JOHNSON v. THE STATE OF NEW YORK, #2007-030-009, Claim No. 108374
State of New York 70% responsible for the injuries suffered by claimant in this
accident, where inmate claimant alleged defendant’s agents at Fishkill
Correctional Facility negligently caused him injury by directing him to perform
his inmate work assignment under dangerous conditions. More specifically,
Fishkill personnel directed him to cut the grass on a wet, slippery hillside:
conditions that caused him to slip, fall and suffer injury. While the Court
finds that the State failed in its duty to assure that this inmate was afforded
a safe place to work, by failing to assess the condition of the wet grass by any
measurable means, the Court also finds that claimant could have done more to
assure that he did not try to perform a task under dangerous conditions by
speaking up about the condition of his boots
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
KALMAN, KAUFMAN & ROSENBLATT, PCBY: HAROLD J. ROSENBLATT, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
April 9, 2007
See also (multicaptioned
Wallace Johnson alleges in his claim that defendant’s agents at Fishkill
Correctional Facility (hereinafter Fishkill) negligently caused him injury by
directing him to perform his inmate work assignment under dangerous conditions.
More specifically, Fishkill personnel directed him to cut the grass on a wet,
slippery hillside: conditions that caused him to slip, fall and suffer
Mr. Johnson testified that on July 25, 2003 he reported for his work assignment
on the inmate compound crew at Fishkill after breakfast. As a member of the
compound crew, he took care of the facility grounds, including mowing the lawns.
As he recalled it, he had been on the crew for a little over one (1) year at the
time of his accident. In terms of training, he did “not receive any
.” With respect to
mowing lawns, he recalled signing a “paper” attesting that he knew
how to turn a lawn mower on and off; and how to remove the blade. More
specifically, the crew was told not to get too close to one another when they
were mowing, especially when moving diagonally in formation on hills. Before
July 25, 2003, he had used the “push” style lawn mower frequently.
No specific instruction concerning mowing in wet weather, or mowing on hilly
areas was given - except that the crew would “move from side to side;
sometimes starting from the top, sometimes from the bottom . . . diagonally down
the hill.” It had been the same routine, he said, for at least ten (10)
months prior to the accident.
After breakfast that morning, “when the walkway opened at 8:00
a.m.”, he walked to where the crew usually met up with Correction Officer
Guarino, the officer assigned, at an office area near claimant’s housing
unit. The office area contained the necessary equipment, such as mowers and weed
whackers. The crew was told by Guarino that they would be mowing grass in the
S-Block area; parts of which were very hilly. While still at the office area,
Mr. Johnson recalled suggesting to Guarino that they might put off mowing at
S-Block to another day, as it was likely to be wet. Although it was not raining
that morning, it had rained the day before, and on other occasions throughout
the preceding week. Nonetheless, he testified, the correction officer gave him
a direct order to mow the grass on the hill.
Claimant testified as to his general understanding that any failure to obey an
order given by a correction officer would subject him to discipline. He said he
had “never been subject to any disciplinary action throughout [his]
incarceration.” Additionally, he had a “pretty good”
relationship with Officer Guarino, although Guarino was not necessarily always
the officer assigned. He repeated that it was his understanding that he had no
option but to do what he was told. Indeed, it was his further understanding that
at Fishkill he would be sent immediately “to the box” upon
disobeying an order; receiving his ticket while there, rather than being given
the ticket first, and then returned to his own housing unit, as was the
procedure “at other facilities.”
As the crew walked with their tools on the roadway toward the assigned site,
Mr. Johnson noticed that the roadway was just drying up, but that there were
still a lot of puddles. Indeed, according to the watch commander’s log
notes, in which weather conditions at a particular time are noted, notations
indicate it had rained on July 18, 2003, during “Duty Tour III”,
rained on July 22, 2003 during “Duty Tour I”; rained on July 23,
2003, during “Duty Tour II”; and rained on July 24, 2003, during
“Duty Tour II.” [See Exhibit 11].
On July 25, 2003, during “Duty Tour I”, the weather was noted as
Sometime prior to 9:00 a.m., the crew arrived at the S-Block area. Mr. Johnson
and the rest of the crew turned on the mowers and started cutting. He started
at the top, because he was the “most experienced”, in an area he
described as “very steep.” He indicated that despite his complaints
as to the slipperiness of the hillside, he was told again that the area had to
be done that day. He mowed from side to side, coming down diagonally as he
descended. When he finished the first area, he recalled shutting the machine
off, and then walking over to where others had gathered to proceed - as officer
Guarino had instructed - to the other side. As he walked to a lower part of the
hill, he slipped and fell as he descended. His State-issued boots “had no
grip” he said - “the bottom of the boots were completely flat - so
that if you slipped on water you would just go like you were skiing.”
