New York State Court of Claims

New York State Court of Claims
PERRY v. THE STATE OF NEW YORK, # 2009-015-527, Claim No. 112362


Inmate claim alleging injuries during course of prison work program was dismissed after trial. Claimant, who was injured when a retractable extension cord fell from the ceiling, failed to prove that the defendant either caused the condition or had active or constructive notice thereof.

Case information

UID: 2009-015-527
Claimant short name: PERRY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112362
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Basch & Keegan, LLP
By: Derek Spada, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Stephen Maher, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 17, 2009
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, Dean Ralph Perry, brings this claim for injuries allegedly sustained when a retractable extension cord housing fell and struck him while he was working as an inmate carpenter at Franklin Correctional Facility on August 11, 2005. He also alleges that on December 5, 2005 he cut his finger on a table saw he was using due to a defect in the saw and/or the combination prescription medications he ingested on the morning of the accident. The matter proceeded to a bifurcated trial on the issue of liability on June 8, 2009.

The claimant, Dean Ralph Perry, testified that he has worked as a carpenter for 22 years, including experience in correctional facility workshops during the course of his various incarcerations for burglary and forgery related crimes beginning at the age of 26. He testified that he has been assigned to work in correctional facility woodshops "every time" he has been incarcerated and that, as a result, he was familiar with the use of saws, including table saws, which he stated he had used "[s]everal times. More than I can count" (Tr., p. 9).

Mr. Perry testified that he arrived at Franklin Correctional Facility (Franklin) in Malone, New York in July, 2005 and began working as an inmate carpenter shortly thereafter. Mr. Perry related that he worked in the carpentry shop located in Building 10, also called the work control building, for a total of approximately 40 hours per week. During the course of his work he regularly used a table saw, hand saw and other basic tools. Before he began working at Franklin he was instructed by State employees regarding the proper use of various tools and equipment. A document contained on page four of defendant's Exhibit B is entitled "SAFETY AND INSTRUCTION ACKNOWLEDGEMENT". The document lists various tools and provides spaces for entering the date the inmate was trained on specific tools as well as the the signature of the inmate and the instructor providing the training. As relevant here, the document indicates, and Mr. Perry acknowledges, that he was trained in the use of a table saw on June 1, 2005.

Claimant testified that on August 11, 2005 he arrived at the work control building at approximately 7:15 a.m. He was involved at the time in building temporary handicap access ramps for use in several of the facility housing units. At approximately 9:00 a.m. he was using a retractable extension cord, which was fastened to the ceiling above him, when the extension cord housing fell striking his head and shoulder and knocking him to the ground. Mr. Perry testified that Exhibit D depicts a retractable extension cord housing similar to the one which fell and struck him on August 11, 2005. He described the housing as approximately the size of a dinner plate and three and one-half to four inches in width. According to the claimant he did not pay close attention to the manner in which the extension cord housing unit was attached to the ceiling prior to the date of the above incident. However, during the course of an inventory of the carpentry shop sometime following the incident, he noticed an extension cord housing unit in the back room which was marked as the one which had fallen from the ceiling. Mr. Perry testified that a C-clamp was attached to the housing unit and that he observed an identical C-clamp in a box marked "conduit hanger" during the course of the inventory (Tr., p. 17). He identified Exhibit C as substantially similar to the items he observed labeled as conduit hangers during the course of the carpentry shop inventory. Claimant testified that the housing was attached to the C-clamp and that the C-clamp was used to mount the unit to a web beam in the ceiling. He estimated the ceiling of the work control building to be approximately 12 feet in height and testified that the retractable extension cord housing weighed between 12 and 15 pounds.

Mr. Perry testified that there were three ceiling- mounted extension cord housing units in the work control building at Franklin in August, 2005. While the housing unit that fell on the claimant was attached to a web beam using the C-clamp, the other two housing units, one in the plumbing area and another in the carpentry shop, were permanently attached to the web beams using a nut and bolt.

