New York State Court of Claims

New York State Court of Claims

ENDRES v. THE STATE OF NEW YORK, #2008-015-503, Claim No. 111079


Synopsis


Following trial on the issue of liability claim was dismissed. Claimant failed to establish by a preponderance of the credible evidence that the repair stand that allegedly fell apart causing his injury was defectively designed or maintained.

Case Information

UID:
2008-015-503
Claimant(s):
BRUCE H. ENDRES
Claimant short name:
ENDRES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111079
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
The DeLorenzo Law Firm, LLPBy: Thomas E. DeLorenzo, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 30, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This personal injury claim proceeded to trial on the issue of liability on December 20, 2007. The claim alleges that the Department of Correctional Services (DOCS) failed to provide the claimant, an inmate, with reasonably safe equipment for use in a work program at Bare Hill Correctional Facility (Bare Hill). The claimant alleges that a repair stand constructed by another inmate to hold a floor buffer machine “was not in good condition” causing the buffer to fall from the stand resulting in injury (see amended claim, ¶ 4).

The claimant testified that in February 2005 he was an inmate at Bare Hill where he was assigned to work in the facility's Control Building. The Control Building was primarily used as a repair shop and claimant, a maintenance worker, performed various duties including the repair of broken or malfunctioning floor buffers. Although he had no formal training in the repair of floor buffing machines, claimant testified that he learned to repair the machines by observing other inmates. Claimant had never used or repaired floor buffer machines prior to his incarceration in April 2004.

Claimant testified that he was assigned to the maintenance program approximately three months prior to the date of the accident, which according to the claim occurred on February 8, 2005. Upon entering the work program claimant was provided with a questionnaire in which he was asked about his familiarity with various hand tools. For the first few weeks of the work program he observed other inmates as they repaired floor buffers. The most common repair required accessing the reset switch located in the bottom portion of the handle. At first this task was performed by leaning the buffer against a workbench. Approximately 1½ months after the claimant joined the program, a stand was built by another inmate to facilitate the repair of the floor buffing machines. The stand is used by placing it on the floor and tilting the buffer machine forward so that the motor rests in a notch located at the top of the stand. Once positioned on the stand the access panel on the underside of the handle was exposed and more easily accessed in making needed repairs. The claimant testified that he built Exhibit 7, which he described as similar to the stand in use at Bare Hill at the time of the accident.

Claimant testified that the repair stand depicted in Exhibits A, D and E was not the stand he was using at the time of his accident. He testified that the stand depicted in those photographs appears much “better built” than the stand he used at Bare Hill.

Claimant testified that the accident occurred on February 8, 2005 in the Control Building while he was attempting to repair a floor buffer using the stand. The claimant wheeled the buffer to the stand, placed the buffer motor on the stand and turned to get his tools. As he turned away he noticed that the buffer had begun to fall from the stand. He reached and grabbed the buffer to prevent it from falling and felt pain in his groin and back. The claimant testified that a fraction of a second elapsed between the time he placed the buffer on the stand and the time it began to fall. As the claimant returned the buffer to the stand he noticed that the upright portion of the stand was loose where it joined the base. Claimant worked the remainder of the day and reported the injury to Correction Officer Boyea the following day.

On cross-examination the claimant confirmed that the accident date was February 8, 2005. He explained that he built the stand received in evidence as Exhibit 7 from memory at the request of his attorney and that Exhibit 7 was constructed utilizing two-by-six boards, whereas the stand involved in the incident was built with two-by-eights. The claimant testified that most repairs to the buffers were to the wiring in the handle, not the motor, and that the stand facilitated access to the wiring in the underside of the handle.

The claimant testified that Correction Officer Boyea was generally present in the Control Building Monday through Friday. He did not, however, report the accident or defect in the stand to Officer Boyea on the day the accident occurred. The witness testified that he first advised Correction Officer Boyea of the accident on February 9, 2005, at which time he signed up for regular sick call, not emergency sick call. He was seen by a nurse for the first time on February 10, 2005, two days after the accident allegedly occurred. The claimant testified that he had used the stand prior to the date of the incident and had never experienced a problem, including a buffer slipping or falling from the stand.

The claimant testified that when he went to the infirmary on February 10, 2005 he “probably” advised the nurse how the accident occurred. He was again shown Exhibits A and E and testified that he recognized the area and the stripper machine depicted in Exhibit E but did not recognize the stand depicted in either photograph.

