New York State Court of Claims

New York State Court of Claims

COURT v. THE STATE OF NEW YORK, #2009-029-064, Claim No. 113113


State found 100% liable for injuries sustained by hospital employee fighting a fire that had been started by negligent conduct of State employees during a welding operation.

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:
MANNBENT & ASSOCIATES, P.C.By: Francis B. Mann, Jr., Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Charles Court seeks damages for a December 29, 2004 incident in which he was injured while attempting to extinguish a fire at Mount Vernon Hospital (MVH), where he was employed as a mechanical engineer in the hospital’s physical plant. The fire was started by a piece of slag from a welding operation that ignited cardboard and paper in a wing of the hospital that was being outfitted by employees of the Department of Correctional Services as a secure wing to house State prisoners.

Claimant testified that he started working at MVH in 1986 as a mechanic and was promoted in 1988 to stationary engineer, the position he currently holds. He is responsible for the facility’s boiler plant, air conditioning, heating and elevators, and his duties include making rounds to check on the facility’s machines and mechanical rooms. In case of a fire at the facility, claimant was supposed to respond to the alarm, assess the situation and attempt to extinguish the fire, unless it was too large to be safely addressed, in which case he was supposed to “step back and let the fire department deal with it.” [1]

Hospital employees were given a card containing two acronyms describing the proper method of addressing a fire. The first – ARCE – refers to Alarm (count the number of bells in order to ascertain the fire’s location and respond to the area), Rescue, Contain and Extinguish. Claimant stated he was always told to use his judgment as to whether a fire was too large to make an effort to extinguish it and that if the flames were taller than he, he would not make an effort to extinguish the fire. The second acronym – PASS – referenced proper fire extinguisher procedure, specifically Pull the pin, Aim the extinguisher, Squeeze the extinguisher and Sweep it back and forth.

Claimant advised that he was making his rounds on the date in question in the hospital’s North Wing when he heard fire alarm bells. He determined that the fire was in the Tower Wing, which is connected to the North Wing. As he approached the Tower Wing, he saw smoke in the hallway.

Although claimant was aware of the State construction in the Tower Wing, he had not been told to stay out of that area and he was not aware that work being done included welding. He had no knowledge of the fire alarm system being taken off line due to the welding, although he was aware that the system was occasionally off line for such reasons, in which case he would be notified. He denied having been notified that the fire alarm in the area would be disabled on the date in question.

Claimant entered the construction area through closed fire doors, saw a person and heavy smoke, made a right turn and “confronted” Ralph Rose, a State worker, holding a fire extinguisher. He also saw a “welding machine” and a fan. Claimant stated he told Rose to turn off the welding machine and the fan, give him the extinguisher and leave the area. Rose told claimant “everything is OK” but claimant saw flames – approximately six inches to one foot high – and did not agree with Rose’s assessment. Rose gave claimant the extinguisher and left the area. Claimant emptied the extinguisher in the direction of the flames, which he stated “went down,” but he still saw glowing embers. He left the area of the fire, got another extinguisher, returned to the fire and found that the flames had risen up higher than before – he estimated three to four feet. He emptied the second extinguisher into the fire, which “knocked down” the flames, but the embers were still glowing and the area was filled with smoke. He went back outside, where he saw Daniel Deighan, his supervisor and the hospital’s head of security, who asked claimant if the fire was out. He responded that it was not, got a third extinguisher and went back inside and emptied it into the fire. Claimant stated he tried to get close to the fire and felt a heavy object as he approached it in the smoke-filled room. He pulled on the object and it moved towards him, like it was on wheels, and then fell on him, trapping his legs underneath. He was able to extricate his legs from under the object and he went back outside to catch his breath. Claimant again approached the fire, this time with a coworker who carried a fourth extinguisher, with which the fire was apparently finally extinguished. Claimant left the area – “choking and tearing” – and the fire department arrived approximately 15 minutes after claimant heard the first fire alarm.

