This claim for personal injuries alleges that the State of New York was
negligent in failing to properly care for and protect claimant and in failing to
maintain Green Haven Correctional Facility (hereinafter Green Haven) in a
reasonably safe condition. The second cause of action asserts that the State
was negligent in failing to provide claimant with proper medical care. The
trial of this matter was bifurcated and this decision deals only with the issue
Inmate Alberto Rivera testified that he is currently incarcerated at Fishkill
Correctional Facility but on February 11, 1999 he was incarcerated at Green
Haven. He stated that on February 11, 1999 at about 7:00 a.m. he was in the
Green Haven East Side Mess Hall having breakfast with about 50 to100 inmates.
He stated that one of the windows was open and he requested that it be closed.
Rivera testified that claimant was given a direct order to close the window by a
correction officer (hereinafter C.O.) whom he did not recognize. He testified
that he was seated at the table closest to the open window, approximately ten
Exhibits 10 through 13 are photographs of the window. The witness marked
Exhibit 10 with a red triangle to indicate which window was open and a red "x"
to indicate where he was sitting. He testified that Mr. Medina walked over to
the window and stood on a milk crate located by the radiator so he could reach
the window. Rivera stated that Medina pushed on the window, the glass broke and
fell on his hand. Rivera put a red triangle on Exhibit 11 to indicate the
portion of the window that broke.
Claimant testified that on February 11, 1999 he was incarcerated at Green Haven
and was working in the East Mess Hall at approximately 7:00 that morning. He
testified that he cleans the mess hall after the inmates leave; that his job
duties did not require him to open and close windows. Medina testified that an
inmate yelled that he was cold and wanted the window closed. A C.O. told
claimant to close the window. Medina stated he told the C.O. he could not close
the window without a pole. The C.O. then allegedly gave Medina a direct order
to close the window and claimant was required to comply. He stated he stood on
a milk crate and attempted to move the window when his right hand went through
the glass, causing lacerations. He stated he was eventually transported to a
Claimant stated that he did not receive a misbehavior report nor was he
reprimanded in any way as a result of this incident. He also stated that he
could not reach the window latch while standing on the floor and was not
provided a ladder, step stool or a pole to do so.
Claimant stated that following his surgery, he did not receive pain medication
for approximately six days and during this period he had difficulty sleeping
because of the pain.
On cross-examination, claimant stated that he started working in the mess hall
in the summer of 1998. Prior to his accident, he never witnessed a window
Claimant called Dr. Jay Shankman as an expert in the field of Environmental
Safety and Health. Dr. Shankman testified that he has a Master's Degree in
Occupational Safety and Health and a PhD in Environmental Safety and Health. He
stated he has been in the safety and health field for 34 years and the forensic
field for 22 years. He identified himself as a Forensic Safety and Health
Examiner. He stated that he has been qualified as an expert witness on many
occasions in both Federal and New York State Courts. The Court accepted Dr.
Shankman as an expert, without objection.
Dr. Shankman testified that he visited the Green Haven East Mess Hall on March
19, 2003 accompanied by both claimant's and defendant's counsel. He stated he
took measurements of the window in question. He also inspected the glass in the
window and determined that two pieces of glass in one pane of the window had
been replaced with plexiglass. The witness stated that he took the photographs
that were marked into evidence as Exhibits 10 though 14. Dr. Shankman stated
that each rectangular area within the window measured 10" x 9". He stated that
it was 9' 8½" from the floor to the spot where the latch is located to
open/close the window
. He also stated that the distance from the floor to the top of the radiator is
44" and from the floor to the top of the window sill is 55" (see Exhibit
Dr. Shankman stated the window is on a hinge and the window panels open in. He
stated that each panel has an "eye" which has to be unlatched. He stated the
proper manner to open and close these types of windows is with a long pole with
a "hook tool" on the end of it. The witness stated that Exhibits 12 through 14
show the "eye" on the window for the hook to attach to so the window can be
opened/closed. He testified that the windows are heavy, weighing 30 to 40
pounds each. The witness stated it would be very difficult to open or close
these windows without a pole because the person would have to use a ladder or
climb to reach the window.
