New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2009-030-017, Claim No. 111011


Synopsis


Claim dismissed. Claimant failed to establish by preponderance of the evidence that unsafe working conditions were present in the Green Haven upholstery shop, that an accident occurred, and that he was injured as a result of such conditions.

Case Information

UID:
2009-030-017
Claimant(s):
CARLOS PEREZ
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
PEREZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111011
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ANDREW F. PLASSE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 22, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Carlos Perez alleges in his claim that defendant’s agents at Green Haven Correctional Facility [Green Haven] negligently allowed unsafe work conditions to exist in the upholstery shop where the inmate claimant worked on September 19, 2003. More specifically, it is alleged that on that date, outside contractors were repairing pipes by welding them into the ceiling, and allowed dangerous debris to fly from the steel pipes and into claimant’s eye causing him injury. No safety equipment had been provided to inmate workers, including safety glasses. Trial on the issue of the State’s liability was held on February 18, 2009, and submitted for decision on June 8, 2009.


Mr. Perez testified that on September 19, 2003 he had been working for five months at his assigned job as “a cutter”[2] in upholstery shop 2 of the Corcraft Industry building at Green Haven cutting foam material. The second floor room where he worked was an open area containing tables and fifteen (15) sewing machines, with an aisle formed down the center by the placement of the tables. The room had windows all around the shop toward the ceiling, kept open for ventilation. An officer’s podium was at the center of the room. The office for the civilian supervisor, Giselle Wilser, was at the south end of the shop. Claimant’s work table was at the northeast end of the shop approximately 40 feet away from the civilian’s office. Mr. Perez said he worked Monday through Friday from 7:30 a.m. to 2:30 p.m.

For a period of two to three weeks prior to September 19, 2003, claimant observed two (2) construction workers coming into the shop to do work during the daytime with the upholstery shop inmates. One worker was “a tall Indian guy and [the other was] an Irish-looking fellow, you know, short.” [T-13-14]. He had observed them make a hole in the floor near the supervisor’s office, and bring pipes from the basement, up to the ceiling. The pipes were then hung above the middle aisle created by the placement of the work tables. They used a big welding machine and a welding rod with a holder. One man held the ladder, while the other went up the ladder and did the welding.

Mr. Perez claimed that one (1) week prior to the date of his accident, he spoke with George Smith, the Superintendent of Industry, “right in the shop” during the morning hours, because [the Superintendent] usually walk[ed] around the morning hours.” [T-15]. Other inmates, too, spoke to the Superintendent at the time, including Albert Hernandez, Luciano, and Comacho, all complaining about the welding going on in the shop and asking that they be supplied with goggles because “we were all . . . concerned about this situation.” [T-16]. Mr. Perez said that Superintendent Smith indicated that he would not have the inmates returned to their housing blocks while the work was being done, that the work “had to be done during the daytime,” and would not supply goggles or screens or other protective equipment despite the inmates’ requests. [T-17]. There is no mention of this prior complaint to the State about working conditions in the filed claim [see Claim No. 111011], nor was any written documentation or other evidence of prior complaints presented.

During the morning hours of September 19, 2003, claimant was folding some of the material he was working on. The construction workers were working about four feet away from him. The “Indian” was holding the ladder, while the shorter man was welding, utilizing a long metal welding pole. They were installing metal steam pipes in the ceiling, right in the middle of the shop. The pipes were “about two feet in diameter, about twelve feet long.” [T-20]. As part of the welding process, sparks would fly out. He said that the construction worker doing the welding - the “Irishman” - was wearing the protective mask and goggles that the inmates had been asking for, as well as an apron. The other worker - the “Indian” - holding the ladder had goggles, but did not have the metal mask. No screens or cones cordoned off the area or section where they were working. As claimant worked at his station, a particle flew into his eye. He exclaimed in pain to the “Indian”, who suggested he put some water in his eyes, and assured him he would be all right. Mr. Perez then told Ms. Wilser that a piece of metal had fallen in his eye, and was told again to flush water in the eye, to keep doing it, and that he should be fine by morning. He then went to his cell without seeking medical attention, claiming that Ms. Wilser had told him that he should wait.

When Mr. Perez woke the following morning, he said his eye was red and swollen and he had difficulty seeing. He said he was burned. He went to the Green Haven medical facility, and Dr. Rodas tried to flush his eyes to remove “the little piece of thing, metal that was in my eye and he couldn’t do it . . . after four [or] five attempts . . . [T]hat same day they sent me to the emergency room at St. Francis Hospital.” [T-22].

