Dennis Watson alleges in Claim Number 107677 that while he was incarcerated at
Fishkill Correctional Facility (hereafter Fishkill) he was seriously injured on
November 7, 2002 in the course of his work assignment replacing steam pipes and
traps at the direction of a supervising plumber employed by the State of New
York. More specifically, Claimant alleges that because of the Defendant’s
negligent failure to provide a safe workplace, safe equipment and adequate
supervision, he was injured when he fell from a broken ladder he was provided
and instructed to utilize. Trial on the issue of liability commenced on May 30,
2006, and after several continued trial dates, trial was concluded on October
26, 2006. This decision relates only to liability.
Dennis Watson testified that he was 36 years old on the date of the accident,
and that he was first convicted of a crime - assault - in 1980 when he was 16
years old. On November 7, 2002 he was serving a continuing sentence for crimes
committed in 1984. Although he had been paroled in 2001, he was again
incarcerated due to a parole violation. During the 18 years he spent in prison,
Mr. Watson obtained his GED and worked in various job assignments, including
painting, plumbing, electrical, custodial and maintenance jobs, and worked on
“an outside community gang” as well doing “free public service
for the public.” [T-345].
service involved painting churches, mowing cemeteries, constructing “parks
for kids.” [T-346]. He had also worked as a nurse’s aide and in
Mr. Watson testified that he arrived at Fishkill in August 2002, and estimated
that he had been there approximately 3 weeks before being assigned to a position
he had sought on the plumbing crew in the 21-A building plumbing shop. He
recalled interviewing with Mr. Winston Bailey, the civilian 21-A building
plumbing supervisor, and then being assigned to work on the plumbing crew full
time. With him on the crew during the time period of his accident were Albert
Santabrea, Victor Jossiah and Richard Alvarez.
Claimant’s normal working hours at the plumbing shop were from 8:00 a.m.
to 3:00 p.m. Working hours for some of the other members of the crew,
including Victor Jossiah, were during the afternoon only. As part of the
plumbing crew, Mr. Watson explained that they did various jobs to maintain the
21-A building. They would “change sinks, faucets, toilets that
don’t stop, . . . replace toilets, . . . replace radiators, . . . replace
steam pipes, and . . . unclog drains, toilets. That’s basically it.”
[T-353]. There were times he would be asked to do work after 3:00 p.m. as
well. Even after-hours, as an inmate plumber, he might be called out for a task
from his housing unit, but always under escort of either a correction officer or
his plumbing supervisor, Mr. Bailey. By way of explaining his understanding of
what an inmate’s options are when told to do a task, Mr. Watson said
“If you’re assigned to a program, regardless, you have to do what
the Correction Officers . . . give you an order to do. If you don’t like
the order . . . [w]e would have to take the order that’s given to us. If
we don’t follow the order, they will lock us up, put handcuffs on us and
put us in a Special Housing Unit.” [T-354-355]. An inmate has “to
take the order and file a grievance afterwards.” [T-355]. The orders of
civilian employees, too, were to be similarly regarded at the risk of
The locked tool cart kept in the plumbing shop usually contained several
different kinds of wrenches, screwdriver sets, a soldering gun, and a hand rotor
to unplug clogs, scrapers, putty, hammers, socket sets, and a hand puncher, and
would be rolled from the shop to wherever the job was. Inside the plumbing
shop was a locked metal cage where tools classified as “Class A
tools” - such as ladders - were kept chained inside. [T-356]. Ladders
could only be transported with a civilian or a correction officer present.
Anytime a ladder or any other tools were needed for a job, inmate crew members,
accompanied by Mr. Bailey, would go to the plumbing shop, Mr. Bailey would
unlock the cage, and an inmate would push out the cart and while another carried
the ladder. Mr. Watson said that he had never carried a ladder through the
prison without Mr. Bailey being present.
Prior to the day of the accident, Claimant had been to the 21-A steam room or
boiler room - located in the basement of the building - “roughly . . . 35,
40 times . . . ,” [T-358] having gone down there two to three times per
week, generally for the purpose of turning off valves for repairs to specific
pipes being worked on or for setting the steam boiler. Some of the valves for
such shut offs could be reached while standing on the ground. Reaching others
required getting on a ladder or other implement to gain access.
Mr. Watson said he had never been sent alone to the steam room to turn a valve
on or off and reiterated that the procedure, always, was to be escorted to the
steam room by Mr. Bailey. In his experience, Mr Bailey would walk down the
stairs with the inmate workers and unlock the first of two doors to the steam
room. The workers would go in, turn the valves on or off while Bailey waited.
Once they came back out, he would lock the door. Mr. Bailey would sometimes
accompany them into the steam room itself, but not always.
When a valve had to be turned off, no ladder was brought down generally because
there were other methods of gaining access to valves not accessible from the
floor. Mr. Watson said there was a five-pound spackle bucket that could be
turned over, a little wooden, square blue stool, and an old wooden ladder. For
the sole purpose of reaching a valve in the steam room, in his experience none
of the ladders kept in the 21-A plumbing shop were ever brought down. As you
entered the steam room, the old wooden ladder was kept on the left-hand side,
against the wall, almost in the same location as the blue stool, underneath the
large valve depicted in Exhibit A-1. A spackle bucket would have come off the
tool cart. “We’d take a couple [of] tools out of it . . . just turn
[it] over and stand up on it.” [T-367].
