New York State Court of Claims

New York State Court of Claims

HUNTER v. THE STATE OF NEW YORK, #2007-015-567, Claim No. 110486


Pro se inmate was awarded damages for exposure to tear gas accidentally discharged because of the negligent performance of work by independent contractor. State was liable as work performed by contractor was inherently dangerous.

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:
Devon Hunter, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 4, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, seeks damages for the unintended discharge of tear gas in the north mess hall of Great Meadow Correctional Facility on November 22, 2004. The claim also asserts a failure to provide appropriate and timely medical treatment following the incident. The claim proceeded to trial on September 12, 2007.

The claimant testified that at approximately 12:40 p.m. on November 22, 2004 he and his company had just entered the mess hall for lunch when he heard an “explosion” and observed tear gas canisters burst into flames and fall from the ceiling causing correction officers and inmates to run for the exit. According to the claimant, he was caught in the "melee" and unable to escape the gas for the two or three minute period required to exit the mess hall. The claimant together with other inmates and officers were evacuated to the main yard where they were attended by members of the facility medical staff. Claimant was seen by a nurse within one to one and one-half hours after the evacuation. He complained of blurred vision, chest pains, a burning sensation in his throat, dizziness and vomiting. The nurse recommended that he return to his cell, take a shower and dispose of his clothes. Upon returning to his cell the claimant requested permission for a shower from two correction officers. His requests were denied. Sick call the next day (Tuesday) was cancelled and there was no sick call on Wednesday or Thursday. As a result, the claimant was not seen in the infirmary until Friday, November 26, 2004. At that time a nurse gave him ibuprofen and scheduled an appointment with a doctor. The claimant testified that his complaints of blurred vision, swelling in his throat, headaches and chest and shoulder pain continued and that he was thereafter treated on December 2, 2004, December 6, 2004 and December 13, 2004. During these visits he was prescribed Naproxen and given an analgesic balm. On December 13, 2004 claimant was treated in the infirmary with complaints of throat swelling and an inability to sleep.

On cross-examination the claimant testified that he had laser surgery on his eyes a few months before the incident and was taking medication for this condition at the time the release of gas occurred. Claimant reiterated his prior testimony that he was denied permission to take a shower upon returning to his cell following the incident.

Defendant called Sergeant David Vaughn who testified that on the date of the incident he was assigned to escort employees of M.A.C.E. Security International (MACE) to the mess hall where they were to disable panels which were part of a gas system so that they could be refurbished. The two panels were located in a fortified glass booth which measured approximately six by twelve feet. Sergeant Vaughn called the maintenance department and confirmed that the electricity to the gas system was turned off and the MACE employees assured him that the system could not accidentally discharge. Sergeant Vaughn was waiting outside the booth while the MACE employees performed their work when gas was released from the ceiling. He estimated there were 100 - 250 inmates and staff in the mess hall[1] when the incident occurred. Sergeant Vaughn was asked why this work was performed during lunch time when so many inmates were in the mess hall to which he responded that he had confirmed with the maintenance department that the power was off. He testified that he was aware from his training that there was a battery back-up system but had been informed by the MACE employees that the system was disabled. Although Sergeant Vaughn testified he was unaware of a prior accidental discharge of tear gas in the mess hall, the claimant had previously testified that a similar incident occurred in the south mess hall sometime in 2003.

The defendant next called Correction Officer Eugene Petteys to testify. Officer Petteys has been a weapons training officer for 8 years and received his certification in chemical agents in 1999. He testified that he is familiar with the gas used in the mess hall at Great Meadow and with decontamination procedures generally. The gas, referred to by the witness as "C.S. gas", is an irritant used when necessary to prevent injury or loss of life. It is contained in canisters secured in turrets installed in the ceiling of the mess hall. Exposure to the gas causes short term effects including impaired vision, chest and breathing discomfort and burning of the mucous membranes.

Ted Nesmith was the defendant's next witness. Mr. Nesmith has been employed as a Physician's Assistant by the Department of Correctional Services for the past thirty years. His duties include the treatment of minor medical problems, including exposure to C.S. gas. He testified that in his experience exposure to C.S. gas results in only short term effects of a minor nature consisting of burning nose, eyes and shortness of breath.

On cross-examination Mr. Nesmith testified that the effects of exposure to C.S. gas can vary from person to person.
At the close of the evidence the defendant moved to dismiss the claimant's medical

malpractice claim for failure to present expert proof of a deviation from the relevant standard of care.

It was undisputed that Great Meadow permitted work to be performed on the tear gas system in the mess hall at lunch time when, according to the testimony of Correction Officer Vaughn, there were between 100 and 250 inmates and staff present. Separate and apart from any negligence in the manner in which the work on the gas system was performed by MACE employees, the conduct of the defendant in permitting the work to proceed at a time when the mess hall was in use, despite Correction Officer Vaughn's awareness of the potential danger to inmates posed by an accidental discharge, constitutes a direct form of negligence on the part of the defendant independent of any potential vicarious liability arising from the negligent acts of an independent contractor. Furthermore, as the Court of Appeals made clear in Rizzuto v L.A. Wenger Contr. Co. (91 NY2d 343, 352-353 [1998]), coordination of the work of contractors which fulfills a safety function may constitute sufficient control over the work site to provide a basis for liability under principles of common law negligence.