On cross-examination, claimant reiterated that the ladder itself was approximately four feet away, and that the individual doing the welding was partially up the ladder - about five to five and one-half feet above (and away ) - attaching hangers to the new steampipes. He repeated that he asked Ms. Wilser to go to the medical department, but she told him to keep flushing his eye. He added that she kept him down on the first floor with another inmate named Angel until almost the end of his tour, at 2:15 p.m. or so, when he walked back to his housing block. He next asked his housing block officer, Officer Murphy, if he could go to the medical unit, but was told he should go to morning sick call.

Mr. Perez sought and received medical treatment the next day, according to the ambulatory health record [AHR] entry for September 20, 2003 [Exhibits B and C]. As he testified, the AHR confirms the fact that facility medical personnel could not extract the foreign material in his right eye and he was referred to an outside hospital. [Id.]. When confronted with the notations by facility personnel to the effect that he had complained to them about something getting in his eye “last p.m.” [see Exhibits B and C], he explained that he told medical personnel that he was injured “in industry in the morning . . .”, and could not control what facility personnel chose to write in the AHR. [T-28]. Mr. Perez said: “[T]his is the writing of the doctor, not my writing.” [Ibid.]. Similarly, the notation by personnel at the outside hospital, that a “dirt [or dust, the writing is not clear] particle blown by wind into eye” was also explained by Mr. Perez as not being his writing. [Exhibits B and C]. Mr. Perez repeated that he told them what happened, and said that if the doctor did not write down anything about metal, it would be “. . . because he didn’t know what it was. They couldn’t flush it out. So, . . . this is just . . . what he wrote . . . after I told him that something fell in my eye.” [T-31]. It is noted that there is no indication that claimant suffered any burns in the medical records submitted.

After his accident, he said he was given some time off. By the time he came back, the work in the shop was finished - indeed, the last part of what appeared to have been an industry-wide project had been in the upholstery area where he was working. Asked what kind of safety equipment he was given in his assigned job as a cutter generally, claimant said they were supposed to be given “little glasses,” but then said: “I don’t even know what the lady is supposed to give us. It’s in the directive but we never . . . got it from her so I don’t know . . . what I was entitled to have or what or not to have.” [T-65].

Anthony J. Manzi, employed by C.B. Strain and Son [CB Strain], plumbing and heating contractors, testified concerning his project management of the job at Green Haven in September 2003. The overall project had been to install a dust collection system for the industrial area, with associated duct work, as well as an air handling unit, and steam and condensate piping through the building to the air handler. In the upholstery shop, he confirmed that they ran steam and condensate piping, installing it slightly suspended below the ceiling down the middle aisle created by the rows of work tables. This aisle was approximately ten (10) feet wide.

The contract with the State of New York had been of long standing, although he himself did not become involved until the spring of 2003. As part of his job, he would visit Green Haven at least once a week, and more often a few times a week. The two workers working on the pipes in the upholstery shop were William Pitts and Robert Keeley, who were “the welding crew.” The overall contract was supervised by New York State Office of General Services [OGS] personnel as well, who had a trailer outside the prison wall and visited the work area regularly. His workers were escorted everywhere by correction personnel.

Hanging the pipe was a two-step process. First, it was lifted into the hangers drilled into the ceiling by the workers. The pipes were then welded together using an electric arc welding machine. Arc welding, he explained, is a technique for “joining two pieces of metal with a very high voltage electric current which actually creates an arc between the welding machine and the metal that you’re joining together and it liquefies the metal and makes them one.” [T-86].

Mr. Manzi confirmed that there was a welding machine at the upholstery shop, and that of the two men, Mr. Keeley was the welder. As the welder, Mr. Keeley would usually wear a face shield, he would probably wear gloves and a flame-retardant jacket. Generally, welding screens and blankets would be placed around where they were working to protect other people. They would work inside the blankets and shields. At Green Haven, six-foot-square flame-retardant blankets were hung down from the ceiling to contain as much of the work as they could. Welding shields or screens would be placed on the ground where they were working, to keep people out of the area and to “[k]eep people from seeing the sparks.” [T-81]. The welding shields were approximately six-foot-square as well. Mr. Manzi noted that welding produces high amounts of concentrated ultraviolet light which could burn the retina and cause eye damage. Between the blankets suspended from the ceiling, and the welding shields, “nothing from [the material being welded] would go through, the blankets are very tough . . . ” [T-82].

