operate the
log splitter as a three-man operation. The witness further testified that he
had never seen or read the owner's manual with regard to this machine.
It is well-settled that the State is not an insurer of inmate safety, however,
when the State directs an inmate to perform work it is bound to provide that
inmate with a reasonably safe work environment. (
Maldonado v State of New York
, 255 AD2d 630). The State's duty includes
providing the inmates with reasonably safe machinery and equipment, together
with proper instructions and warnings for the safe use of that machinery and
equipment. (Kandrach v State of New York
, 188 AD2d 910, 913;
Palmisano v State of New York
, 47 AD2d 692).
Claimant alleges that the State failed to provide him with proper and adequate
training on the log splitting machine and that the State failed to supervise him
during his work program. Stated another way, claimant does not argue that this
log splitting machine was inherently unsafe if used in accordance with the
owner's manual, but rather that the State instructed claimant and the other
inmates to use the machine in an unsafe manner, namely as a three-person crew
rather than one person as stated in the owner's manual.
During trial, claimant offered the owner's manual into evidence as Exhibit 6 to
which the State objected. The court reserved on the admission of Exhibit 6 and
permitted the parties to submit post-trial arguments on the admissibility of the
owner's manual. The State concedes that claimant served it with a CPLR 3122-a
notice in September of 2004 indicating that the owner's manual for this
particular log splitter had been subpoenaed for use at trial. The State further
concedes that it never objected to said notice until the morning of trial. The
court finds that the State waived any objections to the admissibility of the
manual by failing to respond to the CPLR 3122-a notice. Furthermore, even were
the court to overlook the State's failure to object, the court would have found
that the manual itself was part of the instrumentality and thus admissible over
the State's objections. As such, the court now overrules the State's objection
to the admissibility of the owner's manual. An examination of the owner's
manual reveals that the manufacturer warned that the log splitting machine
should be operated by one person, thereby avoiding the possibility of the
activation of the hydraulic lever while someone else was adjusting a log on the
rail. More specifically, the manual states "
allow more than one person to operate the splitter at the same
time. Most log splitting accidents occur when there is more than one person
operating the unit."
(Cl. Ex. 6, p 3
[emphasis in original]).
The State's witness, Mr. Cherry, unequivocally testified that he trained the
inmate work crew, including claimant, regarding the "proper" use of the log
splitting machine, but that his training included using three men on the log
splitter. As such, even were this court to credit Mr. Cherry's testimony over
claimant's regarding whether training was ever conducted, the State's own
witness has established that he improperly trained claimant on the machine.
Consequently, the court finds that the State breached its duty to claimant by
failing to provide him with proper instructions and warnings for the safe use of
the log splitting machine. Further, the court finds that said breach was a
proximate cause of claimant's injury since the lever could not have been engaged
had the machine been used by one person only.
That having been said, however, the State argues that the claimant himself was
negligent in not watching what he was doing and not keeping his hands away from
an obvious hazard. The court finds that although Mr. Cherry had instructed
claimant as to the placement of his hands which claimant did not follow,
claimant's testimony that this particular log was extra large in diameter thus
requiring the hand placement he used in order to adjust the log went
In sum, although the court finds that claimant bears some responsibility for his
own injury, the court finds the State shares the larger
Based upon the foregoing, the court finds liability should be apportioned 75%
to the State and 25% to claimant for the injuries, if any, claimant sustained as
a result of the accident of January 31, 2003.
All motions on which the court previously reserved or which were not previously
determined at trial, are hereby denied.
The court will set this matter down for trial on the issue of damages as soon
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The term "push plate" was used by all
witnesses during trial, although it is described as a "beam slide" in the
"owner's manual". (Cl. Ex. 6, see discussion infra). For purposes of
continuity, the court will continue to refer to this mechanism as the "push
On cross-examination claimant acknowledged
that he could have placed both hands on top of the log once the log had been
situated on the rail. On redirect, however, claimant stated that his right hand
was on the bottom of this log due to its large diameter and weight to help
adjust the log into place on the rail.
Additional warnings contained in the owner's
manual include the following:
"Be sure everyone who operates or maintains the equipment reads and understands
this manual, the splitter operation and the safety instructions." (Cl. Ex. 6,
"Never place hands or feet by log or beam slide during the FORWARD or REVERSE
stroke." (Cl. Ex. 6, p 3).
"Grab a log by placing your hands on the bark side of the log. Place the log
against the wedge at the end of the splitter frame. Be sure the logs are no
more than 2 feet long and 1 foot in diameter...." (Cl. Ex. 6, p 8).
The court also notes the warning in the
owner's manual that "[b]e sure the logs are no more than 2 feet long and 1 foot
in diameter...." (Cl. Ex. 6, p 8).