New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2008-015-088, Claim No. 112408, Motion Nos. M-75212, CM-75246


Claimant's motion for summary judgment was denied and defendant's cross-motion for summary judgment was granted where claimant alleged he suffered burns while attempting to remove bags of cabbage from a pot of boiling water. Defendant owed no duty to provide training or instruction for such a common and ordinary activity such as this.

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:
Lenny Wright, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 18, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for summary judgment on the issue of liability. Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. Claimant alleges that on March 8, 2006, while working in the mess hall at Great Meadow Correctional Facility, he suffered second degree burns to his left hand due to the defendant's negligence in failing to "properly instruct and/or train claimant in operating a kittle (sic) containing hot water" (claim, ¶ 2). The claim describes the incident in the following manner:
On the 8th day of March, 2006, at approximately 12:40 p.m., claimant Lenny Wright, was delivering foods to the South and North serving lines in the Mess Hall from the kitchen area of the facility. When the claimant returned to the kitchen area from the North side, inmate J. People . . . notified claimant that the South-side needed more bags of cabbages onto its serving lines. While the claimant attempted to retrieve two bags of cabbages from a kittle [sic] hot water seeped inside a rubber type glove worn and caused serious [injury] (2nd degree burns) to the left hand of the claimant (claim, ¶ 5).
In support of his motion for summary judgment claimant submitted his own affidavit in which he described the incident similarly:
While in the process of retrieving two of the several bags of cabbage that were immersed in hot water and contained in the kittle [sic], hot water managed to rapidly seep inside of the rubber glove that the Claimant was wearing on his left hand (Affidavit In Support Of Motion For Summary Judgment By Claimant, ¶ 7).
Claimant states in his affidavit that at the time of the incident he was working as a Runner delivering pans of hot and cold food from the kitchen to the serving lines as needed. He avers that he had been assigned this position for only four days prior to the date of the accident and had received no training or instruction in the use, and potential hazards, of equipment used in the kitchen area at Great Meadow Correctional Facility. Claimant argues that summary judgment in his favor is warranted as it was the duty of both the Food Production Cook and the Correctional Facility Head Cook to supervise and instruct inmates as to various safety measures to be employed in the performance of their work (claimant's Exhibit C).

In opposition to the claimant's motion and in support of the defendant's cross-motion, defendant submitted the affidavit of James Pagano, Great Meadow Correctional Facility Food Administrator, in which he states that the claimant was assigned to work in the pot room washing dishes at the time of the alleged incident and "[t]here is no reason why he was anywhere near the kettles being used . . . " (defendant's Exhibit B). Defendant also argues it had no duty to train the claimant in the performance of work for which he had not been assigned and, in any event, the alleged failure to train the claimant was not the proximate cause of his injuries.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]) "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). The evidence produced by the movant must be viewed in the light most favorable to the opponent of the motion, affording the opponent every favorable inference (Horth v Mansur, 243 AD2d 1041, 1042 [1997]). Only after the movant has made this showing does the burden shift to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

As the defendant's motion is dispositive, it will be considered first. It is well settled that “[g]overnmental entities owe a duty to provide inmates engaged in work programs with reasonably safe equipment and training” (Havens v County of Saratoga, 50 AD3d 1223, 1224 [2008] (quotation marks and citation omitted); see also Spiratos v County of Chenango, 28 AD3d 863 [2006]; Maldonado v State of New York, 255 AD2d 630 [1998]). This duty includes “sufficient warnings and instructions for safe operation of the equipment” (Manganaro v State of New York, 24 AD3d 1003, 1004 [2005]; see also Muhammad v State of New York, 15 AD3d 807 [2005]; Martinez v State of New York, 225 AD2d 877 [1996]; Kandrach v State of New York, 188 AD2d 910 [1992]). However, no instruction or training is necessary where the activity performed is a common and ordinary activity requiring only the use of common sense (Wesley v Long Is. Power Auth., 284 AD2d 391, 392 [2001]; Hernandez v Board of Educ. of City of N.Y., 264 AD2d 709, 710 [1999]; Vliet v Crowley Foods, 263 AD2d 941, 943 [1999]). Thus, where the activity is " 'so ordinary and within the ken of the average person, . . . there is no duty to provide instruction, warnings and/or assistance in how to perform it' " (Mangiafreno v Wikstrom Machs., 243 AD2d 690, 690 [1997] [citation omitted] [no duty to instruct how to push cleaning cart down decline]; Stroschine v Prudential-Bache Sec., 207 AD2d 828 [1994] [no duty to instruct worker how to plug extension cord into electrical outlet under desk]; Camarda v Summit Homes, 233 AD2d 285 [1996] [no liability for failure to instruct, supervise or direct employee in the performance of the common and ordinary activity of carrying a ladder]; Cummings v Arde Realty Corp., 154 AD2d 321 [1989] [no duty to train, instruct or direct employee in the common and ordinary activity of walking up a ramp].

Here, viewing the evidence in the light most favorable to the claimant, summary judgment dismissing the claim is warranted. Assuming arguendo that claimant had been assigned to work as a Runner delivering pans of hot and cold food from the kitchen, a fact which is disputed, defendant had no duty to train, instruct or direct the claimant in the performance of so common and ordinary an act as removing a bag of cabbage from a kettle of hot water. Nor was there a duty to warn of the obvious risks attendant to such an activity which should be obvious to one using ordinary common sense (Smith v Stark, 67 NY2d 693 [1986]; Stephen v Sico, Inc., 237 AD2d 709 [1997]).

Based on the foregoing, defendant's cross-motion for summary judgment is granted and the claim is dismissed. Claimant's motion for summary judgment is denied as moot.

November 18, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 16, 2008;
  2. Affidavit of Lenny Wright sworn to June 24, 2008 with exhibits;
  3. Notice of cross-motion dated July 16, 2008;
  4. Affidavit of Joan Matalavage sworn to July 16, 2008 with exhibits.