The welder himself would position the blankets and shields as appropriate to the area in which he was working, to cordon off the area as much as possible, and enclose him in a “box.” [T-97]. The welder worked from an eight-foot ladder to weld the pipes to the ceiling level. When opened up, the ladder was “about six feet across at the bottom.” [T-96].

As he recalled it, work was done in the upholstery shop during daytime hours when inmate employees were working. If inmates were in the way, the company would ask correction officers to relocate them, which could not be done by the witness or his employees. He could not recall specifically any instance where inmate employees were moved, however. The contract hours for the welder and his assistant were 7:00 a.m. to 3:30 p.m. Monday through Friday. Although it had been discussed between OGS and the company whether the work might proceed after 2:30 p.m., such a schedule was not implemented to his knowledge. As he understood it from OGS personnel, OGS had requested a proposal that the work be done “after hours” but the company “ended up doing it during the daytime for whatever reason.” [T-108].

Mr. Manzi explained that the blankets and shields surrounding a work area are to prevent people from seeing the bright sparks which are created and which can damage the eyes, not to prevent materials from flying out per se. He claimed that any sparks from this type of project would “generally fall straight down,” and would not travel a distance of four feet “generally.” [T-88]. Because the sparks are “very tiny pieces of liquid metal that are hot . . . [t]hey don’t weigh anything. It’s almost like dust. They fall . . . down, pretty much. Gravity usually does the work on that.” [T-89]. Debris was not created from the process.

Mr. Manzi learned about three years after the event that one of the prisoners had allegedly been injured in the upholstery shop, in the context of a lawsuit brought by this claimant against Mr. Manzi’s employer, CB Strain in August 2006.

At the time of trial, Mr. Manzi did not recall from present knowledge whether he was at Green Haven on September 19, 2003, although he said he generally was there for the weekly meeting with OGS. He estimated that he had been in the upholstery shop between two (2) and six (6) times while his men were working there. No reports of any injury were made by his employees, nor did any inmates approach him concerning the potential for injuries because of allegedly hazardous conditions, or actual injuries, for the entire job, not just the upholstery shop portion. Such reports would be required. Had such a report been made by his employees, the first thing he would have done was to report it to OGS as well as to his own boss.

Robert Keeley, the welder working for CB Strain in the upholstery shop that day, testified as well. He generally confirmed the methodology and location of the work as described by Mr. Manzi, but did not remember the day of the alleged accident specifically. During the arc welding process, welding rods would reach between 2700 and 2800 degrees Fahrenheit. Such tremendous heat had caused his own clothes to catch on fire in the past. He said that metal debris is not thrown about during arc welding, however, and confirmed that only sparks and heat are generated. He, too, said the sparks would fall to the ground in the area immediately around him. He was not aware until approximately three (3) years after he had finished the job, when his employer’s attorney contacted him, that anyone claimed he was injured. He did not have any recollection of anyone claiming injury while he was working in the upholstery shop as a welder, accompanied by his foreman, William Pitts. Additionally, he did not have any specific recollection as to whether any inmates were ever in the room as he worked.

Giselle Wilser, the civilian supervisor employed as an Industrial Training Supervisor for 25 years, did not remember the claimant specifically, nor had she any recollection of any injury associated with the welding activity taking place in the shop she managed. Testifying generally as to procedures then, she said that had there been an accident, she would have completed a required inmate injury report, and it would have been signed by the claimant. After the report was completed and signed, she would have called her boss, and he would either have come to the office and she would have handed it to him, or she would have gone to the office herself and would have made copies and handed it in. If an inmate came to her saying he was injured, she would send him to the on-duty correction officer, who would then give him a pass to the housing block, and the block officer would send the inmate where he needed to go. In a case like this one, Ms. Wilser said an officer would send the injured inmate straight to the facility hospital. She said she would be disciplined for denying an inmate medical attention, and likely suspended while the matter was investigated.

Ms. Wilser denied instructing claimant to flush his eye out, saying
“every worker knows that there is an eye wash station and they can use it at any time that they feel like they have to flush out their eyes. We don’t have to give them permission or nothing. It’s right there. It’s attached to the water fountain.
It has the directions on top of it, how to use it. I’ve never given an inmate advice. I’ve never used the water fountain with one of my workers.” [T-170].

She also said that she never saw an inmate use the eye wash station during her years in the upholstery shop.

