New York State Court of Claims

New York State Court of Claims

FLORES v. THE STATE OF NEW YORK, #2008-013-503, Claim No. 104289


Synopsis


Defendant is found 50% liable for an injury to inmate in a press brake machine resulting in the amputation of Claimant’s thumb, index, middle and ring fingers, as well as the top portion of the little finger, due to the inadequacy of training and supervision by Defendant, and Claimant’s liability is also assessed at 50% due to his lack of attentiveness.

Case Information

UID:
2008-013-503
Claimant(s):
ERIK FLORES
1 1.The Court has sua sponte amended the caption to reflect the only properly named defendant.
Claimant short name:
FLORES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104289
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
PETER N. LITTMAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant Erik Flores was an inmate housed at Attica Correctional Facility (Attica) who suffered personal injury on August 6, 1999 at about 9:10 p.m. as a result of his operation of a Niagara Press Brake #4 (PB #4). He alleges that the press brake was defective in that it lacked appropriate safety devices and that he was not properly trained or supervised in the use of this particular press brake. He also alleges that his work station on that day was not properly guarded to provide reasonable or adequate protection for him in the performance of his work.


After Claimant arrived at Attica in the spring of 1999, he applied for and was accepted into the metal shop training program. He went through the orientation process and training program over a period of two days. According to Thomas Karkowski, a civilian employee of the Defendant who was in charge of the orientation for new inmates, orientation consisted of viewing videos, reading some papers and attending lectures on different aspects of the metal and machine shop.

While the videos did pertain to safety issues in a general manner, according to the witnesses they did not specifically address the press brakes or other machinery. On the second day of orientation the new inmates were taken through the shop and observed the type of work they would be doing. According to Mr. Karkowski, they did not stop at any specific machine such as a press brake to have an operator demonstrate how to operate the machine, nor were they given any hands-on training by staff members during the orientation. He stated that during orientation he would explain the various safety features and devices on the machinery to the inmates. With regard to the punch presses and press brakes, he explained the use and purpose of the two palm-button operation, which also serves as a safety device, since it keeps the operator’s hands from entering the pinch-point area of the press while it is in operation. If either one or both of the operator’s hands come off a palm button, the machine will automatically stop. Mr. Karkowski stated that attached to the hydraulic press brake machines such as the PB #4 at issue here, there was a foot pedal involved in its operation, and, if the operator removed his foot from the foot pedal, the dies would return to the top of the press if the forming procedure had been completed. It is not clear, however, if he went into any detailed explanation of the press brake and its operation. After this two-day session, Mr. Karkowski had no further involvement with any particular inmate.

Press Brake #4 had been removed from service at the beginning of July 1999 due to its failure to “return to top of stroke dwell for anti-back bend. Inoperable. Broken wire on H4 valve” (Exhibit 40). It was not placed back in service until August 6, 1999, the very day of the accident. It is to be remembered that Claimant had not been trained in the operation of, nor had he any experience on, this press brake until directed to perform a process involving the bending and flattening of sheets of metal to be used in the making of file cabinet drawers. This involved the lowering and raising of a die to create a 90° bend in the sheet metal. The piece of sheet metal was then moved to an adjacent part of the press brake and the bend was flattened.

Claimant had been in the metal shop since June of that year, but worked with punch presses. Mark Kaitanowski was the regular supervisor of the “B” shift and introduced Claimant to the machines, particularly in the operation of the punch presses, explaining the use of the palm buttons to operate the machines. According to Claimant, it appears that any and all “hands-on training” was generally done by fellow inmates, not experienced civilian staff.

On the night of the accident neither Mr. Kaitanowski nor Mr. Karkowski was on duty in the machine shop. Instead, Jack Kasprzyk, a civilian employee of the Department of Correctional Services (DOCS) and an Industrial Training Supervisor, was working that evening. He generally did not work the 3:00 p.m. to 11:00 p.m. “B” shift, but on the evening of August 6, 1999, he was working overtime. He stated that he did not know Claimant prior to that evening, nor was he aware that Claimant had not been trained on or operated the PB #4. This fact is confirmed by Exhibit TT, a Work Training Record maintained by the civilian employees in the Attica metal shop which records the number of hours each inmate worked on the particular machines in the shop. In Exhibit TT, each check mark in the box associated with the inmate’s name and a particular machine represented a six-hour credit for the particular inmate on the designated machine. Five check marks, or 30 hours, was required in order for the inmate to be deemed qualified on the various machines. With respect to Claimant and the PB #4, the box was empty (Exhibit TT).