Mr. Watson’s recollection of the wooden ladder kept in the steam room was
that it was “roughly” eight feet tall, “a light beigish
brown” and “very old.” [T-367]. It was “rotten and
broke[n] in places.” The ladder would wobble when opened to the A-frame
position, because it was missing perhaps three inches of the “right-hand
outer leg on the bottom.” [T-367-368]. The top part of the ladder - where
one might rest a can of paint for a job - was broken off: “There was only
half left up there, and I believe it was the second step that was broke[n]. It
was just . . . a metal rod there.” [T-368]. The metal rod went from rail
to rail, however, with a nut on each side. Mr. Watson asserted that there was
black magic marker writing on the ladder indicating ‘21-A plumbing
shop.’ [T-369]. No other witnesses said that it was marked in this
fashion. Before the day of the accident, Mr. Watson said that the ladder was
used on an average once per week by all of the workers including himself, Mr.
Santabrea, Mr. Jossiah, as well as Mr. Bailey.
Indeed, Mr. Watson specifically recalled two (2) occasions where Mr. Bailey had
utilized the old wooden ladder, although he said that they all used it
“quite a bit.” [T-370]. On one occasion, one of the electrical bulbs
had blown out and, given the wet floor in the steam room, Mr. Bailey got up on
the ladder with needle nose pliers to pull out the damaged bulb and replace it.
On another occasion, Mr. Bailey used it to reset the steam tank. As shown in
Exhibit A-1, the steam tank is a large blue tank that has a different colored
blue box at the top. Mr. Watson explained that most of the water for the mess
hall is generated from that source. The pressure valve would need frequent
adjustments because “[t]he mess hall uses a lot of hot water . . . The
water don’t get hot, and what we had to do on a regular basis is go in
that little box, open it up and reset it.” [T-371].
At approximately 3:00 p.m. on November 6, 2002 Al Santabrea, Winston Bailey and
Claimant were in the plumbing shop when the maintenance supervisor, Kenneth
Malkemus, went into Bailey’s office and had a conversation with Bailey.
Thereafter, all four men went to the 21-A steam room. The supervisor and Bailey
were standing in front of the blue tank, Claimant said, when the supervisor took
the old wooden ladder that had been leaning against the wall and the pipes,
“opened the thing up and we set it because . . . a guy call[ed] that he
wasn’t getting hot water in the mess hall.” [T-375]. The supervisor
went up the ladder. When he came back down, steam traps that needed replacing
were also pointed out, and the group was advised that they needed to do that
job. According to Mr. Watson, Mr. Bailey informed Claimant and Mr. Santabrea
that on the following day they were to come down to work at 7:30 a.m. rather
than 8:00 a.m. and to go to the steam room to replace the traps that had been
pointed out. They were then escorted back to their unit for the housing
On November 7, 2002 Claimant and Mr. Santabrea - who resided in the same
housing unit - reported to the plumbing shop at approximately 7:30 a.m. Mr.
Bailey instructed them to put certain tools on the tool cart, and they
“grabbed” an orange ladder - he could not say of what length - and
went down to the steam room and started to replace the lower steam traps. The
lower traps, he explained, are approximately three to four feet above ground
level. [T-382]. The upper traps were not reachable from ground level for Mr.
Watson - who said he was 6 ft 2 inches tall - even with an outstretched hand.
He estimated that they were anywhere between 9 and 11 feet above the ground.
Mr. Watson explained that in order to place a ladder between the wall and
whatever pipes were in the way, it would first be flattened and brought under
the obstructing pipe and then opened in the space between. There were
approximately three to four feet between the wall and the pipe: the space where
the orange ladder in this instance was set up to hang up lights initially, and
then later used by various workers to obtain leverage and or hold the pipes
depending on which action was being practiced at the time to loosen the joint.
After Mr. Bailey set up the lights, Claimant and Mr. Santabrea were told to
take certain tools out and to assemble the traps. This involved taking off a
joint piece on the end, repositioning and securing a filtering screen, taping
it, and then putting bolts and screws back on. After the traps were assembled,
Mr. Bailey instructed Claimant to “grab the [old wooden] ladder that was
on the left-hand side of the steam room . . . [and] instructed . . . [Claimant]
to put it on the right-hand side of the two steam traps, opposite side of his
ladder.” [T-390-391]. Mr. Bailey did not tell Claimant not to use this
old wooden ladder which, as a matter of practice in the steam room, was used
regularly in any event.
Claimant described the manner in which the traps were disconnected for
replacement. Claimant said that Mr. Bailey went up a few steps on his orange
ladder, placing the head of his wrench on the steam trap, with its handle below;
while the other person would go up on the old wooden ladder on the other side
with another wrench with its handle pointing upward toward the ceiling.
So-called “cheater bars” were added on, namely pipes or other stray
materials of varying girth and length, to extend the length of the wrench
handles for better leverage and greater torque. Because of the cheater bar on
Mr. Watson’s wrench, the handle of his wrench was higher than the steam
trap pipe. The force Claimant would apply would be down. Mr. Bailey did not
apply force, but rather “was just there to hold it.” [T-395].
Claimant could not reach his wrench by standing on the floor. On the other
hand, Mr. Bailey was able to reach his wrench while standing on the ground, but
stood on the orange ladder nonetheless for better leverage.
The old wooden ladder was set up leaning against a large white steam pipe
depicted in Exhibit 5, Mr. Watson said, in an effort to stabilize it given the
shortened leg. Since the last time Mr. Watson personally had used the wooden
ladder, perhaps two weeks before the accident, the “second or third
step” of the ladder was “completely gone.” [T-397]. As Mr.