Daniel Deighan, the Director of Engineering at MVH and claimant’s immediate supervisor, started work at MVH in September 2004, three months prior to the subject incident. One of his responsibilities was fire safety, including the training of other employees in the ARCE protocol and how to operate fire extinguishers. Deighan was aware that the State was doing construction work in connection with the prison wing and was aware that the work involved welding. He testified that when welding was being done, he would be asked by Rose to partially disable the building’s fire alarm system – the internal alarms would work but the link to the fire department would be shut down. This was the case on the morning in question.

When Deighan heard the alarm on the date in question he responded to the Tower Wing, started to open the double fire doors but stopped because of the heavy smoke condition on the other side. He called his secretary and told her to call the Fire Department. Deighan stated he saw claimant running with a fire extinguisher and yelled at him to leave the area because it was so smoky and he didn’t want claimant to inhale all the smoke, but claimant did not respond to him. Deighan also saw Rose and Romeo Troncoso, another hospital maintenance worker who was attempting to put out the fire.

After the fire was extinguished, Deighan entered the area and saw a heavy black steel door leaning against the wall, with burned wrapping material underneath it. He testified at his EBT that Rose had told him that it was wrapping material that was around the door that had caught fire. At trial, Deighan conceded that his recollection was limited to what Rose had told him about how the fire started. Deighan also saw a charred area on a wall approximately 2½ feet wide and 4 feet high.

Deighan testified that he trained claimant and other hospital employees in fire safety techniques, including the use of fire extinguishers, but he did not recall if claimant attended any training sessions with him prior to this fire. Claimant testified that he did not receive any training from Deighan prior to the subject incident. Deighan advised that hospital employees were not supposed to fight fires that were larger than a wastebasket, that they should wait for the fire department, which normally responds within five minutes. In this case, Deighan stated that he arrived at the scene within one minute after hearing the alarm and immediately told his secretary to call the fire department, which arrived within five minutes of the call.

Ralph Rose, Jr. became employed by the Corcraft division of DOCS in 2000 as a field training supervisor. Corcraft manufactures goods and furniture for State agencies and Rose described his specialty as “metal fabrication, including welding.” From October through December 2004, he worked on the MVH project. On the date in question he was constructing a secure arsenal area at the entrance to the inmate wing, using an arc welder, a tool that he stated generates smoke as well as sparks that can spread four to five feet from the tool, sometimes farther. Rose stated that normally the heat from these sparks just dissipates and they become burned-out slag, but sometimes the slag retains heat sufficient to ignite paper or other flammable substances. These pieces of slag can roll three to five feet on the floor and can be as hot as 1100 degrees. He described the sparks, the slag and the risk of fire as “a normal part of welding.”

On the date in question, Rose started welding between 8:30 and 9:00 a.m., standing one or two steps up a ladder, welding about five to six feet above the floor. He was aware that the hospital’s maintenance department had shut down the fire alarm system because of the smoke generated by normal welding operations. In addition to his welding work in the arsenal area, he was to install a heavy steel security door that had been delivered, wrapped in paper, to the hospital that morning and was resting on an A-frame cart with wheels. A fellow employee named Ronald Clark was also working on the job. Clark had brought the door up from the loading dock and placed it in the construction area. There was also a 12-inch by 20-inch cardboard box containing accessories and hardware for the door that the two men placed underneath the cart.

As Rose operated the welder, Clark’s job was to be the “fire watch.” At about 10:00 a.m., Rose heard Clark yell “fire” and he stopped welding, got off the ladder and put down the tool. Rose and Clark were the only people in the area. Rose grabbed his jacket, made of canvas with a fleece lining, pulled the box out from under the cart with his foot, put the jacket on the flaming box (he estimated the flames were 10 to 12 inches high) and stomped on it. He stated there was no fire extinguisher in the area but there was one in the hallway about 15 to 20 feet away. According to Rose, he successfully extinguished the flames but the box was still smoking and there were still glowing embers. No alarm went off and he did not call anyone about the fire because as far as he was concerned “it had been extinguished.” He assumed that the fire had started from a piece of slag that had rolled into the cardboard box because it was too far away for a spark to have flown.