Describing his fall, Mr. Johnson said his left foot slipped under him, and he
ended up supporting his body weight by his left and right ankles. He was
“approximately 8 feet up” from the roadway area when he came to
rest, as marked in a photograph he was shown depicting the scene. [See
Exhibit 1]. This black and white photograph identified as showing the area of
claimant’s accident, and a small portion of the area to be mowed, shows an
inclined grassy area, bordered at the bottom by pavement or dirt, and at the top
by a barbed wire fence and a large building known as “Building 21.”
[Id.]. An inmate injury report confirms the fact of an ankle injury, and
contains Mr. Johnson’s own contemporaneous description of his accident.
[See Exhibit 3].
On cross-examination, Mr. Johnson confirmed that the mower was not
self-propelled, and would shut off when the handle was released. He estimated
that it was “probably about 30 inches wide.” He agreed that mowing
season started sometime in June, and ended in late September, and that they
would mow “five (5) days per week,” thus he had used the mower very
frequently. Although they would generally never start a mowing assignment in the
rain he agreed that it might start raining once they had started mowing, and
they might not necessarily stop immediately.
He stated that the walk from the gathering area to the area to be mowed took
approximately 15 minutes and covered a distance of less than one-quarter mile.
They walked on roadways - as opposed to grassy areas - all the way to the other
side of the facility. Mr. Johnson repeated that there were puddles on the road,
but agreed that the road was either partially dry or drying given that the heavy
rain he remembered had stopped sometime the night before.
When cross-examined at length, Mr. Johnson conceded he was “not
certain” whether he had mowed the day before. He firmly recalled,
however, that “it was a gloomy day” the morning of July 25, 2003.
Shown a day entry made by Officer Guarino for July 25, 2003 where it is noted
that at 7:30 a.m. the weather was “bright, sunny, warm, . . .
[approximately] 78°F” [see Exhibit 5] , Mr. Johnson disagreed
with the notation, recalling instead that when he reported for work at 8:00 a.m.
or so, it was warm but “gloomy.”
Although a crew of approximately fifteen (15 ) inmates reported for duty that
day, he said that perhaps eight (8) inmates in that group would be given the
mowing assignment and using the mowers to cut the lawn at S-Block.
Pressed to give measurements, Mr. Johnson estimated that the hill he was
directed to mow, was approximately fifteen (15) feet up from the pavement area,
although it could be less or more. He also estimated that the depth of the
grassy strip between the pavement and the fence was approximately 200 feet as
shown in the same photograph. [See Exhibit 1]. As paraphrased by counsel
for the defendant, and hesitantly agreed to by claimant, this meant a change in
fifteen (15) feet of elevation over a distance of 200 feet. Asked if he would
characterize the area depicted as a steep slope, Mr. Johnson said that
“no, [he] did not think it was particularly steep.” He repeated
that he fell after the first side of the mowing job was completed by the
group, not during the actual mowing in any event. As he worked, he said
he had stopped to get his balance because it was slippery, but did not
“formally” stop his mower.
In terms of the height of the grass, he thought the grass was high enough in
some points to cover his boots. He recalled that not all the area was mown that
day. Where he slipped was part of an unmown grass area. The entire area to be
mown - and again he was pressed to estimate - was approximately 175 feet wide by
200 feet deep, running from the bottom area up to Building 21. He thought it
took approximately 40 - 45 minutes for the 8 mowers to do this task. This was
the first mowing job for the day. He conceded that no other inmates slipped and
fell that day, but said that “just about everybody was protesting”
to the officer that it was slippery from the time they had gathered at the shop.
“The officer said, however, that his boss had said it had to be done so
that we had to do it.”
Eric Sowell, another inmate on the compound crew mowing the grass, saw Mr.
Johnson’s accident. He confirmed that after breakfast they went to the
work site, although the weather was “nasty outside.” The ground was
wet from all the rain all week, a factor he noticed on the walk to the site.