Claimant testified that he "blacked out for a couple of seconds" after being struck by the extension cord housing unit (Tr., p. 23). Upon regaining consciousness he reported the incident to a correction officer who sent him to the infirmary where he was treated, but was not provided medications at that time. At some point thereafter he was prescribed 800 mg of Motrin to be taken three times daily and Ultram, 100 mg twice daily. Ultram could not be kept by the claimant in his housing unit and he was required to report to the infirmary twice daily to receive administrations of the drug. According to Mr. Perry, he was not provided any literature or counseling regarding either Motrin or Ultram, or their possible side effects. He testified he was also taking Robaxin at the time for restless leg syndrome and the bottle of Robaxin indicated that use of the medication could cause drowsiness. Between the time he began taking Ultram and the date he returned to work at the carpentry shop on December 5, 2005 the claimant experienced no side effects from the medications. He testified that he was instructed by the doctor who prescribed the medications to take all three together in the morning to address the pain in his shoulder. He had not, however, taken all three medications at the same time prior to his return to work at the carpentry shop on December 5, 2005.

The claimant testified that he had been taking Robaxin for a period of six months to one year prior to December 5, 2005. In addition, he had been taking Ultram for "a couple months" prior to that date (Tr., p. 46).

At approximately 6:35 a.m. on December 5, 2005, the claimant took Robaxin, Motrin and Ultram and returned to the carpentry shop for the first time since the incident of August 11, 2005. He was assigned to continue working on the construction of temporary handicap access ramps and in this regard was using a table saw to remove approximately 1/16 of an inch from the wide side of a two-by-four piece of wood. He testified that Exhibit F depicts the table saw he was using on December 5, 2005 and that the saw was equipped with an "aftermarket guard" similar or identical to that depicted in Exhibits F, G and H (Tr., p. 28). Mr. Perry testified that he had complained to several civilian supervisors in the work control building as well as to Correction Officer Conway prior to December 5, 2005 regarding a "hand crank" used to adjust the guard.

Claimant testified that he used his left hand to hold the edge of the two-by-four against the guiderail and began moving the wood through the blade. He then used a push stick (Exhibit L) to continue pushing the wood through the saw blade. He described what happened next as follows:

"I started to feel a little faint, so I wanted to back it off and stop. So as - - I felt like I was going to faint, basically, I guess, and felt a little dizzy, so I backed the wood up a little bit so the blade was free spinning and took my right hand and went to hit the off button, and then it sounded like just a bang, and then the next thing I knew my finger was bleeding all over the place" (Tr., pp. 36 - 37).

According to Mr. Perry the two-by-four kicked back and struck his left middle finger causing a significant cut. He testified that his hand did not touch the blade and was located approximately four to six inches behind the blade at the time of his injury. He attributed the incident, and his resulting injuries, to the failure of the guard to fully cover the blade. He testified as follows:

"A. I had a problem with getting the guard down. As you can see in, I don't know which exhibit this is, but this guide is pushed back away from the actual board, but if you bring it up to where I had to make the cut, this would sit on top. The guard would actually sit on top of the guiderail to your right instead of coming down over the board like it should" (Tr. pp. 32-33).

* * *

"The edge of the guard goes down about an inch from the front flap that the wood goes through, but the edge of the guard was sitting on the guide so it would - about an inch, I would say, higher than the board itself and the anti-kickback is a piece of metal with three teeth on it, it kicks - if the board kicks back towards you, those teeth grab it and stop. They weren't touching the board" (Tr., p. 33).