While there were other inmates working in the metal shop that night who had experience on this particular press brake, Mr. Kasprzyk assigned Claimant to work on the PB #4. He testified that on that evening he demonstrated the operation of the PB #4 for Claimant and explained to him what project he was working on, but used a piece of sheet metal that was bigger (Transcript - p. 75) than the pieces Claimant was to use in preparing the drawer body (Exhibit A).

Mr. Kasprzyk said he demonstrated how Claimant was to hold the piece of metal for the bending and flattening process. This process would also require the operator to use a foot pedal rather than the set of two palm buttons Claimant was most familiar with, since his hands were required to hold the sheet metal pieces. Once the first stage of the bending process was complete, the operator was required to move the pieces to an adjacent part of the press where the bend edges would then be flattened. That would require him to also move the foot pedal in order to operate the press and complete the process.

According to Claimant’s uncontradicted testimony, he had worked in the metal shop at Great Meadow Correctional Facility prior to his transfer to Attica, but his experience there was limited to power tools such as saws and drills, but not presses. After his transfer to Attica he was accepted into the metal shop program on his second application. He went through the orientation process and subsequently went to work on the floor. He was never given any hands-on training regarding the operation of the presses during orientation, but had been instructed regarding the danger that each machine posed to the operator’s safety and that he had to be alert not to place his fingers at points where they could be injured. Claimant stated that he was told how to operate a punch press by “set up guys” who were other inmates in the program and had experience on these machines (Transcript - p. 148). A punch press differed from a press brake according to him since it is designed to punch holes in the sheet metal, while a press brake is used to bend and form sheet metal. While the punch press had a ram and die feature, it is unclear whether it was similar to the ram and die on a press brake, but apparently operated by the use of the palm buttons, not a foot pedal.

Regardless, Claimant never had any experience on a PB #4 since it was being repaired and was not placed back into service until the day that he was injured. It is clear that on that night, although there were other inmates working who were more experienced than Claimant in the operation of a press brake, he was the one directed to operate this press. There is a dispute over who actually trained Claimant on the operation of the machine that evening, with Claimant maintaining that it was not Mr. Kasprzyk who trained him, but another inmate whose name he did not remember, but whom he referred to as a “set up guy.” He stated that the machine was set up by this person who then instructed him on the PB #4, including the use of the foot pedal, a device which he had never used in any of his other assignments in the Attica metal shop or elsewhere. Claimant went on to state that before he was left alone to start this project, he did one piece under the observation of the person who “trained” him. This was contrary to what Mr. Kasprzyk stated at trial. He testified that he instructed Claimant over a five- to ten-minute period. He then testified that after that period, “we usually [emphasis added] watch and - I shouldn’t say usually. We always watch the man do a piece or two to make sure he’s doing it correctly before we let him go on his own” (Transcript - p. 221).

Claimant, after Mr. Kasprzyk left him alone, proceeded to operate the PB #4 as instructed. He stated that he would place the piece of sheet metal on two sleeves or braces and start the first cycle, which would bend one side of the metal sheet to a 90° angle. He then turned the metal sheet and did the same procedure to the other side. When he completed a piece of sheet metal, he moved it to that part of the press which was set up to flatten the bends. After placing the sheet where he had been instructed, he slid the foot pedal over to the new position with his foot, then inserted his foot and depressed the button inside to engage the third cycle of the process and, followed the same procedure in the fourth cycle where the remaining side was flattened. He then placed the completed piece on the pallet, which apparently was next to him, and proceeded to the next piece.

On two separate occasions that night he was told to step away from the machine so that Mr. Kasprzyk could work on a piece of sheet metal that had been improperly formed by another inmate. On each occasion Claimant did not watch the “remedial” procedures, but did observe that the piece being worked on by Mr. Kasprzyk appeared to be of a thicker gauge (Exhibit B - described as ten gauge) than the file-drawer pieces (Exhibit A) he had been working on that evening.