Mr. Sowell complained to Officer Guarino about the wet conditions, but
“per Sergeant Rain, it had to be cut.” Mr. Sowell was “right
behind” Mr. Johnson when he had his accident. Shown the photograph marked
Exhibit 1, he also identified it as depicting the area of claimant’s
accident. He said that he had experienced trouble that day mowing the grass
because it was slippery and wet.
On cross-examination, he recalled the grass as high enough to cover the top of
his feet. After cutting, it was “maybe 2 to 3 inches.” He did not
recall whether Mr. Johnson fell on a cut or an uncut area, but recalled that
claimant’s mower was on, just as his was, as they mowed in formation to
one side. He did not remember how many were on the crew; “perhaps 9 or
10.” He estimated the depth of the grassy area as 30 or 40 yards from the
path up to the fence, and described the slope as “going up 4 or 5 feet or
6 feet.” Mr. Sowell agreed that during the “two (2) years or
so” he had been on the compound crew, he had mowed the area “several
times,” and said Mr. Johnson had been a member of the crew when Mr.
Sowell joined it. He too recalled that it was cloudy but not raining on the day
of the accident, although it had rained the night before. Indeed, he recalled
that it had rained the whole week, and that they “ . . . really
didn’t do too much” that week.
Shown the watch commander notes for July 24, 2003 containing a log entry for
the 2:30 p.m. to 10:30 p.m. shift, the witness agreed that the notation made
indicates that the weather was “warm.” [see Exhibit 11].
The first July 25, 2003 notation indicates “partly cloudy.”
[Ibid.]. The witness did not agree with the entries made by Officer
Guarino in his logbook to the effect that it was “sunny” the morning
of July 25, 2003, but agreed with the officer’s notation that it was warm.
[See Exhibit 5]. He maintained that it was his recollection that it had
rained off and on all week.
Portions of the examination before trial of Correction Officer Vincent Guarino,
a 23-year employee of the New York State Department of Correctional Services
(hereinafter DOCS), taken on March 10, 2005, were read into the record. During
his deposition, Officer Guarino indicated that the task of cutting the grass
was cyclical, and he received instruction on where to start from Sergeant Rain,
his superior. In terms of methodology, Sergeant Rain did not say how the
inmates should cut it, rather common sense dictated.
Officer Guarino recalled that Mr. Johnson had been on the compound crew for
between 6 and 8 months at the time of the accident. Claimant had always
followed Guarino’s instructions during that time, appeared to know what he
was doing when he cut the grass, and the officer had never had a problem with
him. He recalled that the men generally wore State-issued boots on their feet
when performing tasks on the compound crew. The boots had a design on the
bottom to make them non-slip but Officer Guarino did not remember particularly
what Mr. Johnson’s boots looked like.
Asked generally about wet grass, Officer Guarino indicated that if the grass
were wet on occasion it would still be cut. In the S-Block area, he said, if
they knew the grass was wet they would not cut it, because it would be slippery.
He also indicated that he would check to see if the ground was wet by looking at
it. He did not recall kneeling down and feeling the grass, or otherwise testing
it. Acknowledging that there were areas that might be damper than others, he
said that on the hill “depending on the location of the sun it would
either get the same amount of sun or less, so I imagine it would be wetter,
it’s certainly possible.” [Deposition of Vincent Guarino, Page 29,
Officer Guarino said that claimant fell “almost to the bottom” of
the incline, and at first placed the location of the fall as approximately 20
feet up the incline. [Ibid. Page 30, lines 17-20]. He explained that
the incline begins at the flat road and that the accident occurred about
“20 feet up the hill.” [Ibid. Pages 30-31; lines 24-25; 2-4].
He later corrected himself and said that “. . . [i]f the whole slant is
about 40 feet, . . . I’m going to say ten instead of 20 feet up the hill
because it was down towards the bottom of the hill. [Ibid. Page 31,
Officer Guarino recalled that claimant was pushing a mower horizontally on the
hill just before he fell. Claimant was approximately 30 feet away from the
witness. Officer Guarino observed claimant roll down the hill once or twice.
When Guarino went to check on him, claimant indicated that he could not get up
because his leg was broken. Mr. Johnson told the officer that he had slipped.
Officer Guarino did not check the soles of claimant’s boots or his clothes
and did not know if the clothes were wet. He said: “I can tell you that
visually or visibly the grass was not wet. To look at it, it certainly was not
wet. I consider myself to be a decent guy and I don’t want anybody to get
hurt and it’s my job to make sure the area was safe, if it was wet visibly
I would stop the work.” [Ibid. Page 39, lines 3-17]. He said that
it was “possible” that it was wet but not visibly so. [Ibid.