On cross-examination the claimant admitted that he was incarcerated in State prison from 1996 to 1998 on a forgery charge. He was incarcerated from 1999 to 2002 on an attempted burglary charge, from 2004 to 2006 on a forgery charge and again from 2007 through 2008 on an additional forgery charge. He had used the retractable extension cord which struck him on August 11, 2005 more than 100 times prior to the date of the incident. He did not report any concerns regarding the extension cord housing prior to August 11, 2005 nor did he notice any problems with the device prior to that date. He agreed that he was not using the extension cord and did not observe the extension cord housing detatch from the ceiling at the time it fell and struck him on the morning of August 11, 2005. He was not pulling on the extension cord nor was another inmate Mr. Perry claims was a witness to the incident. He testified that he observed the extension cord unit on the floor as he stood up following the incident but did not notice "what it was clamped with" at that time (Tr., p. 45). He did not suffer any fractures as a result of the incident and a CT scan taken was negative. He never complained to medical personnel at Franklin regarding side effects of either Robaxin or Ultram . Nor did he complain regarding the effects of Motrin between August 11, 2005 and December 5, 2005. Although he complained to a Mr. Snyder regarding the hand cranks with which the table saw was equipped, he did not complain regarding the blade guard prior to the date he was injured. He also complained to an individual he identified as Mr. Hazen regarding the hand crank, although neither complaint was reduced to writing. Mr. Perry confirmed that he had used the same table saw in the carpentry shop "probably around 100" times prior to December 5, 2005 (Tr., p. 51). He acknowledged that he had been trained in the proper use of the table saw as memorialized on the safety and instruction acknowledgement form on page four of Exhibit B. He also acknowledged that he was not certain how his finger was injured. When asked "as we sit here today, do you know what cut your finger?" he responded "No, you know, the pain was so much right after it happened, that maybe that blocked it out, or I'm not exactly sure" (Tr., p. 52). When asked whether his finger came in contact with the saw blade claimant responded "I don't believe so because I didn't have my hand that close to the saw blade" (Tr., p. 53). Finally, the claimant reiterated his prior testimony on direct examination that he was not wearing gloves at the time of the incident.

The claimant rested his case at the conclusion of Mr. Perry's testimony and the defendant moved to dismiss for failure to establish a prima facie case. The Court reserved on the motion and the defendant called Claude Schneider to the stand.

Mr. Schneider testified that for the past seven years he has been employed as a maintenance supervisor at Franklin Correctional Facility. Mr. Schneider works in Building 10 at Franklin (the work control building) and is responsible for assigning work to both inmates and staff. He described defendant's Exhibit A as a fair and accurate diagram of the physical layout of Building 10. Building 10 houses a single table saw and, in 2005, was equipped with two retractable extension cord units in the carpentry area, two more in the welding shop and a single unit in the laundry shop. Each of the units is attached to fabricated steel rafters in the ceiling of the building.

Mr. Schneider testified that he recognized the claimant, Dean Perry, from the time he worked as an inmate carpenter at Franklin. He identified the safety and instruction acknowledgement form contained within Exhibit B as a document, signed by the claimant, confirming his receipt of safety instruction training with regard to various types of tools including a table saw. Generally, table saw safety training includes the use of safety guards, safety glasses and how to adjust and lock the saw's guiderail in place.

The witness identified Exhibit D as a photograph depicting one of the two retractable power cord units located in the carpentry shop of the Franklin work control building. He stated that the unit depicted in Exhibit D is attached to a steel rafter using a "C-clamp" which he testified is used throughout Building 10 stating "[w]e have all our lights attached with this type of clamps [sic], all our power supplies" (Tr., p. 71). Mr. Schneider identified Exhibit C as similar to the type of C-clamp used to attach lights and power supplies to the building's steel beams. The C-clamp is generally applied to the flat area at the bottom of the rafter and tightened using a bolt.

The witness testified that he was informed Mr. Perry had been struck by a retractable extension cord unit which had fallen from the ceiling by a correction officer who was on duty at the time of the incident. Following the filing of a grievance regarding the incident by Mr. Perry, Mr. Schneider conducted an investigation of the matter and prepared a report received as Exhibit E. He stated that although the report is undated, he believes it was prepared sometime during the week following the filing of the claimant's grievance on September 6, 2005 (see claimant's Exhibit 1). The report reads, in full, as follows:

"The retractable extension cord in question has been in place for several years. This cord was used daily, primarily by inmate carpenters as well as employees.