Bailey and Claimant worked on the upper traps, Mr. Watson thought he worked from
the sixth or seventh step on the old wooden ladder in order to apply more
pressure on the cheater bar. He said: “[W]hat I did is I grabbed - - I
went all the way up, I leaned my body like an arch, and I wanted to put my upper
arms on the - - on the bar. I was like this, the cheater bar to put pressure
down on it. You know, using my body weight.” [T-399]. They could not break
the rusted seal on the pipe.
They got off the ladders, and Mr. Bailey instructed the crew to spray the pipe
with the lubricant WD-40. After the pipe was sprayed, Mr. Bailey “ told
[Claimant] and Victor Jossiah to wait until the solution worked into the pipe,
about ten minutes, and then proceed to try and take it apart.” [T-401].
Mr. Bailey then left the steam room with one or two other inmates. When Mr.
Bailey left the steam room, according to Mr. Watson, he told them he “was
going back to the 21-A plumbing shop to get some other tools we needed and to
the mess hall to pick up feed-up trays so we can eat
dinner.” [T-401]. After waiting ten minutes, Jossiah went up the orange
ladder Bailey had been using, and Claimant went up the old wooden ladder and
proceeded in the same fashion used earlier. Watson estimated that, again, he
was on the sixth or seventh step of the ladder. When the seal would not break,
Claimant went up another step to throw more body weight on it when “the
whole pipe cracked because the step I was standing on, I had my feet on the
center of the step. The back of the step broke in half and I fell down.”
[T-402]. He fell onto the tool box which was directly in front of the door, he
said. His legs and lower back came in contact with the tool cart, and the
wooden ladder itself was on top of his lower body. He was partially on the
tool cart and partially on the floor. When he fell, Jossiah jumped off his
ladder, came down and took the wooden ladder off Claimant. Claimant could not
pull himself up, so Jossiah “put his arms under both of [claimant’s]
arms and tried to pick [him] up like this and the pain in [his] back, it
actually made [him] cry, so [Jossiah] left [him] there . . . [and] ran out to
the hallway to the barbershop” to get help. [T-404].
During a protracted cross-examination, Mr. Watson appeared somewhat uncertain
of the relative heights of the ceiling where the pipes and traps were - or
indeed what the dimensions of the pipes were; what step on the old wooden ladder
he was on, and whether Mr. Bailey had instructed him to push or pull as they
attempted to loosen the pipes together to replace the traps. He had first
indicated that it was his understanding that Mr. Bailey was in the position to
hold the pipe in place while Claimant exerted the force to loosen it. Later,
Mr. Watson seemed to agree with Counsel for the Defendant that it had been Mr.
Bailey’s instruction that Claimant pull rather than push, thus when Mr.
Bailey departed with the order to Mr. Watson to continue to try to release the
pipe the “same way”, when Mr. Watson instead “pushed down on
the pipes instead of pulling” [T-536], he was “deviating”
from the orders given.
Mr. Watson first admitted he did not recall whether when he and Mr. Bailey were
working together Mr. Watson was pushing or pulling. After the WD-40 was applied
he testified that he was pushing down but then reconsidered his testimony to say
- quite credibly - that at times he was pulling and at others pushing, after
Counsel confronted him with deposition testimony in which he indicated that he
was “pulling on the wrench trying to release the trap” when he fell.
[T-537]. For all the pyrotechnics of cross-examination, Mr. Watson nonetheless
credibly stated that at times he was pulling and at others pushing; and that at
the time of his fall he was pushing. When Mr. Jossiah replaced Mr. Bailey on the
orange ladder after the latter left the inmates alone, Mr. Watson
“believe[d] [Jossiah’s] head, the top of his head was above the
pipes ” [T-541]. He explained that Jossiah is shorter than Bailey.
Moreover, although the cheater bar on Jossiah’s side was lower, and could
technically be reached by someone standing on the ground, in order to apply
leverage one would need to climb a ladder, or some implement to get higher, in
any case. Thus, the ladders were both useful in the places they were in. Mr.
Watson said that he interpreted Mr. Bailey’s instructions as he left them
in the steam room as a direct order to continue doing the work in the same way
that they had been doing, once the WD-40 lubricant did its job. Mr. Watson did
not view it as Bailey’s leaving it up to them how to accomplish the task,
as suggested by Counsel for the Defendant. Mr. Watson reiterated that Mr.
Bailey was the supervisor.
Claimant identified as his own the handwriting and signature on a Report of
Inmate Injury form dated November 7, 2002 reporting the accident.
Winston Bailey, a plumber employed by the State of New York for fourteen years
at the time of the accident, and a man with almost 40 years plumbing experience,
was Claimant’s civilian supervisor on November 7, 2002.