Page 39, lines 18-24]. If an inmate had come to him with a complaint, he said,
because he is “not a crazy person”, he implied he would have stopped
the work. [Id.]. When asked if there were times that someone would direct
him to cut in a particular area, he agreed that might be “possible.”
[Ibid, Page 40, lines 16-19].
In a memorandum from Officer Guarino to his supervisor, Sergeant Rain, dated
July 25, 2003, Officer Guarino reported claimant’s accident and injury.
[Exhibit 6]. The officer wrote:
“. . . at approximately 9:45 AM . . . inmate Johnson . . . was pushing a
lawn mower on the side of a hill. While doing so, he slipped and rolled down
the hill approximately 10 ft. I was located only 20 ft. away and immediately
inspected inmate Johnson, who was complaining of a broken ankle. After doing
so, I contacted medical staff via radio. They . . . quickly responded to the
area . . . [with a] wheelchair. Inmate Johnson was evaluated and transported to
RMU immediately.” [Id.].
Officer Guarino confirmed that upon arrival at S-block the work immediately
commenced, saying, “ . . . they walk through the gate and get
started.” [Deposition, Page 49, lines 3-6]. He did not have any
recollection of any conversation from that point until the time of the accident.
Portions of the examination before trial of Sergeant Rain, a 32-year DOCS
employee, taken on March 10, 2005, were read into evidence as well. He explained
his role vis-
the compound crew as “. . . I assign the officer to the compound crew, if
the bid officer is not there and if it’s not the bid officer I’ll go
in and I’ll talk to the officer and explain to him exactly what I’m
expecting him to do.” [Deposition of Kenneth Rain, Page 9, lines 6-12]. He
confirmed that Guarino was the bid officer that day, and that he had given
Guarino instruction as to what grass had to be cut. Sergeant Rain said that he
inspects the area after the crew have finished. He confirmed that a compound
crew is entirely comprised of inmates, and that his own role would be giving
instruction to the correction officer in charge, who would in turn instruct the
After the incident, Sergeant Rain recalled that he spoke with Officer Guarino,
to discuss what happened. He learned from the conversation that the crew had
been cutting the grass, and he was told by Guarino that “the inmate
slipped and came down upon his foot - - actually he told me they were finished
cutting and all the grass was cut and . . . [that the inmate] was sitting
down.” [Ibid. Page 19, lines 6 -12]. Indeed, he did not recall that
Officer Guarino actually witnessed the accident, but rather remembered Officer
Guarino telling him that he saw the inmate was sitting down, just as they were
about to cut grass in another area. When Guarino approached claimant to urge
him to get up, Sergeant Rain recalled that Guarino had told him that the inmate
reported that he could not go because his ankle was broken. [Ibid. Page
19, lines 13-23].
Sergeant Rain confirmed that it is a requirement in the facility that inmates
obey the guards. As long as an order is “reasonable”, the inmate is
supposed to “comply.” [Ibid. Page 23, lines 9-15]. Moreover,
members of the compound gang would be removed from the crew if they did not
Sergeant Rain also confirmed that it is a “steep incline” going out
of S-Block [ibid. Page 33 line 24-25]; but that hilly areas had to be
maintained. He said “push gasoline mowers” are used. When asked if
there were “any type of rules with respect to cutting the grass if it
rains or if the grass is wet?” Sergeant Rain responded:
“What I a lot of times do if the grass is wet say early in the morning
we don’t go out on it right [away], we try to get out on it when
it’s more dryer but if it’s still a little damp, yes, we can cut the
flat lands but if it’s a really hilly area or something like that, you
stay off until it’s dry.” [Ibid. Page 41, lines 16-25].
One reason Sergeant Rain gave for why one would wait for the grass to be dry
before cutting it is that “. . . if it’s a hilly area, I
wouldn’t put somebody on a hilly area if it was wet due to possibly they
might fall.” [Ibid. Page 42, lines 6-10]. Sergeant Rain said that a
fall from wet grass was “. . . not all that could happen. I’ve
been cutting grass for 25 years and I haven’t had anybody slip other than
this gentleman and he’s a good worker they tell me, very good worker. He
cut that area at least 30 times.” [Ibid. Page 42, lines 13-17].
Sergeant Rain repeated that there are no specific tests to determine whether
grass is too wet to cut, but rather common sense controls.