To my knowledge, this retractable cord has not been moved or worked on since its original installation.

Upon inspection of this unit, I found no broken parts. This unit was attached to the steel rafters with a cast type C-clamp. This type of C-clamp is commonly used to attach equipment to steel beams or rafters.

At this time, I can only say that none of the workers, inmates or employees, noticed the clamp coming loose. Since this unit had been in place for years, I can't find any measures that would have prevented this accident".

As indicated in the report, Mr. Schneider did not find any broken parts or mechanical failures during his investigation. He testified the retractable extension cord units were mounted to the ceiling beams prior to the date he began working at Franklin in November, 2002 and that he never received complaints from inmates or staff regarding the manner in which the extension cord units were secured to the beam. Neither he nor his staff had noticed the C-clamp loosening prior to the date of the incident.

Mr. Schneider testified that facility rules prohibit modifying any part of the building and prohibit welding any item or piece of equipment to the ceiling beams. According to the witness, welding items to a beam could potentially cause the beam to weaken. He also stated "[w]e normally do not drill any beams or rafters" (Tr., p. 76). He estimated the retractable extension cord unit weighed between 10 and 12 pounds.

The witness testified that two extension cord units were hung from the ceiling in the Building 10 carpentry area. The unit which struck the claimant was attached to the rafter using a C-clamp while "[t]he other one is actually bolted to the rafter. It went through the space that is in between the angle iron and the plate on the bottom, the plate on top, and then with the U-bolt it is bolted down" (Tr., p. 77).

Mr. Schneider testified that he was approximately 25 feet from the table saw at the time the claimant was injured. He identified Exhibit F as a photograph accurately depicting the table saw involved in the December 5, 2005 incident. The table saw is operated by an individual standing facing the saw in the area depicted in the foreground of the photograph. The saw is equipped with a clear plastic guard as depicted in Exhibit F and Exhibit G. An operator of the saw would use a push stick such as the one received in evidence as Exhibit L to move the wood through the saw blade. He testified that there are usually two or three push sticks positioned around the table saw and that it is preferable to use two push sticks when cutting wood to keep both of the operator's hands away from the blade. Mr. Schneider could not recall any specific complaints from Mr. Perry regarding the table saw prior to December 5, 2005 nor did he recall the claimant complaining of dizziness, drowsiness or blurred vision on the date of the incident.

On cross-examination the witness testified that the retractable extension cord unit which struck the claimant was secured to the overhead beam by a single C-clamp. The unit was not formally inspected or adjusted between the time he became employed at Franklin and the date of the claimant's accident. Inmates using power tools would pull down on the extension cord to connect a power tool to the power supply. When finished the extension cord would retract until a ball on the cord stopped the cord from retracting completely into the unit. Mr. Schneider agreed that a certain amount of stress is placed on the unit each time the cord is pulled down to be used and that the ball comes into contact with the unit each time the cord is retracted.

The witness testified that the second extension cord unit located within the carpentry shop is fastened to the overhead beam using a bolt and two metal plates. He could not identify a reason why the unit which struck the claimant was attached to the beam using only a C-clamp, and not a U-bolt as was the other unit.

Mr. Schneider testified that he was present in the carpentry shop on December 5, 2005. Reviewing Exhibit I, he testified that the saw guard depicted in the photograph was in the "up position" when he first observed it (Tr., p. 96). Exhibit G depicts the guard in the "down position" (Tr., p. 96). He agreed that the guard depicted in the photographs is an aftermarket part not produced by the original manufacturer. He stated that the guard depicted in Exhibits G and I "was installed right about the time when I was hired at Franklin Correctional Facility" (Tr., p. 97). He described the way in which the saw guard operates as follows:

"Once you take it out of the lock position, when it's up, it floats, it's spring loaded, and it will go to as far down as it allows it. It will go all the way to the table, and it lifts as a piece goes under it, so it's moving freely" (Tr., pp. 97 - 98).