Mr. Bailey testified that when he left the boiler room to get food, the wooden
ladder was not set up, and that the Claimant and Mr. Jossiah were specifically
told not to do any work in the steam room and not to use the ladder in his
When giving his direct testimony on Claimant’s direct case, Mr. Bailey
indicated that he was unfamiliar with the industrial code rules concerning
safety standards for ladders, but indicated that he had received instruction on
the safe use of ladders as part of his overall training as a plumber, and
through training by OSHA, his union, and the New York State Department of
Correctional Services [DOCS]. He acknowledged that he was trained that the
proper procedure when a ladder is damaged is not to use the ladder and to
destroy it. When a ladder provided by DOCS is damaged, it is either destroyed,
or it is brought back to the supervisor with a Broken Tool Report, and is then
either repaired or destroyed. He agreed that an A-frame ladder should be in
perfect condition in order to be used in accordance with his own personal
As an employee of DOCS, he was supplied with an assigned inventory of tools,
that might list a certain number of screwdrivers, and wrenches of various sizes,
all listed with “length, make and color.” [T- 42]. That inventory
list would include whatever ladders are assigned to the 21-A plumbing shop, out
of which Mr. Bailey performed his job functions. Three ladders - one eight-foot
ladder and two ten-foot ladders - were assigned to the plumbing shop, and
specifically to Mr. Bailey’s identification number. Indeed, his
identification number is placed on all the equipment that is part of his
One of the tools not given to him for his use, but a tool he knew was available
in the steam room when the work relating to this particular work order -
replacing the steam traps - was being done, was the old wooden ladder. He
estimated that “maybe one” or “maybe two” times per week
he would go down to the steam room to turn a valve on or off. He insisted,
however, that only he would perform this function, because “whenever an
inmate is assigned to work with me, the inmate must not be left out of my sight
for too long”, that no ladder was generally needed to turn water on or
off, and that, if one were required, he would always use one of the ladders that
had been assigned. [T-47].
Mr. Bailey later acknowledged that inmates might be sent down on occasion to
turn off a valve.
Mr. Bailey explained that the facility policy was that unattended ladders
should be chained up for security reasons. The ladder that was left in the
steam room was not chained up, nor was it one of Mr. Bailey’s assigned
ladders. He said that the ladder was propped up against the wall in the steam
room. Mr. Bailey claimed to have reported the unchained wooden ladder to his
supervisor at some point before the day of the accident. He could not recall
for how long the ladder had been present in the boiler room, nor could he say
what supervisor he reported it to. Although it had been there for a “long
time,” it was not there when Mr. Bailey first began working at Fishkill in
1999. He could not say whether it had been there for months or weeks, nor
could he say with any specificity how long prior to the accident he reported the
ladder to his supervisor, except to say “it could have been a month or so
before.” [T-83]. He described the ladder as a wooden one, “with
broken rungs and broken leg.” He could not say whether it was a six - or
eight-foot stepladder. He was able to describe its infirmities fairly
specifically, however, and said that if it were opened, one would be unable to
climb up the ladder safely because it had only three legs, and broken rungs. He
confirmed that he had indeed opened up the ladder and seen that it “was no
good.” Neither he, nor an inmate at his direction, ever got up onto the
ladder, he maintained. [T-91].
In later testimony, Mr. Bailey stated that he only reported that the ladder was
unchained, apparently, not that it was dangerous, at some unspecified point
prior to the accident. He could not say why he did not tell the supervisor it
was dangerous. He thought that he himself probably did not destroy it because
he thought the owner might come back for it. He said after the accident, when
he saw Mr. Watson lying on the ground, he “took the responsibility”
and destroyed the ladder. [T-101-102].
Mr. Bailey confirmed that the temperature in the steam room is very hot and
humid. He also confirmed that his general workday ran from 7:00 a.m. to 3:30
p.m. Although it might have been his preference to leave on time, when the job
required it, however, he would work later and be paid overtime. When it was
winter, for example, and given the fact that no second shift would be coming on
to finish any unfinished work, he might stay on to make sure that the heat went
back on in the building.
On the day of the accident, arrangements to turn off the steam to the boiler
had been made in advance. Because the steam to the boiler created hot water
throughout the building, the inmates would not be getting hot meals that
evening, but rather sandwiches. Mr. Bailey said the steam was turned off early
in the morning - probably two to three hours before his own 7:30 a.m. shift
began - because the pipes were cool when the work began. The work assignment, as
he recalled, was to replace four steam traps in the boiler room.
Mr. Bailey explained that the steam trap is what allows the steam to come
through and prevent condensation from interfering with the flow. Mr. Bailey
was shown photographs of the steam room depicting the two sets of traps that
were being worked on at different elevations. [See
Exhibits 2-6]. Mr.
Bailey - after some struggle with his memory and his understanding of the
questions - testified that the steam traps were approximately 8 feet off of the
He said you would need to go up two or
three rungs of a ladder to reach the traps.
Mr. Bailey could not really say what the specific job assignments were of the
inmates he was supervising on the day of the accident. Indeed, apart from
Victor Jossiah and Mr. Watson, he could not say who was working that day, except
he thought there were one or two more inmates from his regular crew working. As
he recalled, Mr. Watson was looking for material and handing materials up as
they all worked; other times Mr. Watson would “get on the threading
machine and he would thread a piece of pipe”, primarily non-strenuous
types of activity because Mr. Bailey was mindful of having been
“told” by Claimant that he had a bad back. [T-162]. No other
witness mentioned Claimant having any problems with a bad back.
The steam traps themselves came assembled, Mr. Bailey said. In order to replace
these traps, two wrenches would be utilized: “one to hold and one to
pull.” [T-163]. Depending on the “severity of the rust”, a
lubricating oil such as WD-40 is sprayed on - it takes approximately 10 minutes
to penetrate - then large wrenches with 18 to 24 inch handles were utilized.