No other witnesses testified and no other evidence was submitted on
claimant’s direct case.
Defendant called Correction Officer Vincent Guarino and Sergeant Kenneth Rain,
who gave similar testimony at trial to that given during their depositions, with
some differences and some amplification.
Officer Guarino identified the logbook for the compound crew, as a book in
which he recorded daily entries when he was assigned as the duty officer, as
would any other officer assigned the job. [Exhibit 5]. As of July 25, 2003 he
stated he had supervised that group for two years. The kinds of information
recorded, he said, included the day of the week and the date, the tour of duty,
who was on duty, the number of inmates, the maintenance tasks to be performed,
and the weather. His entry for July 25, 2003 confirmed that 15 inmates worked
with him that day, just as claimant had testified. The task to be performed by
the “AM crew” was “cutting and cleaning-up the roadway at
S-Block.” He could not recall specifically how many inmates were working
on the mowers.
As a general rule in inclement weather, he said, they might do shop cleanup or
equipment maintenance. Generally, no work was done outside when it was raining.
He knew of no written guidelines as to when mowing should be done after it
rained. If the grass was wet, they would not cut it. Whether it was wet was
determined, generally, by whether his “feet got wet” as he
“walked through it.” He could not remember specifically what he did
that morning to determine whether the grass was wet, but it was all
“fairly routine.” They usually began between 8:30 a.m. and 8:45
a.m., so that any dew on the grass would likely be dry by then. If the lawn was
dry they would cut, if it was wet they would not. He repeated that he did not
remember specifically testing the grass that day, nor did he specifically
remember when they started that day.
Officer Guarino did not recall any conversation with Mr. Johnson wherein Mr.
Johnson said that it would be dangerous to cut the grass that day because it was
wet; nor did he remember such a conversation with anybody on that day.
Officer Guarino said he usually placed himself somewhere in the middle of the
group when they were performing a task, so that he could observe everyone. He
said that he “stayed moving”, going over to someone who was not
performing or having difficulty for example. In contrast to his deposition
testimony, he remembered walking in the grassy areas that day. The reason, he
said, that he remembered being in the grass that day is that he remembered where
he was standing when he saw claimant roll down the hill. He could not, however,
remember anything about the condition of the grass regardless.
At trial, Officer Guarino also said he did not see claimant’s actual slip
and fall and only saw the inmate “roll a couple of times.” His last
observations of claimant before the “rolling” were of him cutting
the grass. Officer Guarino could not remember whether the machine was on when
claimant rolled, but indicated that the machines shut off automatically in any
event when the handle is released. Officer Guarino remembered the weather as
“nice - it was sunny.” He did not specifically recall the condition
of the roadway, nor did he remember water pooling on the roadway. He did not
recall any inmates slipping or falling prior to claimant’s accident.
He testified that the incident occurred at “about 10:00 a.m.” He
estimated that to cut the one side of the area it would take
“approximately 10 minutes.”
On cross-examination Officer Guarino confirmed that entries for his log report
were not generally made all at once. [Exhibit 5]. The top three lines of the
entry, he explained, were made “first thing.” Notably, entries on
the top three lines include the day and time and the weather, and the number of
inmates and the task to be performed by the “AM Crew.” Officer
Guarino indicated that the weather notation means that a certain type of weather
was present at a given time: He “could not speak for the rest of the
day.” Thus, in the entry for July 24, 2003, wherein it indicates that at
7:30 a.m. on Thursday, the weather was “overcast & raining;
humid” that entry means that those were the conditions at 7:30 a.m. This
colloquy during the trial was by way of explaining why there was outside
activity indicated for the morning shift on July 24, 2003 specifically, trimming
with weed whackers and sweeping same, when the witness had said they did not
work outside when it rained. The witness agreed that using a weed whacker did
involve cutting grass, but said “it was a different piece of
equipment.” In the afternoon of July 24th, it appears grass was cut
commencing “after 1:00 PM” the officer explained, because the
“PM crew” would be coming in.
On re-direct examination by the assistant attorney general, Officer Guarino
said that the weather entry is consistently made at 7:30 a.m. When prodded, he
explained that if there were a “substantial change” he might make an
additional entry. He further explained that the afternoon mowing on the 24th
used lawn mowers; suggesting that the grass was not wet. He assumed that by
1:30 p.m. it must have been dry enough to mow. He knew of no records
maintained at the facility that would record the weather throughout the day.
