New York State Court of Claims

New York State Court of Claims
GARCIA v. STATE OF NEW YORK, # 2009-039-160, Claim No. 112312

Synopsis

Following a trial, the Court concludes that defendant is solely liable for injuries sustained by claimant while an inmate at Clinton Correctional Facility engaged in asbestos removal in the attic of the facility's gymnasium. Claimant offered sufficient proof to establish a breach of defendant's duty to provide reasonably safe equipment, as well as sufficient circumstantial evidence to establish the proximate cause of his injuries - that he was struck on the head from above by a can of adhesive spray.

Case information

UID: 2009-039-160
Claimant(s): ERIK GARCIA
Claimant short name: GARCIA
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112312
Motion number(s):
Cross-motion number(s):
Judge: James H. Ferreira
Claimant's attorney: Finkelstein & Partners, LLP
By: George M. Levy, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. King
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 24, 2009
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

A claim for damages was filed with the Clerk of the Court on May 8, 2006. In it, claimant alleges, among other things, that he was injured when he was struck by a falling object causing him to fall from a ladder. Issue was joined, discovery ensued and a bifurcated trial on the issue of liability was held on May 27, 2009. Claimant's proof consisted of a drawing by claimant depicting the area where his accident occurred, his own testimony and the testimony of Boyd Wood, a State employee and the supervisor on duty at the time of claimant's accident. In addition to the cross-examination of claimant and Wood, defendant's proof includes three photographs depicting the ladder used by claimant.

At trial, claimant testified that on January 6, 2005, while an inmate at Clinton Correctional Facility (hereinafter Facility), he and a fellow inmate were working in the attic of the facility's gymnasium, preparing the area for asbestos removal by "plasticizing", or sealing, the walls (Tr. 18, 47).(2) Claimant ascended a "folding" ladder after being directed by his supervisor, Wood, to seal the area (Tr. 18-19, 50-51). Claimant's fellow inmate was atop a platform located "a couple of feet over [claimant] " (Tr. 19, 41). While performing the work, claimant was startled when he was struck on the head by an object which caused him to shift on the ladder, thereby causing the ladder to shift and claimant to fall off the ladder and onto the floor (Tr. 19, 48-49). Claimant fell on his back and struck his head on an I-beam (Tr. 49).

Claimant did not observe the object before it struck him on the head (Tr. 60). Rather, he was able to identify the object "at the time that it fell in front of [him]" as a can of adhesive spray measuring approximately "ten inches long" and appearing "long, . . . like stainless steel" (Tr. 46, 48). Claimant saw the object "fall by" him, "like in front of [him]," after he was struck on the head, causing him to be startled and fall from the ladder (Tr. 19, 48). He recalled feeling "like . . . everything was falling on top of [him]" (Tr. 19). The ladder remained folded during its use, because there wasn't enough space to open it, and was leaning against a vent (Tr. 25, 30, 36, 40). Claimant did not "have anything whatsoever to do with the placement of that ladder" (Tr. 36). Claimant stated that the ladder "wasn't high enough," and he described the angle of the ladder as "steep" and its placement uncomfortable (Tr. 40).

Claimant and Wood testified that the platform located above claimant did not have any toe boards, netting or mesh affixed to it to prevent objects from falling off the platform (Tr. 43, 86, 96). Nor were there any handrails affixed to the platform (Tr. 86). Wood acknowledged that a completed platform would have included toe boards and handrails (Tr. 113), and that regulations require, and good safety practice includes, affixing toe boards to scaffold platforms (Tr.114). Wood also acknowledged that a folding ladder should not have been used in this circumstance, and that the folded ladder should have been "completely stable and should not have been able to shift" (Tr. 115). He confirmed that the worker on the platform was using cans of adhesive spray (Tr. 95), and that the six-inch gap between the platform and the back wall was large enough for an adhesive spray can to fall through (Tr. 114).

Based upon the testimony offered and the proof presented, the Court concludes that defendant is solely liable for claimant's injuries.