In addition to wrenches, “cheater bars” might be added to give the
wrench extra leverage and greater torque given the longer handle. Mr. Bailey
could not recall the length of the cheater bars used on the day of the accident,
and said that he basically would use whatever pipes were lying about as cheater
bars, of perhaps 36, 37 or 38 inches in length, i.e., “short enough to
handle.” [T-167]. In an area crowded with pipes and other obstructions
it might be difficult to maneuver a cheater bar. Notably, one worker would need
to work above the pipes to maneuver the large opposing wrenches using the ladder
to get high enough - even on the lower set of traps - while the other worker
could operate from the ground level. The worker could work at the ground level
because the wrench would be at a 45-degree angle or horizontal: Mr. Bailey
testified to both positions. Mr Bailey could not remember where the ladder they
were using to do this separation operation was placed before he left Mr. Watson
and Mr. Jossiah in the steam room.
Although at his deposition he said that he had been working about four to five
hours prior to the accident, on the day of trial he could not say how many hours
he had worked. When he left the steam room, it was only to obtain dinner for the
crew, he said, since they would be working through dinner. He could not recall
if he also left to obtain additional tools. He said that when he left, he
advised the correctional officer assigned to the barbershop - that was around
the corner from the boiler room - that he was leaving two inmates in the steam
room and taking the other two with him. He thought it was a male correction
officer he spoke to. No other witness testified that he advised them of
Mr. Bailey was asked what the reason was for leaving Mr. Jossiah and Mr. Watson
in the steam room. He responded: “There’s no particular reason for
leaving Watson and . . . Jossiah in the boiler room. There was not a
preference. It was just that I needed two people to help me bring back what I
was bringing back.” [T-181]. He maintained that he did not leave them
with any instructions to do work that he recalled.
During his deposition, in contrast, Mr. Bailey said that Mr. Watson had
declared that he did not want to walk to the messhall. Indeed, during his
deposition, Mr. Bailey said in response to the question of why he left two
inmates in the boiler room, that “the reason is that, number one, Mr.
Watson chose to stay. He didn’t want to walk. He didn’t feel like
he wanted to walk. Mr. Jossiah, I left him, both of them. I just took one
person with me.” [T-183].
On the day of trial Mr. Bailey did not recall Mr. Watson having indicated to
him that he did not want to walk to the messhall. Mr. Bailey then said he did
not remember whether he took one or two inmates with him.
During his deposition, he testified that he had specifically told the inmates
to leave the pipes alone in his absence. At trial he could not recall whether
he had said that; nor could he recall whether he had also told them not to use
the unsafe wooden ladder.
With reference to whether he had spoken to them about the ladder at all, Mr.
Bailey said at trial: “Not at that specific time. I don’t recall
telling them direct, but I told them that that ladder is not to be used. I
don’t remember saying it specifically to them not to do the work until I
get back and not to use the ladder . . . but I distinctly told them prior to
that not to use the ladder. So, if I did tell them on my way out, it’s
just a reminder . . . ” [T-191-192].
Mr. Bailey testified that he was absent from the steam room for no more than
five minutes. He confirmed that while work was being done on the traps, there
was no hot water in building 21-A, which housed inmate cells and a mess hall.
When Mr. Bailey returned to the boiler room, he “saw two officers in the
boiler room . . .[,] saw Mr. Watson lying on his back on the floor, and . . .
Mr. Jossiah assisting with Mr. Watson on the floor, and [he] was told that he
fell off the ladder.” [T-198]. At trial Mr. Bailey testified that he
could not recall what position the wooden ladder was in when he returned,
explaining that he “was focused on the man on the floor.” [T-210].
During his deposition, Mr. Bailey had testified that the wooden ladder was
“[l]ying on the floor” on the side. [T-211].
At trial, Mr. Bailey could not recall whether one of the legs on the ladder was
missing entirely when he picked it up. During his deposition, Mr. Bailey had
testified that one of the legs to the ladder was missing or that one of the
rungs was missing. At trial, Mr. Bailey remembered personally breaking the
ladder up with a Saws All or a hammer sometime after he returned to the steam
room after the accident but could not recall what he did with the ladder after
cutting it up, though he “might have taken it upstairs”, or he might
have left it there. He could not remember putting it in a dumpster. Prior to
destroying the ladder, Mr. Bailey testified that he declared that it should have
been cut up previously because it was dangerous. He acknowledged that he knew
that if someone were to use that ladder, he could fall and be hurt, and that at
the time of the accident he was thinking only of the injury that had been
caused, and was not worrying about whom the ladder might belong to. At his
deposition, he testified that he took the ladder upstairs, cut it up, and
“when we were getting ready to leave . . . dumped it into the
Acknowledging that the procedure when an inmate is injured is to make out a
written report of such injury, Mr. Bailey said that after the accident, rather
than making a written report, he gave a “verbal report” of the
inmate injury to his supervisors, Dave Wisocki and Kenny Malkemus. [T-220-221].
At trial, Mr. Bailey could not recall whether he had told his supervisors at the
time that the ladder was broken before the accident occurred, though he did
recall saying that the ladder was no good, and that he had chopped up the ladder
after the accident. At his deposition, he had testified that he had advised the
one supervisor, Dave Wisocki, of the accident, and that he had told the
supervisor the ladder was broken before the accident. Mr. Bailey could not
recall telling the supervisor that the inmates had been told not to use the
Since Mr. Bailey was called by Claimant’s counsel, he was cross-examined
by the Defendant’s attorney. Mr. Bailey maintained that the only
unsupervised activity inmates performed generally was turning valves on and off.
