New York State Court of Claims

New York State Court of Claims

SUN v. THE STATE OF NEW YORK, #2006-028-012, Claim No. 107716


Synopsis


Judgment for defendant, after trial, in a claim brought by a prison inmate who fell from a ladder. Claimant failed to prove that the ladder was in dangerously defective prior to the fall.


Case Information

UID:
2006-028-012
Claimant(s):
ANDREW SUN
Claimant short name:
SUN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107716
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
STEVEN HOFFNER, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 13, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This action arose on September 23, 2002, at Oneida Correctional Facility, (hereinafter “Oneida”) when Claimant Andrew Sun was injured, allegedly because he had been given a defective ladder on which to stand while performing a work assignment. The accident occurred inside the television room of M-Dorm, where Claimant had been assigned to paint the ceiling. At the time of the accident, he was taping around one of the room’s windows prior to painting. The ladder that he had been given to use on this work assignment was a Werner Model 310, a 10- foot aluminum stepladder.
Fact Testimony and Evidence
Claimant, who was 40 years old at the time of trial, testified that he had an eighth grade education and had been in the military, receiving an honorable discharge. At the time of the underlying incident, he was in prison, and had been in prison on a few previous occasions, because of drug charges. He had received no disciplinary charges while in Federal prison and only one or two while in State prison. At the time of the accident, he had been at Oneida for approximately six months to a year.
He had previously been assigned to work as a painter’s assistant, primarily painting rooms and ceilings. When he had been housed at Great Meadow Correctional Facility, he was assigned to building maintenance, and within two weeks of arriving at Oneida he was at work painting the Administration Building. He worked on that project for two months, using a ladder that was similar to the one in M-Dorm, but newer. Claimant stated that he was never given any particular instructions on how to paint, nor any courses on painting techniques and safety. He learned how to paint by watching others and using common sense.
After finishing the work on the Administration Building, Claimant was assigned by Correction Officer Mark Roberts to paint M-Dorm. He initially painted the walls and ceiling in the bathroom. On that job he did not use a ladder because the ceiling was low, and he was able to reach all of it by stretching. It took him two to three weeks to finish the bathroom. He was next assigned to paint the big dayroom and for the first time used the ladder that was later involved in the accident.
He said that it wasn’t “the best ladder in the world”
[1]
but that he had learned to use whatever he had to work with. He felt that the ladder was flimsy and that it wasn’t in the best of condition or particularly sturdy. On one occasion, an inmate porter held the ladder for him for five to ten minutes, but he did not request regular assistance because he knew no one would be assigned for that purpose. Claimant said that he never complained about the ladder to Officer Roberts, because he believed he had to use what tools he was given or find another job. He further indicated that he had no problems with Officer Roberts, whom he considered to run a tight ship and also to be a “neat freak.”
After completing the big dayroom, Claimant was then assigned to paint the smaller recreation room (television room). On the morning of September 23, he reported to Officer Roberts who unlocked the ladder from where it was stored. Claimant then took the ladder, paint and other supplies to the room, opened the ladder, and proceeded to tape off the room. He was still prepping before painting, specifically taping the ceiling, since he was going to be painting the walls. As he was performing this task, standing on the fourth step down from the top (but excluding the top), he felt the ladder shifting and wobbling, twisting to the left and right. The second time it did this, he fell to the floor. His hands had been above his head, and the ladder was set in a corner, about a half foot from the walls.
When he fell, Claimant hit his face on the adjacent window, to his right, while the ladder moved away from him to the left. He was “out cold” after he hit the windowsill, and his next memory was of people asking, “Are you okay?” He was still in the recreation room when he came to, but was soon thereafter picked up and taken to the infirmary. When asked if he was leaning out away from the ladder when he fell, Claimant said that he was not. He stated that he knew better than to do that simply as a matter of common sense. Consequently, his routine was to tape the area he could reach easily and then get down, move the ladder, and climb back up to continue the taping.
