New York State Court of Claims

New York State Court of Claims

MEDINA v. THE STATE OF NEW YORK, #2005-029-468, Claim No. 102349


Prisoner working in facility mess hall stood on milk crate to close window. As claimant leaned on window while attempting to close it, his hand went through the glass. Court finds defendant 60% negligent in allowing claimant to close window without proper equipment and claimant 40% negligent in the manner in which he pushed on the window.

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:
Adam M. Thompson, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 15, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 of liability.

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 feet away.

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 hospital.

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 accident.

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[1]
. 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 11B).
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 involving claimant.

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 made available.

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 York, 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, supra). 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 874).
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 York, 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 accordingly.

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 dismissed.

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.

February 15, 2005
White Plains, New York
Judge of the Court of Claims

[1] Exhibit 11B was substituted for Exhibit 11 as the witness stated some of his calculations on Exhibit 11 were incorrect. The Court notes that Exhibit 11B contains the notation that the distance from the floor to the hook is 8' 9½" but Dr. Shankman testified the distance was 9' 8½". The Court finds this discrepancy to be minor, at most.