As Rose described it, after he had extinguished the fire, but while it was still “smoldering,” claimant entered carrying a fire extinguisher. Rose stated he “gave him a direct order to stop – it was under control – but he proceeded to do as he wished.” Rose and Clark then left the area. He stated he saw no flames after claimant arrived, but the room was “filled with smoke” and the visibility was poor. At some point, he heard a loud noise, but he did not see the door fall on claimant. After the fire department arrived and the area was cleaned up, Rose noticed a charred section of wallpaper he estimated was 12 by 18 inches.

Although Rose stated he started welding at the age of nine in his father’s metal shop, he had never experienced a fire breaking out while he was welding before this incident. He later testified that slag is a normal part of welding and that “fires sometimes happen, that’s why you have a fire watch.”

At trial, Rose testified that the cardboard box was 10 to 12 feet away from where he was welding. At his EBT, he had testified that it was 8 to 10 feet away and at trial he stated that whether it was 8, 10 or 12 feet, “it was a reasonably safe distance.”

Defendant called no witnesses, relying instead on cross-examination of claimant and reading into the record portions of his deposition concerning how high the flames were and what training he had received in firefighting. Defendant’s response to claimant’s allegation that defendant’s welding operation was conducted in a negligent manner was to maintain that it was unreasonable of claimant to keep fighting the fire after emptying three extinguishers, that it was unreasonable “to keep running in commando style trying to put out a fire of unknown dimensions,” and that claimant therefore “assumed all the risks that flowed from such conduct.” In other words, defendant essentially ignored the primary issue of whether its employees were negligent in the conduct of the welding operation and focused almost exclusively on claimant’s conduct.

Notwithstanding the absence of expert testimony concerning proper and reasonable procedures to be followed when welding, the court has little trouble concluding that the fire was the direct and consequent result of the failure of defendant’s employees to exercise reasonable care. Rose’s opinion that the new door that, wrapped with paper and accompanied by a large cardboard box, was placed a “reasonably safe distance” from the risk of fire that is a “normal part of welding” was belied by the evidence and by Rose’s own testimony. Given the testimony as to how far sparks and slag – reaching temperatures in excess of 1,000 degrees – can travel, it was simply not reasonable to place the door (or more precisely, paper and cardboard) 8-12 feet away from the source of the sparks and slag. The textbook definition of negligence is the failure to exercise reasonable care in view of all the circumstances, including the likelihood of injury to others, the seriousness of potential injuries, the burden of avoiding the risk and the foreseeability of injury (Kush v City of Buffalo, 59 NY2d 26; Doyle v State of New York, 271 AD2d 394). In the instant case, the risk of sparks and slag spreading from the welding site was well known. Further, by Rose’s own testimony, the possibility of fire was well known and hence, easily foreseeable. Thus, the placement of combustible material in close proximity to an ignition source was not reasonable. Lastly, the burden of avoiding the risk was ridiculously minimal. It would have been a simple matter to place the wheeled cart and the cardboard box sufficiently far from the welding area so as to eliminate the risk of combustion. Weighing the obvious risk of fire in an occupied hospital against the ease of avoiding the risk, Rose’s failure to ensure that the flammable material was sufficiently removed from the welding site must be held to be a violation of the duty of ordinary and reasonable care which does not require an expert opinion to establish.

It has been held that welding without a “fire watch” is a sufficient factual predicate for a finding of negligence (Murphy v Columbia Univ., 4 AD3d 200). Thus, Clark’s role in the subject events was crucial. Yet, his role at trial was the same as it was at the hospital; i.e., he sat and watched. He was not called to testify. How this fire was allowed to develop to the intensity described at trial remains a mystery given Clark’s presence, his specific responsibility to guard against fire and his knowledge that there was flammable material within striking range of the welding debris.