After Mr. Kasprzyk finished work on the two improperly formed pieces, Claimant resumed working on the pieces of sheet metal he had been assigned to before the interruption. He was not sure as to how the accident occurred, but stated that it happened at a point when he was moving a piece of metal to that portion of the press that would flatten the 90° bend in the piece of metal. At some point later in the evening, an inmate named Otero came to Claimant’s work station with another piece of malformed sheet metal and asked Claimant where to put it while he went to presumably get Mr. Kasprzyk to fix it. Claimant did not observe where it was placed and turned back to his work. As he was positioning the metal piece, he stated that the press suddenly started its cycle, coming down and pinning his right hand between the dies, resulting in the traumatic amputation of the thumb, index, middle and ring fingers, as well as the top portion of the little finger.

Everard Brown, a civilian employee working in the metal shop, was exiting the bathroom when he heard Flores screaming. He went to the machine and turned the power off, but the ram failed to complete the cycle which would have released Claimant’s hand. Mr. Kasprzyk also came to the scene and observed an inmate he believed to be Bell hit the “ram up” button, causing the ram to recycle and free Claimant’s hand. Mr. Kasprzyk noted that Claimant’s foot was not on the foot pedal he had been using to operate the machine during the process (Transcript - pp. 85-86). While there were two palm buttons on the machine which could start and stop the ram, Claimant could not use them as previously explained and was required to use the foot pedal.

Mr. Kasprzyk went on to testify that he was familiar with both the Niagara Press Brake Safety Manual (Exhibit 39), as well as the American National Standard for Machine Tools - Power Press Brakes - Safety Requirements for Construction, Care, and Use (Exhibit 41, commonly referred to as ANSI). He conceded that some of the safety recommendations in Exhibits 39 and 41 could have been provided to inmates in the shop, but that was not done at Attica. While he believed that the foot pedal which Claimant was using that evening had a flap at the point of entry for the foot which acted as a safety device, he acknowledged that there is a possibility that an operator could inadvertently insert his foot and engage the press by accidently pressing down. He added that the machine was set up that evening for work on the metal sheets handled by Claimant; once it was engaged, neither the presence of Claimant’s gloved hand, nor contact with his hand in the point of operation, would prevent the press from completing a full cycle. When Mr. Kasprzyk inspected the press after the accident, he observed no damage to the dies or the machine that would be expected if there had been a thicker piece of metal involved, as alleged by the Defendant. He stated that there were other ways to stop the press during a cycle, including removal of the foot from the button in the foot pedal, which is what he believed Claimant did that night.

After the requisite investigation was completed, an Unusual Incident Report was prepared and filed by the Defendant (Exhibit XX), the contents of which were forcefully disputed by Claimant. Over his objections I permitted it into evidence with a ruling that I would accord it whatever weight I deemed appropriate, allowing for the fact that it is conclusory in many instances and without adequate explanation for some of the conclusions reached. For example, on the misbehavior report (part of Exhibit XX) prepared by Lt. (then Sgt.) Carlucci, and cosigned by Sgt. Lauricella, who investigated the accident, he notes that “[i]t was determined through further investigation by myself that Inmate Otero was in fact standing behind break [sic] press #4 holding the unauthorized piece of steel.” Nowhere is there any explanation of what constituted further investigation or what led him to this conclusion.