On redirect examination the witness stated that he was not aware of the date the photograph received as Exhibit D was taken. He stated that the saw guard depicted in Exhibit G is adjustable "forward, backwards and sideways," which allows the guard to be lowered so that the bottom portion of the guard is in contact with the cutting table. On re-cross-examination the following discussion took place:

"Q. About that Exhibit G, is the guard as far down as it can go when cutting a two-by-four on the side like that?

A. The way it is showing right now, seeing where the blade is, the guard is sitting on the two-by-four, but it will go all the way down to the table.

Q. But the two-by-four is preventing it from going down any further, is that right?

A. That is correct" (Tr., p. 99).

The defendant next called Brett W. Hazen who testified that he has been employed as a general mechanic at Franklin Correctional Facility for the past five years. He described his duties as "fixing whatever needs to be fixed" (Tr., p. 101).

Mr. Hazen testified that he is familiar with the claimant and was present in the work control building at the time he was injured on December 5, 2005. At the time of the claimant's accident Mr. Hazen was 12 to 15 feet away from the table saw, walking from the building entryway to the tool cage located in the rear of the building. He heard the claimant exclaim "ouch" and immediately turned to observe Mr. Perry "standing beside the saw instead of in back of it where you're supposed to be" (Tr., p. 103). Instead of being positioned in the area depicted in the foreground of Exhibit L, Mr. Hazen observed the claimant positioned in the area depicted in the foreground of Exhibit H. The witness escorted Mr. Perry to the infirmary following the incident. From the time of the injury to their arrival at the infirmary Mr. Perry did not mention feeling faint, dizzy, or lightheaded. Claimant was able to walk to the infirmary under his own power and did not appear faint or dizzy to the witness.

On cross-examination the witness reviewed Exhibit G, a photograph depicting the saw guard, a two-by-four, and a second two-by-four, which the witness referred to as a "fence" which is attached to a metal railing (Tr., p. 110). According to Mr. Hazen, the position of the fence can be adjusted by lifting the saw guard up and sliding the fence left or right. The wood to be cut would then be inserted and the saw guard would be moved to a down or closed position. When asked whether, once the fence is adjusted, the saw guard could be lowered "when the two-by-four and fence are both moved over about an inch and a half" he responded "[y]es, it looks that way from here" (Tr., p. 112).

On redirect examination the witness testified that the start and stop switches of the subject table saw are clearly depicted in the lower right-hand corner of Exhibit F.

The defendant called Lori Ann Montroy to the stand. Ms. Montroy testified that in 2005 she was employed as a nurse administrator at the Franklin Correctional Facility. Ms. Montroy treated the claimant's injury when he appeared at the Franklin infirmary on December 5, 2005. She testified that after treating the claimant she prepared an inmate injury report, received in evidence as Exhibit K. She could not recall that the claimant at any time indicated he was drowsy, dizzy or suffering from the effects of medication. Had that information been provided by the claimant it would have been noted in the inmate injury report (Exhibit K).

On cross-examination Ms. Montroy did not recall whether she inquired as to any medications the claimant may have taken prior to operating the table saw on December 5, 2005.