"[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 1223, 1224 [2008], lv dismissed 11 NY3d 846 [2008], quoting Spiratos v County of Chenango, 28 AD3d 863, 864 [2006] [internal quotations and citations omitted]). However, the State " '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], quoting Auger v State of New York, 263 AD2d 929, 930 [1999][internal quotations and citations omitted]). An inmate must still exercise ordinary care (see id.). Thus, "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" (Perez v State of New York, UID 2009-030-017, Claim No. 111011, Ct Cl, June 22, 2009 [Scuccimarra, J.]). Moreover, "inmates who perform work at the direction of State officers are not employees subject to the protection of the Labor Law" (D'Argenio v Village of Homer, 202 AD2d 883, 884 [1994]; see also Maldonado v State of New York, 255 AD2d 630 [1998]). "[T]he general standards set forth in the Labor Law or the regulations promulgated thereunder may[, however,] be reviewed in determining the standard of care owed by the State" (Maldonado v State of New York, supra at 631). The Court finds credible claimant's testimony that he was struck on the head by an object, which startled him and caused him to shift on the ladder, resulting in his fall from the ladder to the floor below. The Court also finds credible Wood's testimony that regulations required, and good safety practice would have included, affixing toe boards to the elevated platform to prevent objects from falling off the platform. Thus, the Court concludes that claimant has established, by a preponderance of the credible evidence, that defendant breached its duty to claimant to provide reasonably safe equipment when it directed him to work beneath an elevated platform that defendant knew did not have toe boards affixed while a fellow inmate was performing work atop the platform. The remaining question for the Court's consideration is whether claimant has offered sufficient proof to meet his burden with respect to the proximate cause of claimant's injuries. In this regard, defendant argues that claimant has not offered sufficient proof to establish the origin of the can of adhesive spray. The Court disagrees and concludes that claimant has offered sufficient circumstantial evidence to establish that he was struck on the head from above by a can of adhesive spray, and that the logical inference is that the can fell from the platform above him. It is well settled that "although direct evidence of causation is not necessary . . . 'the evidence must be sufficient to permit a finding based on logical inferences from the record and not upon speculation alone' " (Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 877 [2004], lv dismissed 4 NY3d 869 [2005], quoting Silva v Village Sq. of Penna, 251 AD2d 944, 945 [1998][citations omitted]). "While wholly circumstantial evidence may be sufficient to create a prima facie case of negligence, the plaintiff must prove it more likely or more reasonable that the injury was caused by a defendant's negligence rather than some other cause" (Oliveira v County of Broome, 5 AD3d 898, 899 [2004]).

Claimant's testimony regarding his observations at the time of the accident, and Wood's testimony regarding the presence of the cans of adhesive spray on the day of the accident, make it more likely that claimant sustained injuries as a result of a can of adhesive spray striking him on the head than some other cause. Although claimant did not observe the object before it struck him on the head, he was able to identify the object as a can of adhesive spray as it fell in front of, or by, him while he was still on the ladder (Tr. 19, 48, 60). Wood verified that the worker on the platform above claimant was using cans of adhesive spray (Tr. 95), and acknowledged that the space between the back wall and the platform was sufficient to permit a can of adhesive spray to roll off the platform, just to the left of the vent, and fall straight down in the vicinity where claimant was working (Tr. 104, 107-108). And, as discussed above, it is undisputed that the platform did not have toe boards to prevent objects from falling off the platform.

Accordingly, the Court finds that with respect to claimant's first cause of action for negligence, defendant is solely responsible for the injuries suffered by claimant, and the Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision.(3) Thereafter, a trial to determine damages will be scheduled as soon as practicable. All motions not previously decided are denied.

December 24, 2009

Albany, New York

James H. Ferreira

Judge of the Court of Claims


2. References to trial transcript are delineated herein as (Tr. __).

3. As explained by claimant's counsel at the outset of the trial, the second cause of action will be addressed during the damages portion of this matter.