I am left to speculate just what evidence he received that placed Inmate Otero behind the press, particularly when the record before me supports the fact that there were no witnesses to the accident; no observation of where Inmate Otero was at that time; or for that matter how or when that piece of steel ended up behind the press brake since it was not observed there when the accident happened. In fact, there is nothing in this record that contradicts Claimant’s testimony that after Inmate Otero brought the sheet of malformed metal (Exhibit B) to Claimant’s work station and left saying he was going to get a supervisor, that Claimant did not see where Inmate Otero had placed it. During the course of the investigation and after the third interview between Lt. Carlucci and Inmate Otero, he allegedly then stated that he was behind the press. But Mr. Kasprzyk stated that he immediately went to the scene of the accident and saw no one but Claimant. Mr. Brown stated that he exited the bathroom after he heard Claimant cry out and immediately went to the PB #4 and shut it off even before Mr. Kasprzyk arrived, as he apparently was the first one there. Contrary to the Defendant’s assertion that Mr. Brown observed Inmate Otero behind the PB #4, he never stated that he observed Inmate Otero. A careful reading of Mr. Brown’s deposition[2] indicates that he was not sure who was behind the machine, nor was he sure when the inmate arrived, other than that it was before he arrived. He stated that the PB #4 was just 30 feet from the bathroom that he was in when he heard someone scream; he proceeded to PB #4 along the corridor and noticed this unidentified person as he approached the machine and shut it down. He was unable to identify Inmate Otero as the person behind the press brake and he could not rule out that whoever it may have been was responding to Claimant’s cries (Exhibit JJJ).

Furthermore, any statement given by Claimant at that time must be tempered by the facts and trauma of this catastrophic accident and his obviously anguished and impaired condition when he was interviewed. These are just two of several aspects that cause me concern regarding the investigation of this tragic accident. It is for this reason that I have not accorded the Unusual Incident Report (Exhibit XX) and its conclusions any significant probative weight or value.

Claimant called two experts to testify regarding the alleged failure by the Defendant to provide Claimant with a safe work environment. Eugene Camarota, a consulting engineer licensed by the State of New York, testified extensively regarding the American National Standards Institute’s standard B11.3-1982 and its applicability to the Defendant, and he considered it to be the standard in the industry to be used by employers and owners of power presses (Exhibit 41). He also stated that the standards set forth in that exhibit contained mandatory language and, while not a regulation, nonetheless it was his opinion that it was a guideline for owners and employers using power presses. He stated that it was the duty of an owner of power presses, including press brakes, to properly train anyone who would be using these machines, referencing a long list of safety practices and procedures in part E6.1.2 of the ANSI standard (Exhibit 41, pp. 61 et seq.).

It was Mr. Camarata’s opinion that Claimant had not been properly trained in the operation of the press brake and the appropriate use of the foot pedal. In addition he was of the opinion that the Defendant failed to have appropriate point of operation safeguards as required by part E6.1.4.1 of the ANSI Standards. In essence the Defendant failed to have a guard in place to prevent the entry of the operator’s hands into the point of operation and he specifically alluded to a restraint device which would have restricted Claimant’s hands from entering into the pinch point (point of operation) area of the press. He concluded that Claimant had been given inadequate training in the operation of the PB #4 and up to that evening had not ever used this press or the foot pedal to operate any of the other machines on which he had been trained.

William Dickinson, Claimant’s other expert, is a mechanical engineer employed by Wolf Technical Services which specializes in Forensic Engineering. He was aware of the ANSI standards, the Niagara Press Brake Manual and the Hazard Avoidance Tree (Exhibit 46). He stated that the last item is a method whereby a hazard was identified and a process developed to avoid or minimize the apparent hazard. He concluded, after his study of this accident and the furnished materials, that Claimant’s injury was caused solely by the Defendant’s failure to properly train and supervise Claimant in the operation of the PB #4 pursuant to the Niagara manuals (Exhibits 38 and 39; see Transcript - p. 375). In addition he faulted Defendant in not having in place point of operation safeguards which would have, in his opinion, prevented this accident.

Defendant’s expert, Peter Schwalje, an engineer licensed by the State of New York, not surprisingly took exception to the opinions expressed by Claimant’s experts. Like Claimant’s experts he did not visit the scene of the accident, nor did he observe the press brake in question until several years after the accident. He was familiar with Exhibits 38, 39, and 41, and did not offer any meaningful disagreement with respect to the content of each. However, he generally disagreed with Claimant’s experts’ reliance on them in forming their opinions. He commenced his investigation by first determining what in his opinion was the cause of the accident and then reviewing the Defendant’s culpability. It was his conclusion and opinion that Defendant’s training of Claimant in the operation of the various machines met all applicable safety standards in the industry. In so doing he relied on the Defendant’s version of how the accident occurred and the Unusual Incident investigation and report, much as Claimant’s experts relied on Claimant’s version of how the accident occurred.