Photographs taken of Claimant at the infirmary (Exhibit 1) show that he was bleeding from his nose and his ear. After performing a number of tests, including a CAT scan, the facility medical staff determined that he had injured his head around the area of his eye. He said that the pain was steady for about two or three months and then more sporadic for the next several months. He was given medication for pain and a muscle relaxant. Claimant stated that his shoulder still feels uncomfortable when he moves it but that his wrist seems to be getting better. He also continues to see black spots, but that too was improving very gradually. Claimant was kept in the infirmary for two weeks and, shortly after he returned to general population, he was released from prison.
At present Claimant resides with his parents in New York City and has worked as a cashier and in food preparation. Because he is a veteran, he was able to obtain a street vending permit. He has not been able to work as a painter, however, because he gets “paranoid” when he tries to get on a ladder. Claimant has also been diagnosed with non-Hodgkin’s lymphoma, and at the time of trial he was waiting for a bone marrow donor to be located.
Timothy Brown, an inmate who was brought from Hudson Correctional Facility for the trial, testified that in September 2002 he was a porter at M-Dorm in Oneida, with general duties of sweeping, mopping and keeping the floor clean. He considered Claimant to be a good acquaintance. He testified that, to his knowledge, there was only one ladder in M-Dorm. He had never used it and had never witnessed anyone using it, but he did on one occasion carry it and found it to be “flimsy, shabby, loose.” He said you could tell it had been used for a long time, and it felt to him like it was coming apart. He recalled that he had to use both hands, one to carry it and one to hold the two halves of the ladder together.
Earlier in the year, perhaps in April 2002, he told Correction Officer Roberts, whom he described as the main officer of M-Dorm, that the ladder was a “piece of junk” and questioned when the dorm would be able to get a new ladder. He reported Roberts as saying that he didn’t know but hoped that it would be soon. Brown said that he also heard other inmates, whose names he could not provide, mention to Roberts that they thought the ladder should be replaced and asking when they could get a new one. With respect to job assignments, Brown stated that it was in an inmate’s “best interest” to do whatever job was assigned.
As had Claimant, Brown described Officer Roberts as being firm but fair, and he said that neither he nor most of the other inmates had any animosity toward him. He ran a tight ship, particularly in matters of maintenance, and other issues or problems were handled in a timely fashion. Brown stated that he had come forward with his testimony not so much because Claimant was a close friend but because he had been hurt and he (Brown) knew of the condition of the ladder.
Another inmate, Wesley C. Smith, testified as a defense witness. In June of 2004, almost two years after the accident, he spoke to Officer Roberts when he learned that questions about Claimant’s accident were being raised among the officers. When Roberts requested that he do so, Smith wrote a statement, dated July 8, 2004. His reason for doing something was,
as he said in the statement (Exhibit M), “it isn’t right someone like Sun, who caused his own fall to get payed for it.” Smith’s statement read, in relevant part, as follows:
On Sept 23th 02 I was standing in the dayroom of M dorm with my back to the wall, next to the icemaker, looking in the window of the small day room that’s across the room. A couple minutes before Sun had fell off the ladder I’d been in the room talking to him. He was not painting. He was standing on pulling tape down off a light on the ceiling. By the way, the ladder he was using was a step ladder and when I was in the room he was stand[ing] on about the fourth step from the top, which was past the safe zone. What did Sun in is leaning over to the left to pull more tape down.
Smith also wrote that he had been on the ladder many times without a problem.
Gerald Palin, an employee at Oneida, testified that in 1992 he was in charge of tool control for the facility. His job consisted of monitoring the inventory of tools, making sure safe procedures were followed in working with tools, and making an annual audit: a visual inspection of all tools. He testified that he was familiar with the subject ladder and that there were many similar ladders in the facility. The ladder was a Class A tool, which was to be used by inmates under the supervision of facility employees. For example, he explained, that would mean that in a situation such as the one involved here, a DOCS employee would have to be in the same general area.