Ms. Wilser confirmed that the tables had never been moved in her experience, as they were “pretty heavy.” [T-175]. The sewing machines themselves were bolted to the floor. The only part of the installation process she saw was when workers came in and were working on the ceiling apparently installing hangers for the pipes. In terms of any safety equipment, when she came in to work one day, she recalled that there were plastic sheets across the work tables that had material on them “so nothing would get dirty” while they worked on the ceiling. [T-180]. She said there were no safety cones in place in the shop, and she did not recall seeing any blankets hung from rods, nor did she recall any welding taking place while the shop was in operation.

Correction Officer Richard Smith was the duty officer in the upholstery shop on September 19, 2003, having swapped the 7:00 a.m. to 3:00 p.m. tour with Officer Doyle that day. He said he did not recall the claimant coming to him to say he had been injured on that date, nor did he recall refusing him medical attention. His recollection was essentially limited to knowing that he worked that shift that day in the upholstery shop, as he did not remember if he saw people installing pipes on that day, nor did he recall any installation on other occasions, or anyone ever welding in that location.

No other witnesses testified. A document entitled “Inmate Accident Log for 2003 Green Haven Correctional Facility” was admitted in evidence on consent. [Exhibit A]. The log does not show any accident occuring on September 19, 2003.

DISCUSSION AND CONCLUSION
To establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

The State has a duty to exercise reasonable care in providing inmates incarcerated in its prisons who are participating in work programs with safe equipment, adequate training and supervision and a reasonably safe place to work. Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665 (1964)[3]; Letterese v State of New York, 33 AD3d 593 (2d Dept 2006)[4]; Martinez v State of New York, 225 AD2d 877 (3d Dept 1996)[5]; Kandrach v State of New York, 188 AD2d 910 (3d Dept 1992)[6]; Palmisano v State of New York, 47 AD2d 692 (3d Dept 1975)[7]. While it is not an insurer of inmate safety, and negligence should not be inferred merely from the happening of an accident, the State must still exercise reasonable care in the circumstances, from the standpoint of its unique position and control in a prison setting.

Labor Law provisions governing worker safety do not define the duty of the State to its inmate workers, but do help in assessing what may be the reasonable standard of care. Maldonado v State of New York, 255 AD2d 630, 631 (3d Dept 1998)[8]; D’Argenio v Village of Homer, 202 AD2d 883, 884 (3d Dept 1994)[9]; see generally Labor Law § 200. Labor Law §200, for example, codifies the common-law duty of an owner or contractor to exercise reasonable care in providing workers a safe place to work. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993). “Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law §200 . . . (citation omitted).” Comes v New York State Elec. & Gas Corp., supra.
Additionally, based on whatever life and work experience he brings to the task, an inmate who is performing a job is responsible for his own failure to use reasonable care. Manganaro v State of New York, 24 AD3d 1003,1004 (3d Dept 2005)1[0]; Martinez v State of New York, supra; Carter v State of New York, 194 AD2d 967 (3d Dept 1993)1[1]; Hicks v State of New York, 124 AD2d 949 (3d Dept 1986)1[2]; Palmisano v State of New York, supra.1[3]

After carefully considering the testimony of all the witnesses, and after observing their demeanor as they did so, the Court cannot help but conclude that although each found it necessary to add “helpful” details (or suffered from poor recollection which neither counsel refreshed), on the whole, claimant’s testimony is not credible based upon the Court’s opportunity to compare the testimony and documentary evidence offered.

In this regard, there is a lack of independent substantiation of the fact of any accident in the first place, including any report of inmate injury within the correctional facility itself, and any injury report by the contractor, as well as ambiguity in the scant medical record presented, that is troubling. Claimant, who impressed the Court as an intelligent and capable individual, offered only his own testimony as to his pre-accident protestations to the plant supervisor about the lack of proper safety equipment. He named three other inmates as also complaining about the conditions, yet their testimony was not offered at trial. He offered only his own testimony as to the happening of an accident on September 19, 2003.

Similarly, his assertions that Ms. Wilser would not release him to the medical facility, and that he waited with another inmate - an inmate whom he also named but did not produce at trial - for (literally) hours before being returned to his housing block and being again denied medical treatment, are simply not credible. While there was a self-serving tone to Ms. Wilser’s indication that she would never deny anyone medical treatment lest she be disciplined herself, on balance, and given claimant’s burden of proof, his more elaborate descriptions of the alleged events of the day ultimately appear to be just that: an elaboration. This claimant - whom the Court found fully capable of self-assertion - did not produce any record of grievances concerning alleged denial of medical treatment.