Mr. Schwalje also buttressed his investigation of the accident by inspecting the metal shop, albeit more than three years after the accident, finding that the metal shop was properly designed with good lighting, and the work space area was well organized at that time. He reviewed Claimant’s deposition, bills of particulars and the depositions of various correction officers. He was clear that the ANSI standards as contained in Exhibit 41 were merely guidelines that owners of the power presses could, but were not mandated to, implement in spite of the mandatory phraseology contained in the standards. In fact, he pointed to the third page of the exhibit to enforce his conclusion that it was not a mandated standard in the industry since it clearly states that its use and implementation are voluntary and that even if adopted does not preclude the use of products, processes or procedures (emphasis added) not conforming to the standards set forth in the document. The preamble to the document also states that the American National Standards Institute does not develop standards nor does it give an interpretation of its standards.

Mr. Schwalje stated that when he is retained, generally it is by the manufacturer of these types of machines, including Niagara, but he has never done any design work for them. In the cases where he had been retained he had never observed a restraint device employed, but had observed the use of guarding barriers (Transcript - pp. 613, 614). In response to questions regarding cases he worked on involving injuries to an operator’s hands and fingers, he acknowledged that there had been no guard or restraints available for the operators and that the die setups placed them in a position where their hands and fingers could inadvertently enter into the point of operation, resulting in injury. He added that once a potential hazard is identified you do not necessarily guard against it, but rather you study it in order to institute a way to control the hazard (Transcript - pp. 615, 616). Of course one method of control would be guarding against the hazard, but it was not the sole method.

He opined that proper training is an important element in avoiding accidents and controlling exposure to identified hazards, as is controlling the work environment surrounding the worker while he is doing his assigned task so as to eliminate the possibility of distraction or inadvertence of the operator. He stated that, given the work that Claimant was involved in, the use of hand restraints or pull-back devices would not have been any safer than implementation of the zone of safety, which involves the operator keeping his/her hands six inches away from the pinch points at all times (Transcript - pp. 552, 553). Given the size of the file drawer metal sheets Claimant was working on and the manner in which he allegedly had been instructed to perform this work, it was his opinion that if properly performed, Claimant’s hands would not have been exposed to any point of operation or pinch point. Moreover, he opined that given the work assigned to Claimant, a point of operation guard was not practical since, among other reasons, it was too restrictive and confining for the worker and, as a practical matter, it could expose the inmate to injury by other inmates. In the “hemming” process of this operation it was necessary for the operator to be able to move his hands upward quickly and then move laterally to place the formed piece for the flattening process.

It is well settled that the State has the duty to provide its inmates with a reasonably safe workplace (Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665). The State, when it directs an inmate to participate in a work program during incarceration, has a duty to provide reasonably safe machinery and equipment with which to work and to warn and instruct its inmates in the safe operation of the dangerous machinery and equipment he or she will be using (Kandrach v State of New York, 188 AD2d 910; Palmisano v State of New York, 47 AD2d 692). While the Labor Law does not directly apply to this case since we are dealing with an inmate in a correctional facility, and not an employee, §200 of the Labor Law provides the standard of care applicable in a negligence action and the duty imposed on the Defendant to provide a safe workplace.

Initially I find that the ANSI Standards are not standards that are mandated to be followed by owners and/or operators of machinery such as press brakes. In point of fact, at the very beginning of the document the drafters make it dramatically clear that is not its purpose (see Exhibit 41, p. 3). It is left to the owner/operator to implement such procedures as it deems appropriate so long as it meets the relevant standard of care it owes to its operators/employees. Consequently, and contrary to the Defendant’s position, I find that Exhibit 41 has relevance in offering various means to protect its workers should the owner/operator in its opinion determine that it is necessary. I have no quarrel with Mr. Schwalje’s opinion that a safe distance from the point of operation is a minium of six inches and note that the ANSI standards refer to “safe distance” but does not define or quantify its meaning (Exhibit 41- p. 27). Therefore, while there is nothing in this record that indicates that Claimant was given an instruction to keep his hand a specific distance from the point of operation or pinch point, common sense would lead one using the machine to maintain his or her hands a safe distance from these points.