When he inspected tools such as this ladder, he would perform only a visual inspection to make sure that it was in sound condition; it could not be taken down and physically inspected because it was secured by a chain and padlock except when in use. He typically performed his annual audit in September but he had not inspected this ladder before he learned of the accident. It was likely, therefore, that he had last seen it a year earlier. There was also a weekly inspection of all tools, not for inventory but to examine the items for defects, carried out by the unit officers. On cross-examination, he acknowledged that he did not instruct other employees about inspection techniques.
Correction Officer Mark Roberts, a long time employee at Oneida, testified that during the fall of 2002, he was assigned to M-Dorm. His shift there was typically a double one, from 7:30 a.m to 3:45 p.m. He stated that he was familiar with all three of the inmates who had testified previously: Claimant, Timothy Brown, and Wesley Smith. Roberts stated that he was the one who typically issued tools to inmates and he had issued the ladder in question to Claimant on the day of the accident. He said that the ladder had been and was on that occasion in “good condition.” If it was in poor condition, he would have decommissioned it and obtained another one, and if he ever received a complaint about it, he would have inspected it immediately and decommissioned it if a defect was found. It was also his practice to inspect tools each time he issued them to inmates and to hold an item back if there was any signs of defect. On cross-examination, Roberts acknowledged that he had received no training in ladder safety, and he also stated that it was possible inmate Brown had carried the ladder on some occasion. He also noted that he had observed Claimant painting in the past and had never known him to paint or do prep work in an unsafe manner.
Relevant documents entered into evidence included the report of a weekly health and safety inspection carried out on September 16, 2002. The report (Exhibit 6, F) indicates that “ladders; scaffolds” in M-Dorm were satisfactory. Another weekly health and safety inspection was held on September 23, 2002, the same day on which Claimant was injured, and again the report (Exhibit F, p 2) lists the dorm’s ladders and scaffolds as “satisfactory.”
The Inmate Injury Report completed by a facility nurse on September 23, 2002 (Exhibit A), contains the following description of the incident: “Alleges painting on ladder - fell from ladder (approx. 20 ft).” That report was countersigned by Claimant. The UIR (Unusual Incident Report), dated October 9, 2002 (Exhibit B), contains the following description of the event:
On 9/23/02 at 9:20 AM, while CO Roberts was at officer’s station on M-Dorm two inmates ran out of the big rec room and reported to CO Roberts that I/M Sun (88T1916) had fallen off the ladder he was using while taping to paint in the small rec room. CO Roberts responded to find I/M Sun on the floor bleeding from the nose. I/M Sun stated he was taping the ceiling from the wall before painting when he felt the ladder twist and fell to the ground.
R. Stay, the facility’s Deputy Fire and Safety Officer, investigated the accident immediately after it happened and made a report the same day (Exhibit G). Noting that the ladder had a usable limit of 7 feet, 8 inches and that the ceiling was 13 feet, 10 inches high, he concluded that Claimant “applied to (sic) much outward force on the top part of the ladder causing the ladder to tip over.” He also concluded that the ladder had been damaged when it fell: “The bottom leg was bent, the paint tray tabs were broken off and one of the top hinge bolts popped through the hole.”
Several reports had been prepared by Correction Officer Roberts (Exhibits K, L). He reported that two inmates came out and told him that Claimant had fallen off the ladder and when he went into the room, he found Claimant sitting on the floor, bleeding from the nose. Claimant was conscious, and he initially said that he thought he was alright. It was Roberts who secured the room and notified Safety Officer Stay.