"As a landowner, the State owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [1986], lv denied 68 NY2d 611 [1986] [citations omitted]; see also Preston v State of New York, 59 NY2d 997, 998 [1983]; Gonzalez v State of New York, 60 AD3d 1193 [2009]; Colangione v State of New York, 187 AD2d 844 [1992]; Rosado v State of New York, 139 AD2d 851 [1988]). This duty obligates the State to "take every reasonable precaution to protect those who are in its institutions", including prison inmates (Bowers v State of New York, 241 AD2d 760, 760 [1997]; see also Heliodore v State of New York, 305 AD2d 708 [2003]; Melendez v State of New York, 283 AD2d 729 [2001], appeal dismissed 97 NY2d 649 [2001]; Condon v State of New York, 193 AD2d 874 [1993]; Rosado v State of New York, 139 AD2d 851 [1988]). The State is not, however, an insurer against any injury which might occur on its premises and negligence generally will not be inferred from the mere happening of an accident (Bernard v State of New York, 34 AD3d 1065, 1067 [2006]; Melendez v State of New York, 283 AD2d at 729; Bowers v State of New York, 241 AD2d at 760). Rather, the duty to maintain property is defined by reference to the relevant circumstances of each case "including the likelihood and seriousness of a potential injury and the burden of avoiding such risk" (Covington v State of New York, 54 AD3d 1137, 1138 [2008] [citations omitted]; see also Basso v Miller, 40 NY2d 233, 241 [1976]). "In premises liability actions alleging an injury caused by a defective condition, the plaintiff must show that the landowner either created the defective condition, or had actual or constructive notice thereof for such a period of time that, in the exercise of reasonable care, it should have corrected it" (Baez v Jovin III, LLC, 41 AD3d 751, 752 [2007]; Seaman v State of New York, 45 AD3d 1126 [2007]; Olsen v Martin, 32 AD3d 625 [2006]; Heliodore v State of New York, 305 AD2d 708 [2003]). Here, claimant failed to establish by a preponderance of the credible evidence that the defendant either created a defective condition or had actual or constructive notice thereof.

The claimant failed to establish at trial that the defendant created a dangerous condition through its use of a C-clamp to secure the retractable extension cord assembly to the ceiling of Building 10. No expert testimony was offered to establish that use of a C-clamp to secure the assembly to the ceiling beam above the table saw was inadequate or otherwise inappropriate. In addition, while "proof of customary practice . . . coupled with a showing that it was ignored and that this departure was a proximate cause of the accident . . . may serve to establish liability" (Trimarco v Klein, 56 NY2d 98, 106 [1982]; Munzer v Town of Hempstead, 8 AD3d 247 [2004]; Phillips v McClellan St. Assoc., 262 AD2d 748 [1999]; French v Ehrenfeld, 180 AD2d 895 [1992]; Miller v Long Is. R.R., 212 AD2d 515 [1995]), no such proof was offered in this case. Absent evidence of a generally accepted standard or practice in the industry, no factual basis exists for concluding that the use of a C-clamp was negligent (see generally Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 336-337 [1986]; Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346 [1988]). Claimant's testimony that other retractable extension cord housing units were permanently attached to the web beams using a nut and bolt is insufficient, standing alone, to establish a departure from a generally accepted standard and practice in the industry. For example, in Guldy v Pyramid Corp., 222 AD2d 815 [1995] the Appellate Division, Third Department, held that an expert's opinion that the defendant deviated from industry custom and practice in failing to paint a sidewalk curb, which was based, in part, on the practice of three area malls, was insufficient to establish a generally accepted industry practice. Here, neither expert testimony nor evidence regarding permissible or customary usage of a C-clamp was offered at trial. The absence of evidence establishing that the use of a C-clamp under the existing circumstances was a departure from generally accepted industry practices or usage is fatal to claimant's claim that the defendant created an unreasonably dangerous condition. In addition, claimant also failed to prove notice to the defendant. In fact, the only proof received at trial on the issue of notice was the testimony of Claude Schneider in which he states the extension cord housing unit which injured the claimant had been mounted to the steel beam prior to his arrival at Franklin in November, 2002 and that he had received no complaints regarding the apparatus prior to the occurrence of the incident on August 11, 2005.

Nor does the invocation of the doctrine of res ipsa loquitur avail the claimant under the circumstances of this case.(1) The doctrine recognizes "that some accidents by their very nature would ordinarily not happen without negligence" and permits, but does not require, an inference of negligence based solely on the happening of an accident (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]). Res ipsa loquitur may be invoked only when the claimant establishes the following elements: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff " (67 NY2d at 226). Here, the requirement that the injury-causing instrumentality be within the exclusive control of the defendant is lacking. "The purpose [of the exclusivity requirement] is simply to eliminate within reason all explanations for the injury other than the defendant's negligence . . . The requirement does not mean that 'the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant's door' " (67 NY2d at 227 [citation omitted]). Thus, in Dermatossian, where the plaintiff struck his head on a defective grab handle as he stood up to leave defendant's bus, the Court of Appeals held that the plaintiff failed to establish "sufficient exclusivity to fairly rule out the chance that the defect in the handle was caused by some agency other than defendant's negligence. The proof did not adequately exclude the chance that the handle had been damaged by one or more of defendant's passengers who were invited to use it" (67 NY2d at 228).