On re-cross-examination it was conceded that his testimony concerning the
afternoon mowing on the 24th is based upon his own rule that if it was wet, they
would not mow; saying again it was “common sense”; not any
“written rule.” He then corrected himself, saying that if it was
slightly wet, they would mow only flat areas, “just for this reason: that
someone could get hurt.”
Sergeant Rain also testified. As the “outside perimeter sergeant”
at Fishkill in 2003, he said he was ultimately responsible for all the grounds,
including the inmate crew. He supervised Officer Guarino who was his compound
officer. There was no particular rule at Fishkill as to when and where grass
would be cut. The officer in charge - here, Officer Guarino - would determine
when and where to cut. Sergeant Rain described the terrain around S-Block as
hilly in some areas and flat in others. Although he might notice that one area
needed more attention than another, and he might mention it to the duty
officer, it was the officer who determined when to give it the attention.
There was no rule, per se, regarding how soon after a rainfall the grass
would be cut on a hilly area.
Sergeant Rain testified that he learned of the accident “a day or so
later:” a fact not made clear in the deposition testimony that was read.
He himself did not observe any of the conditions in the subject area on the day
of the accident. Shown the watch commander’s notes, Sergeant Rain
described them as entries made as they occurred by the three (3) watch
commanders assigned to each tour. Tour I covered the shift from one day at
10:00 p.m. to 6:00 a.m. the following day; Tour II refers to the next shift from
6:00 a.m. to 2:00 p.m.; and Tour III refers to the shift from 2:00 p.m. to 10:00
p.m. that night. Looking at the entry for July 23rd, Sergeant Rain explained
that the weather entry is put in first thing in the morning - here the beginning
of the 6:00 a.m. shift - and is noted again during the day if there are changes.
On cross-examination, Sergeant Rain agreed that as part of his “duty to
investigate,” he interviewed Officer Guarino concerning the incident.
Although asked by Sergeant Rain, Officer Guarino did not tell him how the inmate
came to fall, the Sergeant said at trial. No other officers or inmates were
interviewed as to whether they saw anything. He could not say that all the
information came from Guarino - explaining that he looked at the logs when told
he needed to do an investigation by his superiors - but agreed that what he did
write in his investigatory memorandum was essentially “hearsay” as
he called it. In the memorandum sent to his superior, Lieutenant Kay, he said
he indicated that Johnson had slipped on the wet grass on a hill. His
recollection was that Guarino had told him only that he had seen Johnson sitting
on the ground, not that he had seen him fall. When asked at trial why he would
write down that the inmate slipped on wet grass on a hill, Sergeant Rain
repeated that it was “hearsay”. He determined that he had read it
in the watch commander’s log. [See Exhibit 11 page 194]. He agreed
that the officer in charge - Guarino - would be “responsible if the grass
In an unusual incident report written by Lieutenant Kay, who was the watch
commander, it was also noted that Mr. Johnson “slipped on wet
grass”, Sergeant Rain said. Sergeant Rain again conceded he did not speak
to Johnson, did not himself speak to other inmates, nor did he know if
statements were taken from any inmates.
DISCUSSION AND CONCLUSION
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 affd
14 NY2d 665
; Letterese v State of New York
33 AD3d 593 (2d Dept 2006)
; Martinez v
State of New York
, 225 AD2d 877 (3d Dept
; Kandrach v State of New York
188 AD2d 910 (3d Dept 1992)
; Palmisano v
State of New York
, 47 AD2d 692 (3d Dept
. 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 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
; D’Argenio v Village of
, 202 AD2d 883, 884 (3d Dept 1994)1
Labor Law § 200. Labor Law §200, for example,
codifies the common-law duty of an owner or contractor to exercise reasonable
care in providing workers a safe place to work. Comes v New York State Elec.
& Gas Corp.
, 82 NY2d 876, 877 (1993). “Where the alleged defect
or dangerous condition arises from the contractor’s methods and the owner
exercises no supervisory control over the operation, no liability attaches to
the owner under the common law or under Labor Law §200 . . .
).” Comes v New York State Elec. &
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
; Martinez v State of New
; Carter v State of New York
, 194 AD2d 967 (3d
; 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
, Mood v State of New York
, UID #2003-029-326, Claim No.
