Claim alleging that defendant's instruction that inmate/claimant remove his work gloves caused claimant to suffer laceration to lower arm as a result of pushing hand through a window while on a work detail is dismissed where proof showed that work gloves would not have prevented injury.
|Claimant short name:||HEITMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court sua sponte has amended the caption to reflect the only properly named defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||ROBERT N. ISSEKS, ESQ.
ALEX SMITH, ESQ.
By: Robert N. Isseks, Esq.
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 21, 2009|
|See also (multicaptioned case)|
Andrew Heitman (claimant) was injured on September 20, 2006 while performing work as an inmate of the Moriah Shock Correctional Facility (Moriah). On that date, he was weather sealing the floor of an Adirondack style cabin at Camp Dudley as part of an inmate work crew. Claimant, backing into a corner, placed his weight entirely on his right leg and bent forward to reach the floor with his right hand, while placing his left hand on a window frame of a multi-pane window, and lost his balance. As a result of losing his balance, claimant's left hand slipped from the window frame onto one of the window panes, bringing weight upon it, causing it to shatter. Claimant's left arm went through the glass pane, resulting in a cut to his left arm, several severed tendons and nerve damage. Claimant was not wearing work gloves at the time of the accident.
September 20, 2006 was the second day of claimant's stain and seal work detail at Camp Dudley. Beginning that work assignment on September 19, 2006 at approximately 8:00 a.m., claimant and his fellow inmates donned work gloves provided to them by defendant. After approximately three hours, claimant was instructed by the work detail supervisor, Drill Instructor Cross, to remove the work gloves, being told that the work crew was making a mess and that "only wusses wear gloves when they weather seal or paint." Claimant's testimony regarding the drill instructor's directive was uncontradicted and was credible. He also testified without contradiction that the inmates were instructed to follow all of the commands of their drill instructors.
Claimant removed the work gloves and worked the balance of September 19, 2006 without incident. Returning to the work detail the following day, claimant resumed his work, without gloves and without incident, from 8:00 a.m. until between 1:00 p.m. and 2:00 p.m., at which time the accident occurred.
Approximately two weeks prior to the accident, as part of a group of about 40 inmates, claimant was given general safety instructions at Moriah by representatives of defendant. Claimant was instructed to wear safety equipment, which included work gloves, while performing work duties. Introduced as Exhibit 6 were materials detailing defendant's "Work Crew Site Safety Program," which, in several places, directs that work gloves, part of "Personal Protective Equipment," be worn by inmates while performing their work duties.
For the foregoing reasons, claimant seeks to have the defendant found negligent for the failure of claimant to wear the defendant-issued work gloves when he was injured.
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 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]).
Finally, claimant bears the burden of showing that defendant's negligence, if any, was the proximate cause of his injuries. "To meet [his] burden, [claimant] was required to submit evidentiary proof to demonstrate that [his] injury was a natural and probable consequence of conditions for which defendants are responsible" (Ellis v County of Albany, 205 AD2d 1005, 1007 [3d Dept 1994]). In particular, claimant must demonstrate that the defendant's acts or omissions were a substantial cause of the injury-producing event (Carson v Dudley, 25 AD3d 983, 984 [3d Dept 2006]).
Claimant's negligence in contorting himself into an unbalanced position and in placing his hand on a pane of glass to balance himself was clearly a proximate cause of his injuries. An important issue to be determined is whether the defendant's negligence, if any, in directing claimant to remove his work gloves, was also a proximate cause of claimant's injuries.
Exhibit 9, admitted without objection, is a pair of work gloves of like size and style to those provided by defendant to claimant on the morning of September 19, 2006. Claimant specifically identified Exhibit 9 as being of the same dimensions and covering "the wrist" in the same manner as the gloves issued claimant on September 19, 2006. Although claimant gave trial testimony that the work gloves he used on September 19, 2006 extended "two to four" inches below the left wrist, examination of Exhibit 9 reveals that the glove extends no more than two inches below the wrist. Also, Drill Instructor Cross, in deposition testimony (Exhibit 8, pp. 12-13), estimated that the gloves issued claimant on September 19, 2006 extended one and one-half inches past the wrist.
This is of determinative significance given that all of the admitted evidence, including repeated instances of claimant's testimony, identify that area of claimant's arm which was cut by the broken glass as being his inner forearm (emphasis added). The claimant, not once, either in trial or deposition testimony, spoke of injury to his wrist area.
During deposition testimony (Exhibit A, p. 73), responding to a question seeking to have claimant show ". . . which scar is from the actual cutting on the pane of glass," claimant answers, "Yes. The middle of my forearm right here to right here." Exhibits 1, 2, 3 and 5, reports prepared after the incident was investigated, all identify injury to claimant's left forearm.
Although at trial the Court observed a scar of four to five inches in length on claimant's left inner arm beginning at a point about one inch below his wrist, deposition testimony of claimant (Exhibit A, p. 26) indicated his arm was cut "Maybe an inch, inch and a half maybe." Potential discrepancies between that testimony and the length and location of the scar observed by the Court at trial were explained by further deposition testimony of the claimant at pages 72-74 of Exhibit A. In short, claimant's scar observed at trial was the product of the initial cutting injury claimant endured on September 20, 2006 and of two subsequent surgeries undergone by claimant to address the injuries he sustained that day. Further, imprecise as that deposition testimony is, it appears from it that the scarring closer to claimant's left wrist was the product of one of his surgeries, not the initial injury.
The Court finds as a matter of fact that claimant suffered a cut on September 20, 2006 to his inner left forearm, at a point beyond which the work gloves issued to him on September 19, 2006 extended. Therefore, claimant has failed to prove by a preponderance of the credible evidence that the gloves he was issued, and directed to remove, would have provided protection to that area of his arm which was injured.
Accordingly, claimant has failed to prove that negligent conduct of the defendant, if any, was a proximate cause of his injuries.
The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
December 21, 2009
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims