New York State Court of Claims

New York State Court of Claims

KLOS v. THE STATE OF NEW YORK, #2008-013-514, Claim No. 105011


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant failed to prove that the Defendant had either actual or constructive notice of an alleged dangerous condition regarding a weld on a weight bar and further failed to prove that Defendant had breached any duty of care owned to Claimant. Hence, the claim is dismissed.

This claim arises out of an accident causing personal injury to Claimant which occurred on October 24, 2000 in the west recreation yard at Wyoming Correctional Facility (Wyoming) where he was incarcerated. This trial was bifurcated and this decision will be limited only to issues of liability.

Claimant stated that he had been assigned to the horticulture unit when he arrived at Wyoming. Approximately two months prior to the accident he had volunteered to work in the west recreation yard at the facility[1] and had been assigned to various jobs there such as lining the baseball and football fields, getting the equipment ready for use, picking up debris, as well as other related responsibilities. He stated that he had not received any safety instructions relating to his volunteer work assignments in the recreation yard. On the day of the accident he was called to the yard at 6:30 p.m. before it was opened for use by the general population of inmates and was instructed to pick up the weights in the lifting area.

The weights in the west yard are located in a covered structure, open on all four sides, with racks for the weights, benches and a rubber mat over a concrete floor. The obvious purpose of the mat is to absorb the shock and force of the weights when they are dropped (released) by the exercising inmates. It goes without saying that this area has a lot of activity throughout the year with the winter being the obvious time when use decreases depending on the weather. The weights, bars and other lifting apparatus located in this area originate from the indoor weight area where inmates used them until new equipment was provided. These older, used weights and related apparatuses were then sent to the various yards to replace even older and possibly damaged equipment. In accordance with a Department of Correctional Services (DOCS) memorandum dated November 23, 1998, all free weight plates were to be welded to the weight bars (Exhibit U).

Wesley Schaub, a vocational welding instructor at Wyoming, testified that he had held that position for 20 years, and he had had experience with both private industry and the State of New York for more than 35 years. He testified regarding the various certifications he carries in the field of welding.[2]

Inmates enrolled in Mr. Schaub’s vocational welding class are trained over a period of four to five months and then are allowed to begin work in the shop under his supervision, as well as the supervision of other instructors at Wyoming. The inmates work on a variety of projects including the repair and alteration of weights to be used outdoors. Generally, the weight training equipment received from the indoor gym is received in his shop for modification before it is placed in the yard for use by the general population. According to Mr. Schaub, when a weight bar arrives the sleeve that covers the end of the bar is ground down, removing its chrome surface to allow better visualization of the area which he marked in orange on Exhibit F. The plates are then slipped onto the bar and welded to a collar which in turn is welded to the sleeve, holding the plates in place (Exhibit N).

Mr. Schaub then explained that the hex nut at the end of the bar is removed and a grinder is used to create a groove. The nut is then reattached, tacked with a weld and then a weld approximately 1" to 2" deep is created to hold the hex nut in place (see Exhibits J and R). He went on to testify that either he or the other instructors always inspected the work done by inmates during this process, and, if a crack or some other defect was noticed, the particular object would be flagged and not allowed in the yard until corrected. He stated that in his experience he had never seen a weld fractured to the point that it could not and did not hold the weights on the bar.

Claimant described the yard area to be cleaned as a mess from prior use, with weights scattered all over the ground. He was unable to move an Olympic-sized bar which, without weights, weighed approximately 125 pounds. With weights attached to the bar, it was estimated that the combined weight would be ±250 pounds. As Claimant was unable to lift the bar and weights by himself, he asked another inmate, identified as Brian Watkins, to help. With Mr. Watkins, who was taller than Claimant, at one end and Claimant at the other end, the two men lifted the bar. According to the testimony, Claimant proceeded to walk backwards, holding onto the sleeve. He testified that his head was turned to see where he was going and to avoid stepping on other weights, when suddenly the sleeve he was holding came loose and the weights fell on his right ankle, resulting in a fracture to his right leg just above the ankle.

Since Mr. Watkins was unavailable for trial, his April 24, 2003 deposition was admitted into evidence (Exhibit 1). His deposition testimony was consistent with that of Claimant’s as it pertains to the relevant facts concerning this accident. He added that he was taller than Claimant and when he lifted his end of the bar, it was higher than the end lifted by Claimant. As Claimant took one step backward, a weld allegedly broke and the weights fell on him. Mr. Watkins stated that later he found a sharp piece of metal which apparently led him to conclude that the weld had broken, and he took that up to a correction officer after the accident (Exhibit 1- pp. 6 and 7). He also stated that the bar was taken to an officer and was placed behind the recreation shack to be sent for repair. There was no mention, however, of the allegedly loose plates and whether they were collected or brought to an officer.

Mr. Watkins added that during the time he volunteered to work in the recreation yard he was personally aware of many welds breaking and the bars having to be removed. In each instance the break would result in the formation of a sharp piece of metal which he then returned to an officer along with the bar, since both were too dangerous to remain in the recreation yard. He stated that this particular bar was returned to the yard a few days later and he knew it was the same bar because it was the only “225”[3] in the west yard (Exhibit 1 - pp. 9, 10 and 11). Mr. Watkins acknowledged that he and another inmate carried Claimant to the recreation shack after the incident since he was unable to walk by himself. It was Watkins’ experience that weights are damaged or broken frequently, as they are dropped by inmates from various heights and have to be removed and repaired (Exhibit 1 - pp. 14 and 15). There were no other eyewitnesses to this accident.

Thomas Bair, Claimant’s expert, testified regarding the facility’s practice of welding cast iron, carbon steel and stainless steel when preparing weights for use by inmates. He stated that the measured weight plates were made from cast iron and that this material was difficult to weld to stainless or carbon steel. Part of the problem, in his opinion, is that the integrity of the weld is dependent on uniform heating and cooling of the metal involved, and if there is no uniformity, it is possible for small hairline cracks to form at the site of the weld. This could affect the integrity of the weld and compromise its strength. He opined that the only sure way to verify the integrity of the weld would be to x-ray it, which the Defendant requires to be done on certain public construction projects.

However, according to Mr. Bair, the most common method was to visually examine the weld. He examined Exhibit K, and more particularly the sleeve, which he opined was most likely carbon steel and chrome plated. His examination of photographic Exhibit M led him to conclude that the collar which was welded to the carbon steel weight bar was also carbon steel. This collar was designed to hold the cast iron weights in place. It was his opinion that the weld revealed in Exhibit K showed that the weight plate, which he believed to be cast iron, was welded directly to a carbon steel bar, and there was no way anyone could guarantee that the weld would hold. He also testified that, giving consideration to the amount of sheer force, as well as shock force, these bars are expected to withstand, there is a distinct possibility that the weld would develop cracks compromising its strength. Mr. Bair also referred to Exhibit K, and more particularly the end of the bar, which shows the sleeve welded to the bar and hex nut so as to hold the sleeve in place, and testified to what, in his opinion, was the proper manner to perform the job. In reviewing photographic Exhibits K, P, Q and R, he opined that the weld attaching the sleeve and the hex nut appeared to be sound since it involved like metals. He acknowledged that the weights in the photographs he examined did not show the actual weights or the actual bar that allegedly broke when Claimant was injured.[4]

On cross-examination Mr. Bair conceded that after he examined Exhibits K and O there appeared to be a collar (marked with an orange pencil on Exhibit O) where the sleeve butts up on the weights, and in his opinion, the weld holding it in place was of carbon steel to carbon steel (which would be appropriate), as opposed to his initial testimony that the cast iron plates appeared to be welded to carbon steel. In other words, the welding of like metals, as contrasted with the welding of unlike metals, was, in his opinion, appropriate.

John Zak, the Recreational Directional at Wyoming at the time of this accident, had the responsibility to oversee the recreation and sport activities, as well as all the equipment, including the weights’ care and maintenance. The equipment, according to him, is inspected daily when possible and includes the athletic fields and a quick view of all equipment, including the weightlifting area, to be sure that it was safe for use by the inmates. A record or log is kept of these inspections (see Exhibit T, Mr. Zak’s Weight Area Inspection memorandum for October 21, 2000). The weight-pad area is open three times a day during the spring, summer and fall. In the winter it is available two times a day, weather permitting. Mr. Zak went on to describe how weights were transitioned from the inside gym to the outside weight pads in the recreation yards and how the weights are permanently affixed to the bars before they are placed on the outside pads. He acknowledged that the areas set aside for weightlifting, both inside and out, were the most used areas at the facility and that the equipment was subject to the most abuse. He also pointed out that inmates generally would discourage abuse of the equipment by others since if some piece of equipment is broken, it affects anyone who wishes to use it in an exercise routine.

While there was a specific direction that all weights were welded to the weight bars, Mr. Zak stated that was not the case at Wyoming (Exhibit U). The only pieces of weight equipment that were unitary (i.e., one piece, and hence not welded) were the so-called dumbbells. He went on to explain that galvanized rubber mats approximately ½" to ¾" in thickness covered the floors of the weight areas and that these mats were designed to absorb the shock of weights when dropped to the ground. He reviewed Exhibits F, G, H, I and J, identifying the sleeve and explaining how it is removed from the bar to be adapted for use by the inmates. He went on to identify Exhibits K through R as photographs showing the types of equipment located at the west yard weight pad at the time of the alleged accident.[5] While he identified Exhibit T, dated October 21, 2000 (3 days prior to the accident), as the inspection sheet he used to record his daily inspections of weight areas, he was unable to produce an inspection report for October 24, albeit acknowledging that he had unsuccessfully searched for one for that date. Mr. Zak opined that the inspections he and his staff perform are considered to be in accord with good and accepted practices and that he has never seen a clean break of a weld so that the weights would not be held on the bar. He explained that as a general rule a broken device is usually sent to the welding shop within a day after it is discovered, unless the shop is not open, in which case it is stored at the yard shed until it reopens.

In response to questions by Claimant’s counsel, Mr. Zak stated that over his career at Wyoming he could recall only eight or ten times when he had a concern over the condition of a weld on a piece of equipment, and generally that involved a crack in the weld which rendered it unsafe in his opinion.

Thomas Brunner, a correction officer (CO) at Wyoming, worked in the west yard and was on duty on the day of the accident. He testified that there are usually three to five correction officers assigned to the yard, depending on the number of inmates who are present there. He has been assigned to the west yard, third shift, since 1999. He testified that neither prior to the accident nor thereafter has he ever seen a weld break. He stated that generally if weights break or are damaged, they would be brought to the shed to be held until they could be sent to the shop to be repaired. He stated that he prepared a portion of Exhibit V, which was the yard log for the day of the accident. The volunteers, such as Claimant and Mr. Watkins, are generally permitted into the yard to prepare it for the recreation period that starts at 7:30 p.m., but since Claimant’s injury occurred prior to the yard being opened, it was not noted in the log.

Officer Brunner recalled seeing Claimant on the day of the accident, specifically afterwards, when he was approached while Claimant was being assisted by two other inmates. CO Brunner was told that Claimant had been injured, and he observed that Claimant’s foot was bent out of normal position. He related that Claimant stated that he had “dropped a weight” on it. He went on to testify that it was his experience that if a piece of equipment broke, inmates would immediately bring it to the shed to be fixed, as they wanted it repaired and returned to the yard as quickly as possible.

Claimant recalled his expert, Thomas Bair, to the stand in rebuttal to some of Mr. Schaub’s testimony relating to the welding process used on the weight bars by the Defendant. Rather than engage in a detailed recitation of Mr. Bair’s rebuttal testimony, I find that his analysis was not probative and I accorded little weight to that discourse. I am fully cognizant that he did not have an opportunity to examine the Olympic bar in question and his frame of reference was limited to an examination of the post-accident photographs in evidence. Moreover, many of the assumptions he was forced to make arose either from a misunderstanding of the practice used by Defendant or Mr. Schaub’s testimony. His testimony was replete with assumptions as a consequence of the passage of time between the date he was first contacted and the examination of the evidence, and I could not give it much probative weight.

It is well settled that the Defendant has a duty to maintain its facilities, including its prisons, in a reasonably safe condition in view of the circumstances (Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). However, the Defendant is not an insurer against any injury which might occur on its property (Bowers v State of New York, 241 AD2d 760), and negligence cannot be inferred solely from the happening of an accident (Killeen v State of New York, 66 NY2d 850). If Defendant created the alleged dangerous condition, that constitutes actual notice (Lewis v Metropolitan Trans. Auth., 99 AD2d 246, 249, affd 64 NY2d 670). To prove constructive notice, the alleged defect must be visible, apparent and have existed for a sufficient period of time prior to the accident to allow Defendant to discover it and take steps to remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837).

Claimant’s version of the accident, corroborated by Mr. Watkins, the only other witness to the accident, was that the sleeve came off the end of the weight bar he was holding, and the weights then struck and injured his right ankle. Their testimony, in combination, is persuasively contradicted by the Defendant. In fact CO Brunner, who was on duty in the west yard at the time of the accident, recalled Claimant being assisted to his post by two inmates and tellingly recalled that when he asked Claimant what had occurred, was told that weights had dropped on his ankle. There was no indication that the weld on the sleeve had broken or that the equipment failed in some way. In addition, the inmate injury report signed by Claimant states: “I was carrying one end of the weight and it dropped on my foot” (Exhibit X). That corroborates CO Brunner’s recollection of the initial report he was given when he first encountered Claimant and the two inmates assisting him.

While Claimant maintains that the weld broke and the sleeve came off the bar, causing the weights to fall on his right leg and foot, I find that there is no credible evidence before me beyond Claimant’s testimony and some support in Watkins’ deposition testimony, that supports his assertion. His expert, hampered by the passage of time and the inability to inspect the actual Olympic bar and sleeve except in photographs of generic, albeit similar, bars taken several years post-accident, was only able to offer opinions that were equivocal, and in some instances based on erroneous information. As noted above, he initially stated that the sleeve was welded to the weight plates, which shaped his opinion that it was inappropriate to weld cast iron to steel, and the result would or could result in the creation of a dangerous weld that could weaken the junction. He later acknowledged that that assumption was factually incorrect, and that the collar that was welded to the sleeve holding the plates in place and the sleeve were compatible metals and the work was consistent with good welding practice. Moreover, he went on to state that the weld at the end of the bar that held the sleeve to the bar appeared to be a good weld. In sum, I am unpersuaded by his testimony that the Defendant’s welding practices deviated from generally accepted welding practices or that it was negligent at the time of the accident.

I fully appreciate the limitations he was laboring under and credit him as very knowledgeable in his area of expertise. It was abundantly clear to me that he was compelled to preface and equivocate his opinions in what I considered to be inexplicit testimony, especially on rebuttal.

Conversely, the Defendant’s expert, Mr. Schaub, by virtue of his employment at Wyoming as one of the vocational welding instructors, was well versed in the welding practices employed by Defendant regarding the various weights. He testified credibly that the use of the MIG welding technique to weld steel to steel, as done on the weight equipment, was a good and accepted practice. In addition, he stated that the welding of the sleeve to the bar and the hex hut at the end to hold the sleeve in place resulted in a strength of ±140,000 pounds per square foot, and that the fashion by which Claimant was holding the bar would not have generated enough force to cause that weld to break. He acknowledged that the weight equipment was in regular use and subject to misuse or abuse by inmates, which could cause hairline cracks to develop in the welds, but that this did not weaken its strength and it would not have broken in the manner described by Claimant. He went on to state that before a weight is sent into the yard he personally inspects the weld on each piece welded by the inmates under his supervision, and if there appears to be a problem, it is rejected and has to be rewelded. In the 20 years that Mr. Schaub has been at Wyoming, he has never known of or seen a broken weld on an Olympic bar.

Needless to say, Mr. Watkins’ assertions that this weld broke and the weights came off the bar but the sleeve remained (Exhibit 1 - pp. 6-8), and that he had seen many welds break (Exhibit 1 - p. 10), are contradicted by Mr. Schaub, who testified that he never saw a broken weld, and Mr. Zak who testified that he had never seen a clean break of a weld on a bar that allowed weights to slide off the bar. Of course, Mr. Watkins’ unavailability to testify in person, while Messrs. Schaub and Zak were present to allow my positive assessment of their credibility, also worked to Claimant’s disadvantage.

Nonetheless, assuming arguendo, even if the weld had broken (and I clearly make no such finding), there is no evidence that the weld was negligently applied or that there was a defective weld, and thus no evidence that the Defendant was either on actual or constructive notice thereof. Thus, while there was an accident and Claimant was injured thereby, it was not the result of culpable conduct by the Defendant.

Weighing the totality of the proof before me, I find that the Claimant has failed to prove by a fair preponderance of the credible evidence that the Defendant had either actual or constructive notice of an alleged dangerous condition or that it had breached any duty of care owed to Claimant. I would be remiss in failing to acknowledge the vigorous and effective advocacy by counsel for both parties, particularly as Claimant was hampered by an inability, through no fault of his own, to have his expert inspect the actual bar and welds, limiting the strength of the evidence he was able to present in support of the claim.

Accordingly, the claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.


December 1, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]See Exhibit 1, pg. 4 of the deposition of inmate Brian Watkins who assisted Claimant on the day of the accident.
  2. [2]He holds an ASCME certification, as well as a NYSDOT certification and a Naval Nuclear Stamp.
  3. [3]Reference to “225” apparently refers to the combined weight of the bar and the weights attached to it. Claimant had estimated the weight to be ±250 pounds (p. 3 supra). Regardless, it was heavy. All quotations are from the Court’s trial notes or the audio recording of the trial unless otherwise noted.
  4. [4]It is acknowledged that the Olympic bar in question was not preserved or secured after this incident, and indeed there was no duty to have done so. While this clearly hampered both parties, it served as a greater impediment to the Claimant who bears the burden of proof.
  5. [5]All photographs in evidence were taken several years after the accident.