96183 (Mignano, J., November 12, 2003)], or indeed create 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 York
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
In a recent Court of Claims case - which at first seems similar but is
significant for where it is factually distinct - no liability was found when an
inmate grounds worker was injured while mowing. Mood v State of New York,
supra. Credibility was clearly a decisive factor in that claim too. The
inmate had asserted on his direct case that the supervising officer that morning
had at first indicated that they would not be mowing the grass because it was
wet from rain the previous day, and would be working elsewhere. Shortly
thereafter, the claimant said, the supervising officer told the grounds crew to
mow the grass. Despite Mr. Mood’s protests that the wet grass would be
dangerous to mow, the officer gave him a direct order to mow which he then
proceeded to do. He claimed that he mowed across the hillside as inmates had
been trained to do, and that he mowed in an area that they had been mowing
previously. He claimed he was injured when he turned around, he slipped, and
his foot went under the mower. No other witnesses testified on his direct case.
Correction Officer Turner, Mr. Mood’s supervisor, testified that the main
task for the day was cleaning slop resulting from a broken water line, and the
inmates were sent to perform that task. There was a forty-five minute gap in
time before the end of the morning shift, so the claimant and two others were
told to go get lawn mowers and mow. The officer said nobody protested, or
expressed any opinion about the condition of the grass. They were also told to
mow in a specific area: not the area where claimant had his accident. Other
evidence - including a photograph - established that the claimant was mowing on
a different portion of the hillside than he had been instructed to mow, unlike
the other two inmates; that he was mowing in an up and down direction rather
than side to side as he had been trained to do as shown by the grass cuttings
and mower wheel imprints; that boggy areas in the grass had been marked off with
stakes by the supervising officer; that the inmates were trained to let go of
the handle of a mower if they fell while mowing; that when the officer saw
claimant at the clinic after the incident, the claimant admitted he did not let
go of the mower because he feared his supervisor’s wrath over any damage
to a relatively new mower; and that claimant admitted that he was pulling the
mower up the hill when he slipped and fell, pulling the mower over his foot.
Officer Turner also said that it was not his practice to issue direct orders to
his work crew, and denied having issued a direct order to claimant to cut the
grass. Further rebuttal of Mr. Mood’s version of events was supplied by
testimony from the facility’s fire and safety officer, who immediately
investigated the incident, spoke to all the participants, and examined the
hillside as well. He confirmed that the mower’s wheel marks ran
vertically up and down the hill, rather than horizontally. The Court of Claims
found that Mr. Mood’s own actions were the sole proximate cause of his
accident, and dismissed the claim.
Here, however, a different result should obtain. A finding of negligence
requires establishing the following (1) that defendant owed the claimant a duty
of care; (2) that defendant failed to exercise proper care in the performance of
that duty; (3) that the breach of the duty was a proximate cause of
plaintiff’s injury; and (4) that such injury was foreseeable under the
circumstances by a person of ordinary prudence.
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
although each found it necessary to add “helpful” details to what
would otherwise be a fairly simple tale, Claimant’s testimony nonetheless
appeared the most credible based upon the Court’s opportunity to observe
all the witnesses, and to compare the testimony to determine that the defendant
is at least partially responsible for injuries suffered by claimant on July 25,
2003 as he worked as part of the inmate compound crew, under the supervision of
Overall, when comparing the testimony of the two most significant witnesses,
Officer Guarino was simply less credible than Mr. Johnson.
There is ample evidence in the record, albeit in the form of log entries made
with that special rigidity inherent in institutional recordkeeping, together
with the testimony of claimant, and Mr. Sowell, that there had been rain on and
off for at least one (1) week, with humid, hot periods in between. Clearly,
under such conditions, there might be areas in the compound less exposed to the
sun, or less able to absorb water quickly, and thus wetter than others. The log
entries are essentially reliable only as of the exact time they were written, as
confirmed by Sergeant Rain, and remarked on by Officer Guarino. Notably, both
said that if there was a substantial change in weather during the eight (8) hour
shift, such change would be noted in the log; however this is one of those
details the court does not credit. A simple review of both the day report and
the watch commander’s log shows that other than notations of accidents or
the movements of inmates and employees, no adjustments to the initial entries
appear to ever having been made. [See Exhibits 5 and 11].
As the supervisor of the inmate crew it was Officer Guarino’s duty to
ascertain whether conditions were safe for the task of mowing in the S-Block
area. That this was his responsibility was also expressed in the testimony of
Sergeant Rain, as well as the somewhat calculated testimony of Officer Guarino.