He denied providing the broken wooden ladder to Mr. Watson. He also pointed out
that other trades used the steam room, and that “recently” - within
one to three months
- hot water heaters had
been installed by outside contractors. The outside contractors would have been
using ladders “because they had to reach way up.” [T-270]. Mr.
Bailey then claimed not to have seen the broken wooden ladder until after the
outside contractors were there.
On further direct examination, Mr. Bailey maintained he would never let the
inmate workers use tools other than the tools that were part of his inventory.
He confirmed that the men were instructed to stand only on firm, inventoried
ladders - three of them - not spackle buckets or an old broken down ladder.
Shown a photograph of the steam room submitted by the Defendant [A-1], showing
what is clearly a blue step stool or small table, Mr. Bailey would not
characterize what the blue object was. He repeatedly said: “I don’t
know what it is sir.” [T-287]. When asked, he said he would not tell any
of his workers to stand on the object, “if it were there.”
In testimony taken during a continued trial session on October 26, 2006, Mr.
Bailey at some point acknowledged that the blue stool shown in exhibits
submitted by the Defendant - that he had denied ever having seen - was indeed
his own “work bench” [T-656]. Between trial sessions he had also
taken some loose measurements of the height of the steam traps. The lower one
he placed at 80 inches [6 feet 8 inches]; the higher one he measured as 104
inches [8 feet 8 inches] off the floor. [T-606-607]. He did not use a tape line
or other measuring tool, but cinder blocks. [T-631]. He also acknowledged that
inmates used “milk crates” [T-655] and the lower “pipes”
themselves to stand on, on occasion. [T-651-654].
Although he knew he had the ability to write a ticket in order to discipline an
inmate worker who did not follow his directions, Mr. Bailey had never used such
proceedings during his tenure. He himself had been suspended, he acknowledged,
due to possessing unauthorized tools at the facility.
Correction Officer Lynne Gaylord testified briefly. On November 7, 2002 she
was stationed at the barbershop at Fishkill, starting at 4:15 p.m. or so on that
day. The boiler room of Building 21-A and the barbershop are located on the same
level, approximately 100 feet away from each other, but one cannot see into the
boiler room from the barbershop. She was outside the barbershop entrance sitting
at the desk in the hallway in front of the door to the barbershop when an inmate
came out of the boiler room saying that they needed help. When she arrived at
the boiler room she saw Mr. Watson lying on the floor of the boiler room. She
recalled that he was not too far inside the door, “maybe one foot,
two[feet]” and he seemed to be “raising himself, trying to hold
himself up by his arms.” [T-293-294]. He was to the right of the doorway.
Mr. Watson said he fell off the ladder. An officer with a radio [Officer Lupo]
was right behind Officer Gaylord, and she instructed him to call the Sergeant
and get help. Officer Lupo had been inside the barbershop at the time. The two
officers waited for the sergeant to come. When Sergeant Jaycox arrived
approximately 10 minutes later, he ordered a wheelchair for Mr. Watson. The
inmates in the boiler room retrieved the wheelchair, which was in a unit on the
second floor above the barbershop. The wheelchair arrived approximately 5 or 10
minutes later. Mr. Watson was placed in the chair and carried up the stairs to
the walkway to medical. She recalled that Mr. Bailey had returned about 20
minutes after she reached the scene. He was there around the time the wheelchair
came in any event, and definitely when Mr. Watson was placed in the wheelchair,
she said. She recalled seeing a wooden ladder that was “old and really
not stable” when she saw Mr. Watson on the ground. [T-298]. She said
that she might have “even touched it”. She saw no other ladders in
Officer Gaylord testified that Mr. Bailey never told her that he was leaving
inmates alone in the steam room and, unless he radioed Officer Lupo, he did not
tell him either, because he would have had to go through her to get to Lupo.
Officer Gaylord had never seen the wooden ladder prior to the date of the
accident. She confirmed that Mr. Bailey, as a civilian plumber working for the
State and supervising inmates, could give an inmate a ticket for refusing to
obey an order or instruction. If an inmate did not follow a job instruction,
Mr. Bailey could write a misbehavior ticket and the inmate could be subject to
discipline. She thought it was odd to leave inmates alone, although she said
she was “not really familiar with civilians with inmates, but usually
they’re with [one another] when [they are] working . . .
The deposition testimony of Victor Jossiah confirmed only portions of Mr.
Watson’s version of events, to the effect that two ladders were in use,
that it was common to use the old wooden ladder, and the mixed methodology
(pushing and pulling or holding) whereby Mr. Bailey and Mr. Watson, and then he
and Mr. Watson, attempted to uncouple the pipes. [See Exhibit 7]. His
recollection of the reason why they were in the steam room that day was slightly
different, in that he recalled that they were trying to change a leaking steam
pipe, and that they had been performing other tasks elsewhere prior to going to
the steam room. He recalled that the pipes were approximately 6 or 7 feet off
the ground. He described himself as 5 ft 5 inches tall, and stated that he was
working from the third or fourth step of a metal ladder, while Mr. Watson stood
on the second or third step, he presumed, of the old wooden ladder, because he
was a little higher up than Watson. His recollection was that the metal
ladder was about 5 or 6 feet tall: “a little higher than me”.