In Ebanks v New York City Tr. Auth. (70 NY2d 621 [1987]) plaintiff was allegedly injured as the result of an improperly maintained escalator when his foot became caught in a two-inch gap between the escalator step and sidewall. While the plaintiff's expert opined that the accident would not have occurred if the escalator was properly maintained, a maintenance supervisor for the defendant testified that the gap could not occur unless " 'somebody got something caught in it like a hand truck' " (70 NY2d at 622). In rejecting the application of res ipsa loquitur, the Court stated:

"The proof did not adequately refute the possibility that the escalator--located in a subway station used by approximately 10,000 persons weekly--had been damaged by a member of the public either through an act of vandalism or, as defendant's witness suggested, by permitting an object such as a hand truck to become caught in the space between the step and sidewall. Plaintiff did not establish that the likelihood of such occurrences was so reduced 'that the greater probability lies at defendant's door' "(70 NY2d at 622, quoting Dermatossian, 67 NY2d at 227 [internal quotation marks and citation omitted).

Although the proof need not conclusively eliminate every alternative explanation for an accident, it must afford a rational basis for concluding that " 'it is more likely than not' " that the injury was caused by defendant's negligence (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997], quoting Restatement [Second] of Torts 328 D, comment e). Examples of cases in which res ipsa loquitur was held inapplicable include Parris v Port of N.Y. Auth. (47 AD3d 460 [2008]) where the plaintiff alleged that the escalator he was riding violently "jerked" and "pulled", causing him to fall backward and strike his head; Park v Bay Crane, Inc. (49 AD3d 617 [2008]) where a tire which plaintiff was mounting on a crane exploded, causing injury; Marszalkiewicz v Waterside Plaza, LLC (35 AD3d 176 [2006]) where defective automatic sliding doors in the defendant's building closed on the plaintiff's hand, causing her to fall; Rondeau v Georgia Pac. Corp. (29 AD3d 1066 [2006]) where plaintiff was injured by plywood which fell from the freight car he was unloading; De Sanctis v Montgomery El. Co. (304 AD2d 936 [2003]) where an elevator malfunctioned due, allegedly, to the safe edge which was accessible to the public; Savio v State of New York (268 AD2d 907 [2000], lv denied 95 NY2d 758 [2000]) where claimant was injured while cleaning a soap die press; Pursel v State of New York (226 AD2d 872 [1996]) where a door released from its latched overhead position, striking claimant on the head; and Davis v Vantage Homes (146 AD2d 879 [1989]) where plaintiff suffered injury when stairs to a mobile home on a jobsite collapsed. In all of these cases it was held that the exclusivity requirement was critically lacking because the likelihood of causes other than the defendant's negligence was not so reduced that the "greater probability lies at defendant's door" (see Rondeau v Georgia Pac. Corp., 29 AD3d at 1069; cf. Norton v Albany County Airport Auth., 52 AD3d 871 [2008] [injury-causing mechanism on automatic sliding door was relatively inaccessible to the public, question of fact existed regarding whether the exclusive control element of the res ipsa loquitur doctrine was satisfied]). Here, like the facts in Dermatossian (supra), Ebanks (supra) and the aforementioned Appellate Division cases, claimant has failed to establish that it was more likely than not that the negligence of the defendant was the cause of the accident. Other inmates as well as the claimant used the extension cord assembly daily and it appears equally likely that the conduct of others may have loosened the C-clamp causing the extension cord housing to fall. In these circumstances application of the doctrine of res ipsa loquitur is inappropriate.

