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,
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 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”
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
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
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
. 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
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  (internal quotation
marks and citations omitted); see also Spiratos v County of
Chenango, 28 AD3d 863 ; Maldonado v State of New York, 255 AD2d
630 ). This duty includes “sufficient warnings and instructions for
safe operation of the equipment” (Manganaro v State of New York, 24
AD3d 1003, 1004 ; see also Muhammad v State of New York, 15
AD3d 807 ; Martinez v State of New York, 225 AD2d 877 ;
Kandrach v State of New York, 188 AD2d 910 ). 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 ; Warlikowski v Burger King Corp., 9 AD3d 360
; Theoharis v Pengate Handling Sys. of N.Y., 300 AD2d 884 ).
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 ; Trimarco v Klein, 56 NY2d
98 ; McAllister v Raymond Corp., 36 AD3d 768 ; Ambrosio
v South Huntington Union Free School Dist., 249 AD2d 346 ). 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 ; see also
Basso v Miller, 40 NY2d 233, 241  [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):