While the medical records offered confirm that some type of foreign object was present in claimant’s eye on September 20, 2003, as to its origin those same records speak of dust or dirt flying in his eye, and make no mention of any particle landing in his eye while he was at his assigned job in the upholstery shop the morning before, nor do they confirm any burns.

Based upon this record, the claimant has failed to establish by a preponderance of the credible evidence that any accident, as he described it, occurred, or that the State failed to provide him with a safe work place, including the provision of appropriate safety equipment, and Claim number 111011 is in all respects dismissed.

Let judgment be entered accordingly.

June 22, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. Quotations are to trial notes or to the transcript unless otherwise indicated. Here, [T-7].
[3]. State 100% liable where inmate claimant injured his right hand while using a corrugating machine to process garbage cans. Machine lacked safety device that would have prevented injury, and there was credible evidence that a bolt had become loose on other occasions, resulting in the failure of such safety device operating properly. Only one-half hour of instructions on use of machine.
[4]. State not culpable. Inmate claimant’s act of ascending to the very top cap of an unsecured 10-foot-high stepladder was the sole proximate cause of her injuries when she was performing an assigned painting task as part of a work crew. Claimant failed to establish that the State did not properly supervise or train her or provide her with a safe workplace. Climbing to that position was not condoned by supervising officer.
[5]. State not culpable. Inmate claimant performing electrical work on a temporary generator injured by electric shock while isolating electrical wires supervisor had told him were not presently live. Supervisor denied making such representation, and also said he told claimant to avoid the “hot” power side, and gave claimant opportunity to not complete task. Claimant had allegedly told State employees that he was not knowledgeable or competent to do the repair demanded. The record established, however, that claimant had represented himself as experienced in the electrical field, and had indeed belonged to an electrical union for five years prior to his incarceration, and had received substantial training. Failure to provide reasonably safe equipment, adequate warnings and instructions is not supported by record. In light of his experience and training his own actions were reckless and a superseding cause. Even after being injured, he completed the task with the tools provided within 5 minutes.
[6]. State found 50% liable where inmate claimant assigned to work operating woodchipper at sawmill never given specific instructions as to its use, gave 5 minute demonstration of how to insert wood into chipper, instruction that it was dangerous, and that if any clog occurred, instructing correction officer to be called. Chipper was missing a locking bar safety device. As claimant operated machine, saw strips of wood coming out rather than chips, not only from the normal chute, but from the gap created by the absence of the locking bar. When he climbed on top of body of chipper his hands came in contact with blades, causing partial amputation of three fingers. Inmate’s disregard of instructions only contributing factor. “Nothing in these instructions [to turn off machine] expressly linked the malfunctioning of the machine to any potential safety risk to an operator. Moreover, . . . [the correction officer’s] own testimony of several occasions when the same instructions were ignored by inmates over a period of seven or eight months made it foreseeable that claimant might not have obeyed them in the form they were given.” Kandrach v State of New York, supra at 915.
[7]. Labor Law §200 provided standard of care where infant-claimant using joiner planer injured in woodworking shop, severing part of one of his fingers. State failed to properly instruct on use of tool, failed to properly enforce safety rule, and failed to properly supervise.
[8]. Claimant did not use protective eyewear provided while hammering nail that ricocheted, causing him injury. Although not bound by Labor Law provisions, same suggest that State owes duty to provide reasonably safe machinery and equipment and how reasonable standard of care determined. Here, safety measures were reasonable and adequate. No liability.
[9]. “It has long been held that inmates who perform work at the direction of State officers are not employees subject to the protection of the Labor Law . . . (citations omitted).”
1[0]. State not liable. No duty to provide warnings to inmate claimant, who had 20 years’ experience in the construction industry, “. . . owned his own construction company, was familiar with many power tools, had seen other people operate angle grinders and was familiar with how angle grinders work.” concerning dangers of use of angle grinder. Grinder in good working condition.
[1]1. State 60% liable. Claimant injured when he came in contact with a saw blade, while attempting to clean accumulated sawdust out of an edging machine at sawmill. Claimant aware of the dangers of crawling under an operating machine, and the preferred methodology of cleaning out the machine during two shutdown periods.
1[2]. State 50% liable. Claimant injured while operating table saw, which he had operated previously and for which he had received instruction which he may have ignored. Saw lacked a safety guard, and had been placed on a potentially unstable base.
1[3]. “It is obvious that there is an increased duty upon the State where the inmate of a correctional institution is young or inexperienced in the type of work in which he is engaged, particularly where such work involves use of dangerous equipment by a student . . . (citation omitted).”