On redirect examination the claimant testified that he used two-by-six boards to build the stand received as Exhibit 7 because he did not have two-by-eights available at the time it was constructed. The claimant reviewed his medical record for treatment rendered on February 8, 2005 (Exhibit 2, last page) which indicates that the pain in the claimant’s groin "started 2 days ago". He testified that it is possible his injury occurred on February 6, 2005 and not February 8, 2005. He testified that he never told the nurse that he "[w]as working out" when he was injured (emphasis added). Rather, the medical record, according to the claimant’s interpretation, indicates that the claimant “[w]as working but not sure he pulled a muscle” (emphasis added).

On re-cross-examination the claimant testified that he worked out in the gym five days per week in February 2005 and that he was not sure on what date he was injured.

Frank Annunziata was called as the claimant’s next witness. Mr. Annunziata, an inmate, testified that he worked in the Control Building at Bare Hill in February 2005. He recalled an incident during that period in which a buffer came off a stand and the claimant was hurt and had to go for medical treatment. However, the witness testified that he did not know how the injury occurred.

On cross-examination the witness testified that he came to Bare Hill in December 2004 and started work in the Control Building on January 17, 2005. Upon viewing the stand built by the claimant (Exhibit 7) the witness testified that it does not accurately represent the floor stand which was used at Bare Hill in February 2005. The stand depicted in Exhibits A through E, however, did appear to depict the stand used at Bare Hill according to the witness. Mr. Annunziata testified that the photograph marked as defendant’s Exhibit E accurately depicts both the stand used at Bare Hill in February 2005 and the way in which the buffers were placed in the stand during repair[1]. The witness testified that on the date of the accident he had only recently started working in the Control Building and was spending the majority of his time observing other inmates as they performed their assigned duties.

On redirect examination the witness testified that he was aware of only one repair stand in the Control Building at Bare Hill in February 2005 and that it did not have straps to hold the motor of the buffer while it was on the stand. He testified again that after the incident occurred he saw both the stand and buffer on the floor, although he does not know how or why the accident occurred. He saw the claimant place the buffer on the stand and then saw it on the floor tipped over. He testified that he did not examine the stand afterward.

Looking at the stand made by the claimant (Exhibit 7) the witness testified that the two-by-six boards used to build the upright portion of the stand were longer than those used in constructing the stand used at Bare Hill. He again stated that the stand in the photographs received in evidence at Exhibits A through E appeared to be the same as that in use at Bare Hill in February 2005. He testified that no one was working near the claimant and no one hit the stand to his knowledge.

The witness testified that he had not repaired buffers prior to the date of the incident involving the claimant although he had assisted others in placing buffer machines on the stand. He agreed that his testimony was compelled by the service of a subpoena.

On re-cross-examination Mr. Annunziata testified again that he was not looking at the claimant at the time of the accident, that he saw someone help the claimant place the buffer on the stand but did not see anything else until he saw the buffer and the stand tipped over on the floor.

The defendant moved for dismissal at the conclusion of the claimant’s case in chief upon the claimant’s failure to establish a prima facie case of negligence. Decision on the motion was reserved.

Sergeant Thomas Boyea was the defendant’s first witness. Sergeant Boyea testified that he has been employed by DOCS for more than twenty years and that at the time of the claimant's alleged accident he was assigned to provide security in the Control Building at Bare Hill where he worked five days per week, Monday through Friday. There were fifteen to twenty inmates assigned to work in the building. Sergeant Boyea did not recognize the claimant and testified that he was not notified of an accident involving the buffer stand on February 8, 2005. He was shown the photographs marked as defendant’s Exhibits A through E. The witness testified that the photographs marked as Exhibits B, C and D are fair and accurate representations of the repair stand which was used in the Control Building in February 2005. According to the witness he gave an inmate permission to build the stand as a means to facilitate repair work on components contained in the handle of the floor buffers. Sergeant Boyea inspected the stand after it was built by placing a buffer on the stand and shaking it to make certain it was stable. The witness estimated that the repair stand was built a few months before the accident allegedly occurred. The witness also testified that inmates were not provided training in the proper use of the stand because the stand is not a tool. He stated that inmates are provided training regarding the proper use of tools but that training in the use of the stand was not required. The stand was not modified and there were no complaints regarding the stand prior to the date of the incident.