Next, the testimony of Correction Officer Vaughn established that the accidental discharge of gas likely occurred because the MACE employees failed to disable the battery back-up system thereby enabling the activation of the tear gas during the course of its work. It is the general rule that “a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” (Kleeman v Rheingold, 81 NY2d 270, 273 [1993]). For reasons of public policy, however, certain duties are nondelegable and this exception to the general rule "may be invoked where a particular responsibility is imposed upon a principal by statute or regulation or where the task at issue is inherently dangerous" (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 381 [1995] [citations omitted]).

This case requires consideration of the exception for inherently dangerous work, invocation of which can be fairly inferred from the claim[2] . In Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663 [1992], the Court of Appeals addressed the applicability of this exception and, in doing so, quoted section 427 of the Restatement, which states:
"One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger" [id. at 669].
The Court in Rosenberg made clear that application of this exception requires that the risk of harm inhere in the nature of the work and that the employer recognizes or should recognize the risk in advance of the contract (id. at 669). As the comment to section 427 makes clear:
“It is not . . . necessary to the employer’s liability that the work be of a kind which cannot be done without a risk of harm to others, or that it be of a kind which involves a high degree of risk of such harm, or that the risk be one of very serious harm, such as death or serious bodily injury. It is not necessary that the work call for any special skill or care in doing it. It is sufficient that work of any kind involves a risk, recognizable in advance, of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it, or that the employer has special reason to contemplate such a risk under the particular circumstances under which the work is to be done.”

As noted by the Court in Rosenberg, supra, the exception for inherently dangerous work has been applied in a variety of contexts to render an employer of an independent contractor vicariously liable including, for example, where the danger to pedestrians inherent in the work involved placing mats on the sidewalk and cleaning them with soap and water (Wright v Tudor City Twelfth Unit, Inc., 276 NY 303 [1938]); where work on scaffolding on the outside of a building without warning signs posed inherent danger to pedestrians passing below (Rohlfs v Weil, 271 NY 444 [1936]); and where installation of fireproof doors to elevators still in operation was inherently dangerous (Besner v Central Trust Co. of N.Y., 230 NY 357 [1921]). More recent examples of the application of the exception for inherently dangerous work include excavation work adjacent to an existing building (Klein v Beta I LLC, 10 AD3d 509 [2004]); the cleaning of the exterior of a building with bleach, which fell upon a pedestrian as she walked on the public sidewalk adjacent to the building (Kopinska v Metal Bright Maintenance Co., 309 AD2d 633 [2003]; and excavation of an area in a public thoroughfare for benefit of a private property owner (Emmons v City of New York, 283 AD2d 244 [2001]).

The foregoing cases lead this Court to the conclusion that the work on the tear gas panels, particularly when performed at a time when there were approximately 150 to 200 people in attendance, was inherently dangerous. The defendant thus may not avoid vicarious liability for the conduct of MACE based on its contention that the work was performed by another over whom it exercised no supervision or control[3].

Claimant’s testimony together with the medical records in evidence indicate that the claimant suffered no permanent injuries as the result of his exposure to the gas. The medical records in evidence indicate that the claimant was treated on ten occasions for his complaints resulting from the exposure, the last visit being December 20, 2004, less than one month after the incident occurred. Most of the complaints involved a burning sensation to the claimant's eyes and throat, chest pains, and blurred vision. The Court finds $1,500.00 a reasonable sum to compensate the claimant for his injuries, which were minor and of brief duration.

To the extent the claim alleges a cause of action for failing to provide prompt and proper medical treatment, it is dismissed for failure to present expert evidence of a deviation from the accepted standard of care (McDonald v State of New York, 13 AD3d 1199 [2004]).

Based on the foregoing, the claimant is awarded $1,500.00. To the extent the claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let judgment be entered accordingly.

December 4, 2007
Saratoga Springs, New York

Judge of the Court of Claims

[1]. A list of inmates treated for exposure to the gas was received in evidence as defendant's Exhibit C and reflects that 51 inmates were treated by medical staff at the "storehouse gate" as they exited the yard.
[2]. Paragraph 24 of the Claim alleges that “[c]orrections official D. Vaughn, contractors Hulbert and their employer were well aware of the injuries a person would sustain if directly exposed to the toxic gas. Therefore, it was imperative to take extreme precaution during the performance of their duties while disconnecting the North messhall’s [sic] gas system.”
[3]. This conclusion renders moot the claimant’s motion to strike the defendant’s supplemental bill of particulars alleging that the defendant was not liable for the acts of its independent contractor over whom it exercised no supervision or control.