Dr. Shankman opined that claimant was sent into a hazardous and dangerous
condition without the proper equipment to close the window. He testified that
claimant should have been provided with a proper tool - a 20' pole - to open and
close the window. He also opined that the manner in which the claimant closed
the window was dangerous and hazardous. The witness stated that he examined the
windows and discovered they are made of ¼" plate glass, not safety glass.
The witness opined that the windows should have been made of safety glass.
When called by claimant, C.O. Bruce Forman testified that he is currently
employed at Green Haven and was so employed on February 11, 1999. On that date
he was assigned to the kitchen as the garbage officer. At about 7:00 a.m. he
was in the kitchen, not the mess hall, and did not witness the incident
C.O. Forman stated that if an inmate working in the mess hall left his work
station, went to the window, climbed up to close it and the window broke, the
inmate would not necessarily receive a misbehavior report, even if he was not
given an order to close the window. He stated that no particular inmate is
assigned to open/close windows in the mess hall. He said inmates, C.O.s and
even supervisors open/close windows in the mess hall. He also stated that
because a long pole with a metal tip is a security risk, such a pole cannot be
On cross-examination, the witness testified that he did not order claimant to
close the window and does not know of any C.O. who would give such an order. In
his 17 years working at Green Haven, he is unaware of any other accident
concerning opening or closing a window.
Also called by claimant was Captain Stephen Albury who testified that on
February 11, 1999 he was working at Green Haven but did not witness claimant's
accident. He testified that an inmate may open/close a window without a direct
order from a C.O.; however, windows are usually opened/closed when a C.O.
directs it. The witness stated that he does not recall ever seeing a pole used
to open/close windows in the mess hall.
On cross-examination, the Captain testified that since claimant was a worker in
the mess hall, it would have been acceptable for claimant to close the window
without a direct order. He also stated that he never observed or heard of
anyone getting hurt opening or closing windows prior to February 11, 1999.
The State rested without offering any evidence or calling any witnesses.
It is well settled that when the State, through it 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 and reasonably safe
equipment with which to work (
Martinez v State of New York
, 225 AD2d 877; Kandrach v State of New
, 188 AD2d 910). Although inmates who are injured while working in a
prison work program are not entitled to the full protection afforded other
workers by the Labor Law, they are entitled to a reasonably safe workplace
(Kandrach v State of New York
). The State is not an
insurer of an inmate's safety and the mere happening of an accident does not
require the imposition of liability (Condon v State of New York
, 193 AD2d
The trial court, in its capacity as trier of the facts, must view the witnesses
and consider their statements upon direct and cross-examination in determining
whether a witness is credible and the weight, if any, to be given to the
evidence (see PJI 1:8, 1:22, 1:41; see also
Johnson v State of New York
, 265 AD2d 652; De Luke v State of New
, 169 AD2d 916).
Upon listening to all the witnesses, I find as follows: 1) claimant was not
given a direct order by a C.O. to close the window; 2) it was not required that
claimant receive a direct order to close the window; 3) an inmate complained
that the mess hall was cold; 4) claimant climbed on a milk crate so he could
close the window; 5) as claimant attempted to close the window, he put his hand
on the window pane and leaned too hard upon it causing the window to break
thereby causing injury to claimant's right hand.
I find that the defendant was negligent in allowing claimant to close the
window without proper equipment. However, I also find that claimant was
negligent in the manner in which he pushed on the window to close it. I find
claimant's actions to also be a proximate cause of the accident. I apportion
responsibility for claimant's injury as 60% to the defendant and 40% to the
claimant. The Chief Clerk is directed to enter an interlocutory judgment
With respect to the second cause of action, I find that claimant failed to
establish by a preponderance of the credible evidence that the defendant was
negligent in rendering medical care to claimant. Thus, that cause of action is
Within 30 days of receipt of this decision, counsel for both sides are hereby
directed to consult with each other to establish possible conference dates
regarding outstanding discovery with respect to the issue of damages and to
contact the Court regarding same. The Court will then set the matter down for
trial on the issue of damages as soon as practical.