Sergeant Boyea testified that the claimant never notified him of an accident or any injuries involving the buffer stand and that had he been so notified he would have recorded the incident in the log book and sent the claimant to the infirmary. He testified that he reviewed the logbook for February 8, 2005 and it contained no entry regarding an incident involving the claimant. The witness stated that he has a desk in the Control Building from which he is able to observe inmates working and that he never saw the inmates experiencing difficulty in using the stand. He testified that he approved the construction and use of the stand and had the authority to remove the stand from use if it was unsafe. He testified that he was never advised that the screws on the bottom of the stand were loose.

Sergeant Boyea testified that generally an inmate signs up for regular sick call in the afternoon or evening and is seen the next day. In the event an inmate requests emergency sick call, he is seen by a nurse who determines whether or not emergency treatment is required. The witness testified that the claimant never requested emergency sick call or otherwise informed him that he was injured using the buffer stand.

On cross-examination the witness testified that his last day at Bare Hill was in June 2007. Sergeant Boyea testified that he authorized construction of the stand but did not inspect either its design or the type and number of screws used to build it. He never provided the inmates with any guidelines or instruction regarding construction of the stand and never determined the safety of the stand after it was constructed other than shaking the stand at the time it was completed as he described in his direct examination. He estimated the buffer machines weighed approximately 50 pounds.

On redirect examination Sergeant Boyea testified that had the claimant informed him of the accident the following day, he would have noted it in the logbook and reported the incident to his area supervisor. He testified that he reviewed the logbook for early February 2005 and there were no entries involving the claimant. He again testified that he recalled no problems with the buffer stand prior to February 2005. With regard to an inmate’s request for sick call, he stated that he does not make the determination as to whether such a request is an emergency. If an inmate were to advise him of an injury, he would simply ask the inmate if he wished to go to the infirmary.

Brian Gokey was the defendant’s next witness. Officer Gokey testified that he has been employed by DOCS for twenty-four years and was the Fire and Safety Officer at Bare Hill in February 2005. As a Fire and Safety Officer he is responsible for investigating serious accidents at the facility, including accidents involving injury to an employee or inmate. In such a case, he performs an investigation and completes an accident report. He testified that his records reflect no accident reports or logbook entries regarding an incident involving the claimant during the period November 2004 through May 2005. Although his office is in the Control Building, he has no record of an accident involving the claimant and performed no investigation regarding such an accident. He testified that if there was an accident he would have been notified by both the correction officer involved and infirmary personnel. He did not recall being notified of an accident involving the claimant. The witness also testified that the repair stand depicted in defendant’s Exhibits A through E is the same stand he observed being used by inmates in the Control Building at Bare Hill.

On cross-examination Officer Gokey testified that he does not routinely inspect tools or machinery used by the inmates and never used or inspected the subject repair stand. Reviewing the last page of the claimant’s infirmary records (Exhibit 2) he reiterated his prior testimony that although he routinely received reports of accident-related injuries from the infirmary, he received no such report regarding the claimant. His first notice of the alleged accident was when he was contacted by a representative of the Attorney General’s Office with regard to a request that he search his files for records.

It is 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 1123 [2008] (internal quotation marks and citations 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, there is no duty to warn or instruct a person of readily discernible dangers of which he or she is already aware through common knowledge or experience (see Manganaro v State of New York, supra; Hurlburt v S.W.B. Constr. Co., 20 AD3d 854 [2005]; Warlikowski v Burger King Corp., 9 AD3d 360 [2004]; Theoharis v Pengate Handling Sys. of N.Y., 300 AD2d 884 [2002]). To the extent the claim is premised upon the alleged failure to provide proper instructions or warnings in the use of the repair stand, the claim must fail.

There was no testimony that the claimant did not know how to use the repair stand or any other evidence from which it could be inferred that the alleged failure to instruct or warn the claimant proximately caused his injuries. The use of the repair stand is a matter of common sense requiring no specialized training or skill, especially in light of the claimant’s testimony that he had used the stand several times before the alleged incident and had also observed others using the apparatus. Like the facts in Manganaro, supra, Hurlburt, supra, Warlikowski, supra, and Theoharis, supra, the Court finds that there was no duty to instruct or otherwise warn the claimant as any such instruction or warning would have added nothing to the claimant’s appreciation of the potential danger in using the stand.

Claimant also failed to establish the negligent design of the repair stand or that any such design was a substantial factor in causing his injuries. In order to establish the negligence of the defendant in the design of the repair stand, the claimant was required to present expert testimony establishing a violation of an industry standard or generally accepted safety practice (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]; Trimarco v Klein, 56 NY2d 98 [1982]; McAllister v Raymond Corp., 36 AD3d 768 [2007]; Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346 [1998]). No such evidence was presented in this case. Absent evidence that the design of the repair stand deviated from industry standards or generally accepted safety standards liability may not be imposed based upon a theory of negligent design.

