New York State Court of Claims

New York State Court of Claims

WATSON v. THE STATE OF NEW YORK, #2007-030-007, Claim No. 107677


State found 50% liable in failing to provide a safe workplace and adequate tools, resulting in the foreseeable serious injury to Claimant in the course of his work assignment while incarcerated at Fishkill Correctional Facility. Claimant was replacing steam pipes and traps at the direction of a supervising plumber employed by the State of New York. Use of unsafe piece of equipment - an old wooden ladder - was condoned and was negligent. 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. Claimant credible

Case Information

1 1.References throughout this decision are to Claimant, Dennis Watson only, since the claim of Veronica Watson is derivative.
Claimant short name:
Footnote (claimant name) :
References throughout this decision are to Claimant, Dennis Watson only, since the claim of Veronica Watson is derivative.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
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Third-party defendant’s attorney:

Signature date:
March 2, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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].[2] This public service involved painting churches, mowing cemeteries, constructing “parks for kids.” [T-346]. He had also worked as a nurse’s aide and in administration.

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 disciplinary proceedings.

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 count.

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 absence.

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 practice.

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 assigned inventory.

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 floor.[3] 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 anything.

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 dumpster.” [T-217].

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 ladder.

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[4] - 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 the area.

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 . . . hand-in-hand.” [T-306].

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 again.

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. [T-738].

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), affd 14 NY2d 665 (1964);[5] Letterese v State of New York, 33 AD3d 593 (2d Dept 2006);[6] Martinez v State of New York, 225 AD2d 877 (3d Dept 1996);[7] Kandrach v State of New York, 188 AD2d 910 (3d Dept 1992);[8] Palmisano v State of New York, 47 AD2d 692 (3d Dept 1975);[9] 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 prison setting.

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[0] D’Argenio v Village of Homer, 202 AD2d 883, 884 (3d Dept 1994);1[1] Fitzgerald v State of New York, 28 Misc 2d 283 (Ct Cl 1961);1[2] see generally 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, 2004).1[3]

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[4] Martinez v State of New York, supra; Carter v State of New York, 194 AD2d 967 (3d Dept 1993);1[5] Hicks v State of New York, 124 AD2d 949 (3d Dept 1986);1[6] Palmisano v State of New York, supra at 6931[7]. 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, supra] or indeed may constitute a superseding cause. See Martinez v State of New York, supra. At other times a finding of comparative fault is warranted. See e.g. Kandrach v State of New York, supra at 914-915; Carter v State of New York, supra; Hicks v State of New York, supra at 950; Moran v State of New York, UID # 2005-009-148, Claim No. 106923 (Midey, J., December 21, 2005)1[8].

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 claimed.

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 lax behavior.

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.

