New York State Court of Claims

New York State Court of Claims

TORRES v. THE STATE OF NEW YORK, #2006-013-509, Claim No. 102581


Inmate Claimant who was injured while following a direct order to help move a large locker failed to show Defendant's alleged failure to provide proper supervision, training or equipment. Claim is dismissed.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim was filed on June 9, 2000, and alleges that on or about October 18, 1999, while Claimant was incarcerated at Wende Correctional Facility (Wende), he was injured in an accident when he was struck by a large locker while moving it down a stairway.

Claimant was previously represented by counsel, who was permitted to withdraw. He alleges that he was ordered by Wende personnel to assist in moving this locker down the stairway. He testified that his failure to obey the order from a correction officer to provide such assistance would have subjected him to disciplinary action. Accordingly, he did as he was ordered. His claim sounds in negligence for the Defendant's alleged failure to provide proper supervision and/or training to him, and the alleged failure to provide the necessary training and equipment to allow Claimant to carry out the order safely. Moreover, Claimant alleges that the Defendant negligently hired, retained and trained the personnel who were supervising the Claimant and who directed him to assist in the transport of the locker, without supplying necessary assistance or equipment.

At the time of this accident, Claimant was 48 years old and his assignment was as a porter, generally performing sweeping and mopping duties. At the direction of a correction sergeant, Correction Officer (CO) Barrick ordered Claimant and two other inmate porters to move a locker from an area near the bakery to a location in the basement. The metal locker was large and bulky, and the testimony established an estimate of its weight at 150 pounds (
see Claimant's Exhibit 1). It had been emptied of all its contents, except for its metal shelves, and was pushed from the bakery area to the landing or platform at the top of the stairs, a distance estimated by CO Barrick to be some 10 to 15 feet. CO Barrick was assigned as the "Times Square Rear Deck Officer" and gave the direct order to move the locker. There was some testimony suggesting that a dolly might have been used to transport the locker to the landing, but there was insufficient evidence to support such a finding, and there was no evidence of what happened to the dolly thereafter. I find that one was not used. Additionally, although there was some testimony suggesting that two other inmates, from the garbage detail, were assisting in this move, there was similarly insufficient evidence to establish that there were more than the three porter inmates assigned to this task. Moreover, CO Barrick testified that he gave no permission and issued no order to the garbage crew to assist in this move.
Claimant testified that one of the other porters (Inmate Lopez) had a neck problem and did not participate in moving the locker. It was suggested that Inmate Lopez never advised the correctional staff that he would not help out, as he did not wish to face the possibility of an insubordination charge. Thus, Claimant contends that Lopez did not assist in moving the locker, but there is no evidence that the Defendant was aware of that, and CO Barrick specifically denied such knowledge.

The locker was standing upright and was situated on the platform at the top of the stairs. There were 12 or 13 steps down to the first landing (
see, e.g. Exhibits 3 and 5). With the two other inmates situated on the landing, Claimant was positioned on the stairway, walking backwards down the stairs, at what he testified was one or two steps from the top of the stairs. According to Claimant, someone pushed the locker at the landing, without his knowledge and without any warning or announcement, and the locker suddenly started falling down the stairs. The bottom right corner of the locker hit Claimant's right side, pinning his hands and his body to the wall, and gouged him in the abdomen (Exhibit 4). Claimant testified that it happened so quickly that he had no opportunity to move. He screamed in excruciating pain and the other inmates helped to pull the locker off Claimant and move him to the first floor landing where CO Barrick supplied a wheelchair, and Claimant was taken to the infirmary. He was given some pills and transported to the Erie County Medical Center (ECMC), where he had surgery on his right thumb, including the insertion of three pins, and a cast was applied. His abdominal laceration was cleaned out, but apparently no stitches were necessary. Claimant testified that his back, which previously had some arthritis and was painful, got worse as a result of this accident. He remained at ECMC for one day and was given pain medication, which was changed at one point because of certain side effects. Claimant also testified that subsequently one of the pins had to be removed because of an infection, and that its removal caused a "separation" or a "gap" which will create arthritis, and which a doctor advised him will require additional surgery.
Claimant presented no medical records at trial to support his testimony regarding his medical condition. However, while I had provided Claimant with the opportunity to supply a post-trial letter submission for the limited purpose of addressing his legal arguments relative to a Court of Claims decision presented to the Court by the Defendant, Claimant went well beyond that which was permitted. His post-trial letter appropriately addressed the legal issues, but also raised numerous other issues, and appended certain documents including some Department of Correctional Services' memoranda, medical records, an unusual incident report, and letters from his former attorneys. He sought to include other portions of the deposition testimony of Inmate Lopez, beyond the specific pages and lines admitted into evidence on the record at trial on behalf of the Defendant. He also raised issues with respect to his alleged emotional state of mind and ability to focus at the trial, etc.