Regarding the second incident in which the claimant alleges he was injured while operating the table saw, "It is well settled that '[d]efendant's correctional authorities owe a duty to provide inmates engaged in work programs with reasonably safe equipment and sufficient warnings and instructions for safe operation of the equipment' (Manganaro v State of New York, 24 AD3d 1003, 1004 [2005]; see Bernard v State of New York, 34 AD3d 1065, 1067 [2006]; Maldonado v State of New York, 255 AD2d 630, 631 [1998]). Nevertheless, 'defendant is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident' (Muhammad v State of New York, 15 AD3d 807, 808 [2005] [internal quotation marks and citations omitted]; see Bernard v State of New York, 34 AD3d at 1067]" (Rosa v State of New York, 63 AD3d 1383, 1384). In this regard, where an inmate alleges he was injured when "the spring-loaded safety guard did not return and cover the blade surface" of a saw he was using it must be shown that the State had notice of the allegedly defective condition (Epps v State of New York, 151 AD2d 545 [1989]).

Here, in the first instance, claimant could not specifically identify the mechanism of injury. He testified that his hand did not come in contact with the saw blade and the Court is unable to discern from the proof presented how the two-by-four claimant was cutting at the time he was injured could have "kicked back", as posited by the claimant, when in his own testimony he stated that he "backed the wood up a little bit so the blade was free spinning" (Tr. p. 36).

Claimant also failed to establish either that the blade guard was defective or that, if it was, the defendant had actual or constructive notice of the defect. There was no expert testimony regarding the allegedly defective guard or the role any such defect was likely to have played in allowing the two-by-four to kick back causing injury as the claimant alleged. As to the issue of notice, the only proof received at trial was the claimant's testimony that he complained to Messrs. Schneider and Hazen concerning the hand cranks with which the table saw was equipped. The complaints were not reduced to writing, did not directly pertain to the blade guard and Mr. Schneider could not recall claimant having made any specific complaints regarding the table saw prior to the date he was injured. In the Court's view the proof at trial was wholly insufficient to establish either the existence of a defect or that the State had actual or constructive notice.

To the extent claimant alleges his injuries were attributable to the effects of medications provided by medical personnel employed by the defendant, the lack of expert testimony is fatal. Absent expert medical proof, there is no basis for concluding that the dizziness claimant allegedly experienced while using the table saw was a side effect of the simultaneous ingestion of Robaxin, Ultram and Motrin or that the directions provided regarding simultaneous use of the medications were medically inappropriate (see generally Spensieri v Lasky 94 NY2d 231 [1999]; Hytko v Hennessey, 62 AD3d 1081 [2009]).

In summary, claimant failed to establish by a preponderance of the credible evidence that the defendant created an unreasonably dangerous condition by using a C-clamp to affix the extension cord assembly unit which fell and struck the claimant to the ceiling of Building 10. In addition, no evidence was adduced at trial to establish either actual or constructive notice of a defect. As a result, the claim for injuries sustained on August 11, 2005 must be dismissed. Claimant also failed to establish by a preponderance of the credible evidence that the table saw he was using on December 5, 2005 was defective and the defendant had actual or constructive notice of the defect. Finally, claimant failed to prove that medical personnel erred in prescribing the medications he ingested on the morning of the incident and that any such error caused or contributed to the injuries he sustained.

For the foregoing reasons, the claim is dismissed. Any and all motions on which the Court may have previously reserved decision or which were not determined are denied.

Let judgment be entered accordingly.

December 17, 2009

Saratoga Springs, New York


Judge of the Court of Claims

1. Although the claimant did not specifically plead res ipsa loquitur in either his claim or bills of particulars, it is well settled that the failure to specifically plead the doctrine does not preclude its application in appropriate circumstances (Olson v 625 Ocean Co., 40 AD3d 828, 828 [2007]; Ladd v Hudson Val. Ambulance Serv., 142 AD2d 17 [1988]).