Expert Testimony and Evidence
Claimant’s expert, Joseph J. McHugh, of Robinson and Lapina, of Clifton Park, New York testified, in accordance with his report (Exhibit N and Exhibit 5), that in July 2004 he examined the ladder involved in Claimant’s accident. He found that the back side rail of the ladder was disconnected from the top step; the spreader bars were broken; the ladder’s feet were worn; the bottom right front rail was twisted; and there were numerous missing or loosened rivets. The nature of these defects – particularly the loosened rivets, elongated rivet holes, the condition of the right front rail, and contamination of the shoes – preexisted the fall and indicated to him that the ladder had been in poor condition for some time and had become worse a considerable period of time prior to Claimant’s fall, although acknowledging that the twisted lower leg and the dislodged arm was damage that was likely caused in the fall. He cited numerous violations of the applicable ANSI (American National Standards Institute) standards. In McHugh’s opinion, the ladder had exceeded its useful life.
Photographs taken by McHugh show, in particular, the bottom of a front side rail (the portion of the ladder that rests on the floor, what some would describe as a “foot” of the ladder) that is twisted inward to the extent that it does not make solid contact with the floor (Exhibit 5, photos 5, 6, 7, 8). In addition, the top rear side rail of the ladder (the top of the “leg” supporting the top platform) shows an elongated rivet hole that has allowed the rivet to come loose, causing the rail (or “leg”) to be disconnected from the corner of the platform (id. photos 8, 9).
Defendant’s expert, Vito J. Colangelo, of International Technomics Corporation, testified that he had conducted a study in October 2004 to determine the cause of the ladder’s failure. He determined that the ladder had been manufactured in 1988 and Colangelo agreed with McHugh that the right front rail was bent and deformed. That feature and the enlarged rivet hole and detachment of the right front rail from the spreader bar was, he found, “entirely consistent with the rear leg assembly being displaced to the left as the ladder toppled over” (Exhibit P, p 3). He found that each of the ladder’s feet was corrugated and slip-resistant and securely attached to the end of each rail. In his opinion, all of the defects of the ladder – “the inward bend and cracking of the right front rail, the separation and bend of the right spreader bar, the enlargement of the spreader bar rivet hole and bulging surrounding the rivet hole, the deformation and separation occurring at the top cap” – were all consistent with damage that would have been caused when the ladder toppled to the right and caused the rear leg assembly to shift to the left. In Colangelo’s opinion, none of the damage appeared to have existed before the accident. In fact, damage such as that on the right front rail would have prevented the ladder from ever being put up. In his view, therefore, the accident occurred when Claimant moved his upper body outside and right of the ladder rails; any significant damage to the ladder occurred when it fell; and the type of movement and toppling Claimant described would be consistent with the post-accident position of the ladder, laying on its right side.
Colangelo also took his own pictures of the ladder in question. One of these is a front view showing the ladder standing upright with the bent front rail (Exhibit P, figures 1, 7). It appears that the foot of that rail is in contact with the floor only on one end or side. The feet of all the rails show fairly consistent wear over their entire surface (id. figures 15-18).
Applicable Law and Discussion
When prison officials direct an inmate to participate in a work program, the State owes 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 [3d Dept 1996]; Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]). New York State Labor Law provisions applicable to worker safety do not govern the relationships and duties between the State and its inmate workers, but they may provide evidence of a standard of care that is applicable to the State in a common law action for negligence (D’Argenio v Village of Homer, 202 AD2d 883 [3d Dept 1994]; Lee v State of New York, 187 Misc 268 [Ct Cl 1946]). The State does not have a duty to provide uninterrupted supervision of its inmates, including those in its work programs (Colon v State of New York, 209 AD2 842 [3d Dept 1994]).