March 2, 2007
White Plains, New York

Judge of the Court of Claims

[2].Quotations are to the trial transcript [T- ] unless otherwise indicated. Here, [T-345].
[3].He had also testified that they were higher and lower than the 8-foot figure he settled on at various points in his testimony. Although Mr. Bailey estimated the height of the ceiling in the steam room during his deposition taken on May 21, 2004, on the day of trial he would not do so except to say it was “very high.” [T- 148]. Mr. Bailey said he is 5 feet 11 inches tall. He agreed that during his deposition he estimated that were he to stand on a five gallon spackle pail - that he said then was about 2 feet high - he would need to reach up another 2 feet above his head approximately to work on the steam traps. [T-157].
[4]. or six months, elsewhere in testimony.
[5]. State 100% liable, where inmate claimant injured his right hand while using a corrugating machine to process garbage cans. Machine lacked safety device that would have prevented injury, and there was credible evidence that a bolt had become loose on other occasions, resulting in the failure of such safety device operating properly. Only one-half hour instruction on use of machine.
[6]. State not culpable. Inmate claimant’s act of ascending to the very top cap of an unsecured 10-foot high step ladder was the sole proximate cause of her injuries when she was performing an assigned painting task as part of a work crew. Claimant failed to establish that the State did not properly supervise or train her or provide her with a safe workplace. Climbing to that position was not condoned by supervising officer.
[7]. State not culpable. Inmate claimant performing electrical work on a temporary generator injured by electric shock while isolating electrical wires supervisor had told him were not presently live. Supervisor denied making such representation, and also said he told claimant to avoid the “hot” power side, and gave claimant opportunity to not complete task. Claimant had allegedly told State employees that he was not knowledgeable or competent to do the repair demanded. The record established, however, that claimant had represented himself as experienced in the electrical field, and had indeed belonged to an electrical union for five years prior to his incarceration, and had received substantial training. Failure to provide reasonably safe equipment, adequate warnings and instructions is not supported by record. In light of his experience and training, his own actions were reckless and a superseding cause. Even after being injured, he completed the task with the tools provided within 5 minutes.
[8]. State found 50% liable where inmate claimant assigned to work operating wood chipper at sawmill never given specific instruction as to its use, except for 5 minute demonstration of how to insert wood into chipper, instruction that it was dangerous, and that if any clog occurred, instructing correction officer to be called. Chipper was missing a locking bar safety device. As claimant operated machine, saw strips of wood coming out rather than chips, not only from the normal chute, but from the gap created by the absence of the locking bar. When he climbed on top of body of chipper his hands came in contact with blades, causing partial amputation of three fingers. Inmate’s disregard of instructions only contributing factor. “Nothing in these instructions [to turn off machine] expressly linked the malfunctioning of the machine to any potential safety risk to an operator. Moreover, [the correction officer’s] own testimony of several occasions when the same instructions were ignored by inmates over a period of seven or eight months made it foreseeable that claimant might not have obeyed them in the form they were given.” Kandrach v State of New York, supra at 915.
[9]. Labor Law §200 provided standard of care, where infant-claimant using joiner planer injured in woodworking shop, severing part of one of his fingers. State failed to properly instruct on use of tool, failed to properly enforce safety rule, and failed to properly supervise.
1[0]. Claimant did not use protective eyewear provided while hammering nail that ricocheted, causing him injury. Although not bound by Labor Law provisions, same suggest that State owes duty to provide reasonably safe machinery and equipment and how reasonable standard of care determined. Here, safety measures were reasonable and adequate. No liability.
[1]1. “It has long been held that inmates who perform work at the direction of State officers are not employees subject to the protection of the Labor Law . . . (citations omitted).”
1[2]. In common-law action for negligence Labor Law provides standard of care applicable. Nonetheless, inmate claimants could not recover for an unexplained explosion in correctional facility oven.
1[3]. State 100% liable for inmate claimant’s injuries suffered when he fell from a defective mobile scaffold he was using to replace fluorescent light bulbs in a facility laundry room.
1[4]. State not liable. No duty to provide warnings to inmate claimant, who had 20 years experience in the construction industry, “owned his own construction company, was familiar with many power tools, had seen other people operate angle grinders and was familiar with how angle grinders work ” concerning dangers of use of angle grinder. Grinder in good working condition.
1[5]. State 60% liable. Claimant injured when he came in contact with a saw blade while attempting to clean accumulated sawdust out of an edging machine at sawmill. Claimant aware of the dangers of crawling under an operating machine and the preferred methodology of cleaning out the machine during two shutdown periods.
1[6]. State 50% liable. Claimant injured while operating table saw which he had operated previously and for which he had received instructions which he may have ignored. Saw lacked a safety guard, and had been placed on a potentially unstable base.
1[7]. “It is obvious that there is an increased duty upon the State where the inmate of a correctional institution is young or inexperienced in the type of work in which he is engaged, particularly where such work involves use of dangerous equipment by a student . . . (citation omitted).”
1[8]. State 75% responsible for inmate-claimant’s injuries, caused by fall from ladder while he was completing a painting project. State failed to provide adequate equipment and supervision. He had never been assigned to a project to paint utility support poles before, received no instruction as to the placement of ladder, nor any orders forbidding use of the ladder without a spotter. Ladder part of a disassembled extension ladder.