[Exhibit 7, p. 87]. No mention was made of the shortness of one of the three
legs of the old wooden ladder, nor the lack of any specific rung of the ladder:
aspects of the ladder that had been noted by both Claimant and Mr. Bailey, but
neither was Mr. Jossiah asked. He did say, “yes”, however, when
asked whether both ladders were set up “standing by themselves”
“on all four of their legs.” [Exhibit 7, p. 129]. He also agreed
with the questions propounded to the effect that a six-foot ladder would have
six steps plus a platform on top.
Mr. Jossiah recalled that when Mr. Bailey left them in the steam room the
instruction was to “get the job done.” He also thought that perhaps
Mr. Bailey was going to get WD-40 lubricant - although all Mr. Bailey said was
that he was “going to go get some reinforcement” [Exhibit 7, p. 127]
and food - and made no mention of the scenario described by Mr. Watson wherein
WD-40 was sprayed on, the workers were told to wait for it to work, and then try
Kenneth Malkemus, a maintenance supervisor at Fishkill to whom Mr. Bailey
reported at the time of the accident, also testified. Although he did not
specifically recall going to the plumbing shop on November 6, 2002, and telling
Mr. Bailey about the job changing steam traps, and then taking Mr. Bailey and
several inmates to the steam room to point out the locations of the traps, he
said it would be a “normal” thing for him to do. [T-677]. Mr.
Malkemus claimed never to have seen the old wooden ladder, despite having worked
for over 15 years at Fishkill, and despite having been in the steam room
countless times. Its presence was also never reported to him by Bailey, but he
explained that he is not the only maintenance supervisor to whom Mr. Bailey
could have made mention of the ladder. He said he had never climbed the old
wooden ladder as Mr. Watson testified. He denied hearing any verbal report of
the accident from Mr. Bailey.
Mr. Malkemus went to the steam room with Mr. Bailey a short time prior to
giving his trial testimony, and measured the height of the steam traps. He said
the lower traps were approximately 7 feet from the ground, and the higher traps
were “between eight and eight and a half feet.” [T-681]. He
recalled using a tape measure at the time.
Mr. Malkemus stated that in the years 2003 and 2004 Mr. Bailey had been
suspended from work for “having things in his truck that he
shouldn’t have.” [T-699]. Specifically, he had a machete that he
used to cut brush down. Mr. Malkemus confirmed that leaving inmates alone for
between 30 and 60 minutes would not be a good idea, although for a “short
period of time” - such as “five minutes” - it would be
understandable. [T-702]. He said he did not learn of the accident from Mr.
Bailey, but rather heard about it within 6 months to a year of the date of trial
from his own supervisor. Indeed, he “believed” he had never spoken
to Mr. Bailey about the accident until 6 months before the date of trial.
Pursuant to Counsels’ request, the Court made an onsite inspection of the
steam room on February 23, 2006.
The State has a duty to exercise reasonable care in providing inmates
incarcerated in its prisons who are participating in work programs with safe
equipment, adequate training and supervision and a reasonably safe place to
work. Callahan v State of New York
, 19 AD 2d 437 (3d Dept 1963),
14 NY2d 665 (1964); Letterese v
State of New York
, 33 AD3d 593 (2d Dept
2006); Martinez v State of New York
225 AD2d 877 (3d Dept 1996); Kandrach v
State of New York
, 188 AD2d 910 (3d Dept
1992); Palmisano v State of New York
47 AD2d 692 (3d Dept 1975);
While it is not an
insurer of inmate safety, and negligence should not be inferred merely from the
happening of an accident, the State must still exercise reasonable care in the
circumstances, from the standpoint of its unique position and control in a
Labor Law provisions governing worker safety do not completely define the duty
of the State to its inmate workers, but do help in assessing what may be the
reasonable standard of care. Maldonado v State of New York
, 255 AD2d 630,
631 (3d Dept 1998);1 D’Argenio v
Village of Homer
, 202 AD2d 883, 884 (3d Dept
1994);1 Fitzgerald v State of New
, 28 Misc 2d 283 (Ct Cl 1961);1
Labor Law § 240 (1). To the same effect are the
provisions of Industrial Code Rule 23, a portion of which sets forth the
requirements for ladders, again in the context of worker safety as opposed to
inmate workers. See generally
12 NYCRR §23-1.21; Vizzini v State
of New York
, UID #2004-013-522, Claim No. 104290 (Patti, J., December 22,
Additionally, based on whatever life and work experience he brings to the task,
an inmate who is performing a job is responsible for his own failure to use
reasonable care. Manganaro v State of New York
, 24 AD3d 1003,1004 (3d
Dept 2005);1 Martinez v State of New
; Carter v State of New York
, 194 AD2d 967 (3d
Dept 1993);1 Hicks v State of New
, 124 AD2d 949 (3d Dept 1986);1
Palmisano v State of New York
. Sometimes, such failure to exercise
reasonable care may constitute the sole proximate cause of an accident and the
resulting injuries; [see Letterese v State of New York
] or indeed may constitute a superseding cause. See
Martinez v State of New York
. At other times a finding of
comparative fault is warranted. See e.g. Kandrach v State of New
at 914-915; Carter v State of New York
; Hicks v State of New York
Moran v State of New York
, UID # 2005-009-148, Claim No. 106923
(Midey, J., December 21, 2005)1
The Court’s observations of the steam room during an on-site visit
consented to by Counsel confirm that it is space not likely to be used as a
place to simply rest between tasks. The photographs submitted are somewhat
deceiving in some regards, in that the depth perception varies from the actual
location, and the fact that the wall and the pipes containing the steam traps
are almost directly on a corner is not shown clearly. Most importantly,
however, while the configuration might be tight, the factual scenario presented
by Mr. Watson, whereby two ladders were used, is a possible one. Moreover, it is
likely that rather than strain to reach up and apply any pressure to cheater
bars from a ground level location - on either side of the traps - ladders, or
some other mechanism, would be used to gain a height advantage. Climbing all
the way up into the arched position described by Claimant would seem needlessly
awkward in an already awkward work location, but frankly what step of the ladder
Claimant was actually on is fairly meaningless under the bevy of variations
presented by the various witnesses. Indeed, after carefully considering the
testimony of all the witnesses, and after observing their demeanor as they did
so, the Court cannot help but conclude that each found it necessary to embellish
(or minimize as the case may be) the tale to be told, and the Court can but
credit some of the testimony of each witness based upon its unique opportunity
to observe the witnesses as stated, and to compare the testimony given to the
physical reality of the task taken on in November, 2002.