An inmate who is performing a work assignment is responsible for his or her failure to use ordinary care (see Carter v State of New York, 194 AD2d 967 [3d Dept 1993]), and the inmate’s prior experience and training is a factor to be considered in determining the reasonableness of both the State’s actions and the actions of the particular inmate (Martinez v State of New York, 225 AD2d 877, supra). Consequently, claims have been dismissed where an inmate has refused to use proper safety equipment or to call a supervisor’s attention to the fact that such protective equipment as had been provided had become unusable (Maldonado v State of New York, 255 AD2d 630 [3d Dept 1998]; McLoud v State of New York, 237 AD2d 783, 785 [3d Dept 1997]). In addition, “[t]here is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense” (Felle v W.W. Grainger, Inc., 302 AD2d 971, 972 [4th Dept 2003]; see Liriano v Hobart Corp., 92 NY2d 232, 241-242 [3d Dept 1998]). If a risk of harm is apparent, “[t]he open and obvious nature of [the] risk negates any duty to warn on the part of the [defendant]” (Lamb v Kysor Indus. Corp., 305 AD2d 1083, 1085 [4th Dept 2003]; Lauber v Sears, Roebuck & Co., 273 AD2d 922 [4th Dept 2000]; Scardefield v Telsmith, Inc., 267 AD2d 560 [3d Dept 1999], lv denied 94 NY2d 761 [2000]; Banks v Makita, U.S.A., 226 AD2d 659, 660 [2d Dept 1996], lv denied 89 NY2d 805 [1996]).
As to weighing evidence and assessing the veracity of conflicting testimony, that is a responsibility of the Court, as finder of fact (Vizzini v State of New York, 278 AD2d 562 [3d Dept 2000]; Colangione v State of New York, 187 AD2d 844 [3d Dept 1992]; see Savio v State of New York, 268 AD2d 907 [3d Dept 2000], lv denied 95 NY2d 758 [2000]). In addition, when presented with conflicting opinions of experts, it is the duty of the trier of fact to weigh the testimony of the experts and determine which should be accepted (Gleeson-Casey v Otis Elevator Co., 268 AD2d 406 [2d Dept 2000]).
There is no question but that the ladder shown in all the photographs presented at trial is in a dangerous and defective condition. The most obvious and critical defect is the inward bend of the right foot rail and foot of the ladder. Both experts, however, concluded that this defect was most likey caused by the fall, not a preexisting condition. The same is true with respect to the other significant item of damage: the enlarged rivet hole and detachment of the right front rail from the spreader bar. If either of those defects had been present before the accident, Claimant would have been simply unable to set the ladder properly, yet there was testimony that he not only set it up but used it safely when painting the larger recreation room.
With those two accident-caused defects taken out of the equation, however, there is simply not enough evidence of significant defects in the ladder so as to make it unsafe to use and capable of spontaneously twisting and falling. This is true even if the Court accepts and credits all the testimony of specific observations about the ladder: that it felt flimsy and unsafe to Brown when he carried it, that one or more of the spreader bars were broken; that the ladder’s feet were worn; and that there were numerous missing or loosened rivets. There was no competent, convincing explanation about how defects of that sort could suddenly cause the type of instability testified to by Claimant. The worn feet of the ladder could not have caused the accident, because it is evident, from the location of the ladder after it fell and the twisting nature of the injury to the front rail foot and the separation at the top cap that the force applied to the ladder was a twisting one, rather than slipping or sliding or simply falling down. In order to have the ladder twist with sufficient force to mangle the foot of one rail and separate the top cap from a side rail, there had to be some sort of uneven force applied to it, most likely from above. The most logical and simple explanation for the fall, for the condition in which the ladder was left, and for Claimant’s injuries themselves was that he had gone too far up the ladder steps and was leaning over to the side in an effort to remove or apply tape to the ceiling, window or wall.
Brown’s testimony that he and other unnamed inmates complained repeatedly to Officer Roberts about the condition of the ladder was not credible and not convincing. The Court accepts that Officer Roberts is, as others have characterized him, a “neat freak” who ran a “tight ship.” It is not reasonable to think that he would ignore such complaints for a long period of time and yet conduct weekly safety checks of the tools and equipment, declaring the ladder to be in “good” condition.
The Court holds, therefore, that Claimant has failed to establish, by a preponderance of the credible evidence, that Defendant supplied a dangerously defective ladder to him and that such defects were a proximate cause of Claimant’s injuries. The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing the claim.
Let judgment be entered accordingly.

April 13, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. Unless otherwise indicated, all quotations are from the Court’s trial notes or from the electronic recording of the trial.