It is difficult to credit that a “visual inspection” would reap the
necessary information concerning the grass. Indeed, Officer Guarino had little
to no recall of any specific action or effort made on his part to discern
whether conditions were safe for mowing on a hilly area on that day. Even if, as
he averred, it was “sunny”1
they set off, the intermittent rainy conditions throughout the week, the heat
and humidity, and the hilly location warranted more than the visual inspection
he marginally recalls. His own testimony provided that if the grass were wet,
the rule of thumb was they would not mow. Yet, he made absolutely no effort to
ascertain whether conditions were safe.
Both claimant and Mr. Sowell recalled complaining directly to Officer Guarino
that the conditions appeared to be unsafe. Officer Guarino indicated he did not
remember any complaints, which appears consistent with his general lack of
recall about the events of the day, and does not mean that complaints were not
made. In the prison setting, unlike workers in other locations, and despite the
recitation by both Guarino and Rain that only “reasonable” orders
need be followed, inmates follow directions given by correction officers. Even
orders given by officers who are “decent guys” as Officer Guarino
described himself. Having registered the protest, and having been rebuffed, the
court credits Mr. Johnson’s indication that he then did what he was told
to do despite his concerns.
While Officer Guarino may not have been a harsh supervisor - no testimony was
elicited regarding his propensity for issuing tickets, or for giving the
facility rule igniter: the direct order - Mr. Johnson knew that orders were to
be followed or else disciplinary action could be taken. Even if disciplinary
action was not likely, what is true, as Sergeant Rain indicated, is that an
inmate who did not do what his supervisors told him to do while working at a
job, would be taken off the job. Thus, Mr. Johnson would wish to stay on Officer
Guarino’s good side in order to retain the assignment.
Mr. Johnson, however, was also in the best position to know whether the
State-issued boots he was wearing were in good enough condition to be utilized
on the job, and to have done something to alert personnel previously as to their
condition. He used the boots daily by his own account, and must be held
accountable in some measure for not making sure that the equipment he brought to
the task - what he was wearing - was safe to use.
Accordingly, while the Court finds that the State failed in its duty to assure
that this inmate was afforded a safe place to work, by failing to assess the
condition of the wet grass by any measurable means, including the easy task of
walking the area first before directing that it be
and feeling the ground in any event
given the week’s weather, with the foreseeable result that Claimant
slipped and fell to his injury, the Court also finds that claimant could have
done more to assure that he did not try to perform a task under dangerous
conditions by speaking up about the condition of his boots.
Based on the foregoing, the Court finds that the State of New York is 70%
responsible for the injuries suffered by Claimant in this accident, and that
the Claimant is 30% 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. All trial motions not otherwise
disposed of are herewith denied. Trial on the issue of damages will be scheduled
as soon as practicable.
April 9, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. All quotations are to trial notes or audio
recordings unless otherwise indicated.
. Later testimony established that Tour I
refers to the shift from 10:00 p.m. on one day, to 6:00 a.m. the following day;
Tour II refers to the shift from 6:00 a.m. to 2:00 p.m; and Tour III refers to
the shift from 2:00 p.m. to 10:00 p.m.
. 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.
. State not culpable. Inmate claimant’s
act of ascending to the very top cap of an unsecured10-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
. 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.
. State found 50% liable where inmate claimant
assigned to work operating wood chipper at sawmill never given specific
instruction as to its use, gave 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
at 914, 915.
. 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.
. 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
. “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. 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.
.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.
. State 50% liable. Claimant injured while
operating table saw, which he had operated previously and for which he had
received instruction which he may have ignored. Saw lacked a safety guard, and
had been placed on a potentially unstable base.
. “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 . . .
. 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
. His testimony overall was to the effect
that he did not recall his actions of that day. Thus, his testimony concerning
what is written in his daybook is not based on any present memory of conditions
as was that of claimant and Mr. Sowell. He read into the record at trial that
this was his notation at the exact time it was noted, and even conceded he could
not “speak for the rest of the day.”
. See Hinman v State of New
, UID# 2005-018-463, Claim No. 103461 (Fitzpatrick, J., April 1, 2005).
In that case, where a claimant was using a riding mower to cut a State-owned
strip along a highway, and was injured when he fell in culvert while avoiding a
car, the Court noted that one item of Defendant’s proof was a guide to
mower safety, in which the user was warned that one safety tip would be to walk
the terrain to be mowed before driving it, especially on slopes and uneven