Not only did Rose and Clark undertake a welding operation with flammable material within range of sparks and slag, they did so in violation of Rule 23-1.25(e) of the State Industrial Code (12 NYCRR § 23-1.25) which requires that whenever welding operations are conducted “in the vicinity of any combustible material,” a fire extinguisher or a pail containing an appropriate fire extinguishing agent shall be “within easy reach” of the workers. It was uncontested that this was not the case here, despite Rose’s knowledge that the fire alarm connection to the fire department had been shut off because of the welding.

Continuing the litany of unsafe and unreasonable conduct, when confronted with a fire Rose elected to try and extinguish it by throwing his flammable canvas and fleece jacket on the flames and stomping on it, an approach that likely did little more than exacerbate the situation. Rose’s opinion that his approach was adequate and that the fire was out before claimant arrived was contradicted by all of the other evidence, in particular the charred wall, the fact that four fire extinguishers were used before the fire was controlled and the smoke conditions described by all of the witnesses.

Upon hearing the alarm, claimant responded to the fire and, with knowledge that there were patients on the same floor, as well as on the floors above and below, did what he perceived to be his job. As Justice Cardozo famously wrote in Wagner v International Ry. Co. (232 NY 176, 180):
“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”
Defendant’s position in this case was that claimant’s actions, particularly his action in returning to the still burning fire after he had emptied three extinguishers into it, were unreasonable because the fire was too large for him to fight and he should have left the area and waited for the fire department to arrive. This is the same argument that was rejected in Breslin v State of New York (189 Misc 547, 549-550), involving injuries received by a resident of a State school while attempting to extinguish a fire caused by negligent disposal of flammable materials. The court wrote:
“It seems to us that the State is in effect saying that the claimant, upon perceiving the danger, should forthwith have run away, leaving the instructor to shift for himself with the blazing barrel as best he might, whatever the consequence to him or to the school building. We do not propose to countenance any such cowardly proposition, and do not believe it to represent the law.”
Under these circumstances,
“the reasonableness of claimant’s actions to prevent injury to others should be judged by what a reasonable person would do under the same exigencies (Johnson v. Hickson, 43 NY2d 906, 908; Hart v. Scribner, 44 AD2d 59, 64). Claimant will not be ‘held to the standard of care for his own safety that reflective and objective after judgment might suggest’ (Rossman v. La Grega, 28 NY2d 300, 305), and ‘[m]ere error of judgment or wrong choice of action is not negligence when one is called upon to act quickly in the face of peril’ (PJI 2:14).”
Dubacs v State of New York
(140 AD2d 968, 969; see also Rivera v New York City Transit Auth., 77 NY2d 322).

While some might argue that claimant was foolhardy to have attempted to extinguish this fire, the court finds that his conduct, viewed against the standard of a reasonable hospital employee under such circumstances, cannot be faulted. It certainly cannot be the basis for finding either that it constituted comparative fault or that it constituted a superceding cause, relieving defendant of responsibility for the consequences of the negligent actions of its employees.

When defendant’s employees undertook to operate a welding tool in close proximity to flammable material which they themselves had placed there, which could easily have been removed from the welding site and, without a fire extinguisher within reach, they created the unreasonable risk of fire and the concomitant risk that someone would be injured fighting the fire. The fact that the flammable material was located below and around a heavy steel door that was balanced on a cart on an angle just added to the risk of injury. The subsequent events – a hospital employee responding to the fire and being injured by the steel door in a room so filled with smoke that he could not see it – were an eminently foreseeable result of this negligent conduct. The court finds that defendant’s negligence was the sole proximate cause of claimant’s injuries.

Accordingly, the Clerk of the Court is directed to enter an interlocutory judgment in claimant’s favor. A trial on damages will be scheduled upon the filing of this decision. In view of this decision, all motions not determined at trial are denied.

October 6, 2009
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the electronically recorded trial proceedings.