New York State Court of Claims

New York State Court of Claims

CHERRY v. THE STATE OF NEW YORK, #2006-016-076, Claim No. 106880


Synopsis



Case Information

UID:
2006-016-076
Claimant(s):
ERIC K. CHERRY
Claimant short name:
CHERRY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106880
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Eric K. Cherry, Pro Se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Dewey Lee, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 20, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the trial of the claim of Eric Cherry, in which it is alleged that Mr. Cherry injured himself after having been ordered onto a scaffold with ice and snow on it at the Otisville Correctional Facility.
On January 10, 2002, claimant was a member of an inmate construction crew that was building a compost site at Otisville. Cherry recalled that at 9:00 a.m., a civilian employee, Thomas Quinn, asked the crew to go up on the roof to begin work. According to Cherry, it had “snowed and hailed” the day before, and there was still some ice and snow on the roof, so the inmates asked Mr. Quinn to “[g]ive us some time for the ice to melt.” Claimant testified that they waited about two hours and then Quinn gave them a direct order to go on the roof, saying, “We need to get this job done.”
Cherry said that the inmates then went up on what he described as an “inmate, man-made scaffold” with no “safety harness or safety ladder.” He described what happened next as follows:
I went to get up on the roof but then they didn’t have [a] ladder. I had to put my foot on the second railing and push up on the roof. So, when I went to put my foot up on the railing, my right foot on the roof, I went to push up on the roof, my foot slid back and when it slid back, I caught myself from falling but at the same time the pain shot through my leg, my arm, and my back. I didn’t fall or [anything], I just caught myself but the pain was so strong that I couldn’t move. So, I leaned back . . . and grabbed on to the railing. I couldn’t move because my back was pulled out.

Cherry continued that a correction officer asked him if he was able to come down, and he said he was not, so an “emergency crew” came to bring him down. He was then taken to the medical clinic at Otisville, where he was given medication.
Claimant testified that he was released from the clinic the next day and felt fine for a while, but then as he started walking and working, his back began to hurt. He was sent back to the clinic where x-rays were taken, and he was told by a doctor that he might have arthritis. He explained that thereafter, his treatment included seeing a physical therapist and being prescribed orthopaedic boots. He also went to Albany Medical Center where he was issued a back brace and was told not to do heavy lifting.
* * *
Quinn, a Department of Correctional Services civilian employee, testified that he was a “Corcraft Construction Program General Mechanic.” He was at Otisville on January 10, 2002, and was on the scaffold with Cherry at the time of the accident. Quinn testified that he saw Cherry, who was on his left, lifting his leg up to try to get on the roof: “He just said . . . he can’t move, his . . . leg hurt, his back hurt and he just couldn’t move and he was actually leaning on the roof with his . . . hands, to try to steady himself.” Quinn added that the roof was approximately 3 feet above the scaffolding, and he maintained that claimant “just lifted his leg. He didn’t even try to pull himself up.”
Quinn testified that there was no snow on the roof at the time of the incident, adding that he would not have directed the inmates on the scaffolding or roof if there was snow present. Quinn explained that the floor of the scaffold was made of two-by-fours, which even if wet are slippery. As to the roof, Quinn stated “[y]ou don’t even go on the roof when there’s moisture on it.” Quinn also testified that he never ordered Cherry to go up on the roof and said he did not recall the inmates complaining about ice.
As to safety harnesses, Quinn testified that they were available “on site,” as he had seen them in a trailer. Asked if the inmates could decide whether or not to wear harnesses, Quinn said “No. They’re supposed to wear the harnesses . . . ,” although he essentially conceded that dealing with safety harnesses was not part of his job; he explained that there were three civilian employee mechanics on the job: one who was in charge of Cherry’s crew, a second who was “lead guy” on the job, and Quinn himself, who was there “helping.”
* * *
The State has a duty to exercise reasonable care in providing for the safety of inmates who participate in work programs. See, e.g., Vizzini v State of New York, Ct Cl, December 22, 2004 (unreported, Claim No. 104290, Patti, J., UID#2004-013-522
[1]
).
In this case, claimant testified that he was not provided with a safety harness, while Quinn testified that harnesses were available. In any event, claimant did not fall from the scaffold in question. As set forth above, he testified that his “foot slid back and when it slid back, I caught myself from falling . . . ” In view of the foregoing, he failed to demonstrate how a safety harness would have prevented his injury. Similarly, as to a “safety ladder,” claimant failed to demonstrate the relevance of a lack thereof.
As to the presence of snow and ice on the scaffold, claimant and Quinn provided contradictory testimony. It cannot be discerned from claimant’s photographs (exhibits 1 and 2) whether there was ice and snow on the scaffold. Moreover, claimant failed to introduce any weather records to substantiate his claim.
Accordingly, I find that claimant has failed to prove negligence on the part of defendant by a preponderance of the evidence. Accordingly, claim no. 106880 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

November 20, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]This and other decisions of the Court of Claims may be found on the Court’s website: www.nyscourtofclaims.state.ny.us.