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,
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
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
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
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 ); 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
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.