The Defendant objected to this post-trial offer of additional proof, offered after Claimant had rested, after the State had presented its defense and rested, and after the matter was deemed submitted, except for the post-trial legal arguments on the law. The proof in this matter was closed, and I decline to consider any of the documents appended to Claimant's post-trial submission, and I further decline to consider any additional portions of the Lopez deposition beyond those that were specifically admitted into evidence (Exhibit C). Claimant's post-trial letter also complained of his inability to have presented his case at trial due to his emotional condition, living conditions, handcuffing during transport, etc. First, I note that these matters were not sufficiently raised at trial. Second, with respect to the documents and witnesses (Claimant complained that he was not given notice of the witnesses that the State contemplated calling in its defense), by letter dated May 26, 2005, Claimant was given nearly two months to make a pre-trial motion for the production of documents and witnesses for his direct case, until July 13, 2005. Claimant had written to me, and in reply on June 16, 2005, I declined to adjourn the trial and advised Claimant to prepare his pre-trial motions. Claimant again sought a delay, appointment of counsel and other relief (albeit not by motion), and by letter dated July 15, 2005, Claimant was again advised to prepare for trial. Claimant was given nearly four months' notice prior to the trial, and when the trial was conducted, Claimant was given a full and fair opportunity to present whatever proof and testimony he desired at the trial. The proof was closed, and there is no arguable reason or good faith showing to warrant reopening the trial to consider the proof now belatedly offered. Accordingly, I now address the merits of the claim.

There is no doubt that an accident took place on October 18, 1999, and that Claimant was injured as a result thereof. I accept that part of his testimony with respect to the manner in which the locker slipped down the stairs and that he sustained the injuries to which he testified. However, contrary to Claimant's testimony, CO Barrick testified that he gave instructions to the three inmates on how to move the locker, with two inmates on the stairs, and one inmate on the platform to tip it, with two inmates sliding it down the stairs. He noted that there was nonskid paint on the stairs and that the stairway was lighted. He identified and described the physiques of the two other inmates, and the capabilities of the inmates to perform the assignment. He noted that the locker slid easily to the landing from its previous location. Before the inmates started to move the locker down the stairs, he returned to his regular post some 50 or 60 feet away, a location from which he could not observe the stairwell.

Unfortunately for Claimant, he was unable to establish any evidence of negligence on the part of the Defendant. To the extent that he alleged negligence in the hiring, retention and training of the personnel who were supervising the Claimant and who directed him to assist in the transport of the locker, including the supplying of necessary assistance or equipment, no evidence whatsoever was offered, and those claims are deemed abandoned and are dismissed. There was no testimony with respect to the type or necessity of any equipment to move the locker, nor was there proof of the type of training that purportedly was required. Indeed, the uncontroverted deposition testimony of Inmate Lopez (Exhibit C, pg. 37, line 23 to pg. 38, lines 1-17), reveals that the same locker had been moved "[b]asically three times," both "up the stairs and down the stairs" and that Inmate Lopez and Claimant had been involved together in moving the locker on those occasions, with a third other porter assisting. Moreover, when asked at trial about Lopez's testimony in this regard, Claimant equivocated, only suggesting that the deposition was taken some four or five years after the incident, but not denying that he had ever moved the locker previously.

I accept as credible the testimony of CO Barrick that he provided instruction in how to move the locker down the stairs. In the absence of proof that any specialized training was required, an allegation offset by Claimant's admitted prior experience before his incarceration in construction and in moving furniture and other heavy objects, as well as his specific experience in having moved this locker up and down the stairs, no cause of action sounding in negligent training or supervision will lie. Moreover, the State is simply not required to provide unremitting supervision (
see Leibach v State of New York, 215 AD2d 978). There was no evidence with respect to negligence in failing to provide necessary equipment.
While inmates who have been injured while working in correctional facilities are not entitled to the full range of protections afforded by the Labor Law, they are nevertheless entitled to a workplace that is reasonably safe under the prevailing circumstances. On the other hand, the mere happening of an accident carries with it no presumption of negligence on the part of the State (
Fitzgerald v State of New York, 28 Misc 2d 283; Richards v State of New York, 205 Misc 3). This was an accident, pure and simple, which occurred when the locker slipped down the stairs, perhaps as a result of one or the other of the fellow inmate porters inadvertently pushing the locker too close to the edge of the stairs before tipping it back, or failing to alert the Claimant that they were doing so, and that led to the locker sliding down the stairs causing the injuries sustained by Claimant. Whatever the actual cause, it is not attributable to the negligence of the Defendant. I cannot ascribe liability to the State in the absence of any proof of any negligence.
The claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision, are now denied.


March 17, 2006
Rochester, New York

Judge of the Court of Claims