Nor may liability be predicated on the contention that the repair stand was in a state of disrepair. “[A] correctional facility is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident” (Spiratos v County of Chenango, 28 AD3d at 864 [internal quotation marks and citations omitted]; Muhammad v State of New York, 15 AD3d at 808). Rather, “the scope of the State’s duty to protect inmates is limited to risks of harm that are reasonably foreseeable” (Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see also Basso v Miller, 40 NY2d 233, 241 [1976] [the scope of a landowner's duty is defined by the risk of harm reasonably to be perceived]). Claimant’s testimony that the supports on the stand were loose is, standing alone, insufficient to establish that the defendant was negligent. Claimant testified that he noticed the loose supports for the first time when he picked up the stand after the incident and that he experienced no problems with the stand previously. In addition, Sergeant Boyea testified that he received no complaints regarding the stand prior to the date of the alleged accident. The failure to present any evidence that the defendant knew or should have known that the stand was defective and in need of repair is fatal to the claim that the defendant was negligent in the maintenance of the repair stand.

In addition to the aforementioned deficiencies in the claimant’s proof, several inconsistencies in the evidence render his version of the incident unworthy of belief. First, claimant’s version of the incident was contradicted by his own witness, Frank Annunziata. Whereas the claimant made clear at his examination before trial that the buffer did not fall to the floor, his injury having allegedly occurred when he caught and prevented the buffer from falling, Mr. Annunziata testified that the buffer did fall to the floor. In this regard the claimant testified as follows at his examination before trial (defendant’s Exhibit G, pp. 31-32):
Q. So you turn around and get tools, what do you notice next or what happens next?

A. The floor buffer was tipping.

Q. And in which direction was the floor buffer tipping?

A. Away from me.

Q. And did the buffer fall?

A. No, I caught it.

Q. And how did you catch it, what part of the buffer did you grab?

A. I grabbed the handle right about here.
Second, whereas the claimant testified that the stand which was used at the time of the incident resembled the one received in evidence as Exhibit 7, and not the one depicted in the photographs received in evidence as defendant’s Exhibits A through E, both Mr. Annunziata and Sergeant Boyea testified that there was only one stand used at Bare Hill at the time of the incident and it appeared to be the one depicted in the photographic evidence (Exhibits A through E). In this regard there is a clear and apparent difference in the design and construction of the stand depicted in Exhibits A through E and Exhibit 7, which the claimant built from memory. The Court rejects the claimant's contention that Exhibit 7 accurately represents the repair stand in use at Bare Hill in February 2005. The Court credits the testimony of Mr. Annunziata and Sergeant Boyea and concludes that the stand used at Bare Hill at the time of the incident was the one depicted in the photographs and there is nothing in the photographs from which the Court could infer the negligence of the defendant in the construction, design or maintenance of the stand.

Lastly, there are contradictions regarding the date of the accident which, again, affect the claimant’s credibility. The infirmary record (Exhibit 2) is dated February 8, 2005 and indicates that the claimant was injured two days ago.[2] Claimant testified on direct examination that the accident occurred on February 8, 2005, a Tuesday, and that he was seen in the infirmary for the first time two days later (February 10, 2005). On redirect examination claimant testified that if the date he was first seen in the infirmary was on February 8, 2005, as stated in Exhibit 2, then it is possible that his injury occurred on February 6, 2005. As counsel for the defendant pointed out, however, February 6, 2005 was a Sunday and the evidence established the fact that the repair shop was not open on Sundays.

In summary, the claimant failed to establish that the absence of instructions or warnings contributed to the incident, that the repair stand was negligently designed or that the defendant knew or should have known that the repair stand was in need of repair.

Based on the foregoing, the Court finds that the claimant failed to prove his claim by a preponderance of the credible evidence. Accordingly, the claim is dismissed. Any motions not previously decided are hereby denied.

Let judgment be entered accordingly.


April 30, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1].The testimony indicated that the buffer handle was not leaned against a table as depicted in Exhibit E.
[2]. Although the defendant argued at trial that a nurse’s entry in the infirmary record of February 8, 2005 indicated that the claimant was injured two days ago while “working out not sure he pulled a muscle” (Exhibit 2, last page), the Court is unable to decipher the handwriting contained in the exhibit and the defendant did not present the testimony of the nurse who wrote it.