New York State Court of Claims

New York State Court of Claims

VARELA v. THE STATE OF NEW YORK, #2009-041-508, Claim No. 112637


Defendant’s failure to provide proper equipment and supervision to inmate work crew is found, after trial, to be the sole proximate cause of the claimant‘s fall from a roof and his resulting injuries.

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:
FRANZBLAU DRATCH, P.C.By: Brian M. Dratch, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Kent B. Sprotbery, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 14, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Ronnie Varela (claimant), while an inmate at Wallkill Correctional Facility (Wallkill), was injured on July 12, 2006, a rainy day, after falling into a wooden trash receptacle (dumpster). About this, neither party disagrees. The parties, however, starkly disagree about how, and under what circumstances, claimant fell.

At a bifurcated trial limited to the issue of liability, claimant testified that as part of a several inmate work gang he was directed by the gang supervisor, Correction Officer Robin Greene, to ascend to a flat roof (the package room roof) in order to collect and bag garbage that had been thrown on the roof from adjoining buildings. Ascending to the roof, a height of approximately seven to eight feet, by means of stepping on the dumpster and then to an adjoining handrail and awning before hoisting himself to the roof, claimant testified to being joined by three other inmates on the roof, and to spending 10-15 minutes on the roof, in the rain, bagging the collected garbage. A ladder was not provided to the claimant to ascend the roof, and claimant had never before been asked to clean the package room roof.

After completing the garbage collection on the roof, in descending, claimant testified to having one foot on the roof and one on the awning, having a fellow descending inmate slip and grab him, causing both to fall onto and then, when the dumpster lid “flipped,” into the dumpster, causing injuries to his side and to an arm. No ladder was provided to the claimant to descend the roof. Claimant’s testimony regarding the circumstances of the accident was clear, direct, particular and credible.

Defendant’s only witness, Correction Officer Robin Greene, the supervisor of claimant’s work gang on July 12, 2006, gave testimony starkly contradicting that of claimant. Correction Officer Greene testified that no inmates ascended to the package room roof on July 12, 2006 to collect and bag garbage but that he, out of concern for the safety of the inmates on that rainy day, ascended to the roof himself (without the use of a ladder), and that he collected and bagged the garbage himself. While on the roof, Correction Officer Greene testified to seeing claimant’s head rise to roof level, that he ordered claimant down (from what, he assumed, was claimant’s position standing on the dumpster), and that he was later informed that the claimant had fallen into the dumpster. Correction Officer Greene testified to neither observing nor being contemporaneously aware of claimant’s fall, only being informed of it several minutes later after transporting the work gang from the worksite.

Correction Officer Greene testified to ordinarily supervising between 2-10 inmates on a work gang, and that on July 12, 2006 specifically, the work gang included a “number of other” inmates (other than claimant) and that he “approximated” there to be six or seven inmates in the day’s work gang. The inmates were not restrained.

For several reasons, the Court finds that Correction Officer Greene’s testimony lacks credibility. Initially, he would have the Court believe that he chose to himself undertake the work assignment otherwise expected to be completed by a number of inmates under his supervision. That is unlikely in the Court’s estimation. Even more difficult to believe, and in what no doubt would be questionable penal supervision practice, his testimony places him, as the sole supervising Correction Officer of the work gang, on a roof seven to eight feet off the ground, for several minutes, unable to immediately police or supervise the work gang, all of whom are unattended and unrestrained, awaiting his completion of the roof cleaning. This Court simply does not credit testimony which removes, voluntarily and in a non-emergency situation, the sole supervising Correction Officer from the immediate presence, control, custody and observation of an unrestrained inmate work gang, for the time, distance and circumstances described.

Further calling such an account into question is the first paragraph of Exhibit 3, a “To/From” memo, authored by Correction Officer Greene on the day of the incident. It reads, “On this date at approximately 9:45 AM the YGII gang had completed cleaning the package room roof.” Correction Officer Greene’s own memorandum indicates the roof cleaning had been performed by the work gang, not by himself.

Finally, the details contained in the rest of that memo were provided to him, according to Correction Officer Greene, both by the inmates and by Correction Officer Glenn Jones, in a telephone conversation subsequent to the accident. Correction Officer Greene testified to having observed none of the facts that he reported in his memo, relying solely upon the inmates’ accounts and information provided to him over the phone by Correction Officer Jones. This testimony was contradicted by the testimony of Correction Officer Jones who indicated that while he and Correction Officer Greene did speak by phone, no information concerning the circumstances surrounding the accident was discussed, and that during the phone call, Correction Officer Jones simply told Correction Officer Greene to prepare and provide him with a “To/From” memo, which detailed the circumstances surrounding the accident.

For all of the foregoing reasons, the Court declines to credit the testimony of Correction Officer Greene. The Court fully credits the testimony of the claimant.

The State of New York’s correctional authorities are under a duty to provide reasonably safe equipment and training to inmates participating in facility work programs (Havens v County of Saratoga, 50 AD3d 1223, 1224 [3d Dept 2008], lv denied 11 NY3d 846 [2008]); see Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Spiratos v County of Chenango, 28 AD3d 863, 864 [3d Dept 2006]; Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]).

However, defendant “is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident” (Muhammad, 15 AD3d at 808 [internal quotation marks and citations omitted]).

Additionally, “an inmate is required to exercise ordinary care” for his own safety (Muhammad, 15 AD3d at 808). If the inmate fails to exercise ordinary care “and pursues a dangerous course of conduct, he or she is required to take some responsibility for his or her own negligence” (Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]).

The Court finds as a matter of fact that claimant fell when descending the package room roof on July 12, 2006, that he had been directed there by Correction Officer Greene to collect and bag garbage, that it was raining during the time in question, that no ladder was provided for his ascent or descent, and that the means of ascending and descending the roof was by climbing on a combination of a wooden dumpster, an adjoining handrail and an awning immediately adjacent to the roof.

The defendant negligently failed to properly provide the claimant with appropriate equipment by which to ascend and descend a roof seven to eight feet from the ground. Recognizing the safety concerns of working on a rainy day on a wet roof (acknowledged by both Correction Officer Jones and Correction Officer Greene), the Court finds that claimant was directed by defendant to ascend and descend the roof utilizing the wet-surface of the dumpster, handrail and awning. The Court finds that claimant’s fall was proximately and solely caused by the defendant’s breach of its duty of due care in failing to provide proper equipment and supervision over claimant’s work and that the claimant‘s fall was readily foreseeable under the circumstances. Accordingly, defendant’s liability is established.

Let interlocutory judgment in favor of claimant be entered. A trial to determine damages will be scheduled.

All motions not previously decided are hereby denied.

July 14, 2009
Albany, New York

Judge of the Court of Claims