Overall, when comparing the testimony of the two most significant witnesses,
Mr. Bailey was simply less credible than Mr. Watson.
What seems credible is that Mr. Bailey was a fairly unexacting supervisor, who
worked with his men to “get the job done” by whatever means. He did
not write up his crew for minor insubordination - though none was recalled in
any event - nor did they live in fear of his directions. While certainly, as an
18 year veteran of DOCS, Mr. Watson knew that orders were to be followed or
else disciplinary action could be taken, the Court does not believe that Mr.
Watson feared Mr. Bailey’s reprisals, though he might wish to stay on his
good side in order to retain the plumbing crew assignment he had sought out, and
would forge ahead with a task assigned for that reason.
Everybody - except Mr. Malkemus, apparently, if his myopic view is credited -
knew the old wooden ladder was in the steam room, as was other junky equipment
such as a blue stool or bench and the occasional milk crate. The ladder was
used as a convenience when some extra height was needed, and when not enough
safer equipment had been lugged down to the work area to perform a task.
On November 7, 2002 Mr. Bailey and his crew had been working in hot, close
quarters for an extended period of time, and had accomplished only part of the
task at the time when the dinner meal was in the offing. The convenience of hot
water had not been afforded to the building since the early hours of the morning
of November 7, 2002, and the job needed to be finished. The Court does not
credit Mr. Bailey’s assertions that the inmate workers were told to just
sit and await his return, but rather concludes that it is far more believable,
as stated by Mr. Watson, that they were told to wait only for the lubricant to
do its work, and then to try again as they had been doing prior to
Bailey’s departure. Mr. Bailey had clearly condoned the use of the old
wooden ladder during the time he was still in the steam room that day. This is
consistent with his admissions that other items on other occasions - such as a
milk crate, or the pipes that were closer to the ground - would be used to gain
a height advantage for an appointed task. The mechanics of working in and around
the pipes, using what force was necessary to disengage rusted materials, clearly
called for adjusting one’s height on either side of the traps. Convenience
alone would dictate that the old wooden ladder would be used rather than making
yet another trip to the plumbing shop to obtain a safer implement that might not
as easily be jimmied into place the way one could jimmy an old, malleable
ladder. Whether the wrench was horizontal or at a 45-degree angle, to
effectively grasp it some height would be needed. Two men, working either side
and taking turns makes far more sense than one exclusively at ground level.
Mr. Bailey notably was suspended for a considerable period of time for bending
rules as he himself admitted, and as was confirmed by Mr. Malkemus. Leaving
inmates alone as he did that day on November 7, 2002, seems another lapse of
judgment, which he tried to cover up by claiming he had advised correction
personnel that he was leaving. On this record, no officers were aware that
inmates had been left alone in the steam room. Officer Gaylord placed Mr.
Bailey’s return approximately 20 minutes after she was called for
assistance, making his absence nearer the 30 minute mark than the 5 minutes he
The inconsistencies between Mr. Jossiah’s recall of the events and the
Claimant’s were relatively minor and not of such a level that collusion
would be suspected. Indeed, if there had been some sort of effort to tailor
their stories, it is far more likely they would have done a better job of it.
In contrast, Mr. Bailey’s inconsistencies were legion, and served only to
reinforce the Court’s impression - based on observing him as he testified
- that he was making things up as he went along in an effort to cover up his own
Condoning the use of an unsafe piece of equipment was negligence. A
correctional facility is a peculiarly controlled work setting, where all items
present are required to be inventoried or otherwise accounted for, and where
work crews must accept whatever tools are provided in a manner far more
constrained than in private industry. Disobeying a direction means the risk of
discipline. Thus, with some regularity, it would appear, unsafe tools find
their way into use, based upon some of the troubling case law surrounding the
use of wood chippers and saws, for example. Nonetheless, Claimant, too, must
exercise some care for his own safety, and was thus negligent as well as he
continued to use the old wooden ladder, knowing that the ladder was unstable,
and to then exert just that much more force as he used it that he was caused to
fall and suffer injury.
Accordingly, the Court finds that while the State was indeed negligent in
failing to provide a safe workplace and adequate tools, resulting in the
foreseeable injury to Claimant, the Claimant, too, was equally negligent.
Based on the foregoing, the Court finds that the State of New York is 50%
responsible for the injuries suffered by Claimant in this accident, and that
the Claimant is 50% responsible for his injuries.
The Clerk of the Court is directed to enter interlocutory judgment on the issue
of liability in accordance with this decision. Trial on the issue of damages
will be scheduled as soon as practicable.
Let judgment be entered accordingly.