However, what is apparent to me is that the degree and type of orientation/training that Claimant received that evening regarding the operation of PB #4 was inadequate. In fact it could be characterized as perfunctory since it consisted of no more than 5± minutes according to Mr. Kasprzyk and involved the instructor demonstrating the four stages of forming the base of the file cabinet drawer and then allegedly observing Claimant perform the process on one single occasion. Claimant, while he had prior experience on punch presses, had no experience on a press brake and, more to the point, no experience in the use of the foot pedal to activate the cycle.

It is not, and cannot be, denied by the Defendant that Claimant had no experience on this press brake and more particularly the operation of a machine using a foot or pedal press (Exhibit TT). In my opinion five minutes of training was not sufficient, and there is nothing before me that establishes that there was even a modicum of continuing or regular supervision of Claimant despite his inexperience. Everyone agrees that this is a dangerous piece of machinery. In fact Defendant’s expert testified that he had been retained as an expert by the manufacturer of this press on many occasions in instances very similar to the one at bar. My perusal of Exhibit 39 discovered precautions that are necessary to be aware of while operating these machines and which require, in my opinion, more extensive training of those who have no experience in its use.

Furthermore, on the two occasions he was told to step away from the machine so that a piece of sheet metal that had been malformed could be corrected, it was Mr. Kasprzyk who spoke to him, not an inmate. In the incident resulting in the accident he was approached by Inmate Otero who informed him that he had made an error and needed to have the metal sheet he was holding repaired and he was going to get the supervisor, as he apparently had done on the two prior occasions. He then placed the piece down somewhere and, based on the proof before me, I conclude that it was behind the press. There is no proof or description in this record addressing the processes utilized to straighten the other two sheets, and, since Inmate Otero was not involved in either repair[3] and nothing suggests that he was cognizant of the “remedial” procedures, I find that Inmate Otero placed it behind the press while he left to get Mr. Kasprzyk.

The Defendant suggests that Claimant was impermissibly working on Inmate Otero’s malformed ten-gauge metal sheet (similar to Exhibit B), as that piece was found behind the PB #4. This argument is belied by the Polaroid photograph taken by Fire and Safety Officer Schrembs on the night of the accident at 9:30 p.m. (Exhibit D), perhaps 20 minutes after the accident, which clearly shows two metal sheets at the back of the PB #4, one of which appears to resemble the heavier gauged sheet (Exhibit B) left by Inmate Otero, and the second which is similar to the file drawer metal sheet (similar to Exhibit A) which plausibly is the piece he was working on when the injury occurred.

I find that this interaction/conversation between Claimant and Inmate Otero was a distraction, and partly because of the inadequacy of the training and supervision, as a consequence the Claimant’s foot inadvertently and unintentionally depressed the button in the foot pedal enclosure, causing the press to commence its cycle, which resulted in the amputation of the fingers and thumb of his right hand. However, I also find that Claimant bears significant responsibility for this accident. I cannot conclude on this record that the machine was not properly functioning nor that it had not been properly repaired. What is more logical to me is that Claimant was unintentionally but tragically distracted by Inmate Otero and at some point his foot engaged the button which started the cycle while his hand was within the pinch point or point of operation. The inadequacy of training and supervision, being mindful as well that Claimant had not completed any hours of training as systematically recorded on Exhibit TT, was a proximate cause of this accident, along with Claimant’s lack of attentiveness. Both parties bear equal responsibility and culpability for this accident. Therefore, I find that the Defendant and the Claimant are each 50% responsible for this accident.

All motions made at trial upon which decision was reserved and not otherwise decided herein, are denied. The Chief Clerk is directed to enter an interlocutory judgment in accord with this decision. A conference to set a discovery schedule and trial date on damages will be scheduled under separate cover.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

March 19, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [2]Mr. Brown had passed away prior to the trial and his deposition was admitted as Exhibit JJJ.
  2. [3]It was Mr. Kasprzyk and Inmate Frasier.