FAGAN v. THE STATE OF NEW YORK, #2009-042-004, Claim No. 110643
Claimant seeks to recover damages for injuries sustained by him. The trial is
this matter was bifurcated and this is the liability portion of the claim.
Claimant’s claim is that while he was part of a crew working in the
compost shed and the pump room next to the compost shed facility, he opened the
door to the pump room with his left hand and when he did so, the door slammed
shut, as a result of one of claimant’s co-workers outside the door driving
a Bobcat, causing a portion of one of claimant’s fingers on his left hand
to be amputated. The court finds that the defendant is 100% liable for the
negligence of claimant’s co-worker and finds that there was no negligence
on the part of the claimant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NORMAN I. SIEGEL
MARK A. YOUNG, ESQ.
HON. ANDREW M. CUOMO
Attorney General of the State
of New York
By: G. LAWRENCE DILLON,
ESQ. Assistant Attorney General
September 9, 2009
See also (multicaptioned
This claim, by Gregory Fagan, seeks to recover damages for injuries sustained
by claimant on January 21, 2005 as a result of defendant’s alleged
negligence. The trial of the claim was bifurcated and this decision pertains
solely to the issue of liability.
The trial was held on April 3, 2009. The claimant was called as the first
witness. Gregory Fagan testified that he is presently an inmate at Cayuga
Correctional Facility. He was an inmate at Marcy Correctional Facility on
January 21, 2005 and had been incarcerated since September of 2001. On January
21, 2005 he was part of a three-person compost crew working in the compost shed
and the pump room next to the compost shed at the Marcy facility. It was a type
of job that was less restrictive than most prisoner jobs and carried a certain
amount of responsibility and freedom with it.
Claimant testified that the job of the compost crew was to receive barrels of
food refuse brought in from other institutions and from Marcy and to dump the
barrels using a Bobcat driven by another inmate, Mr. Nolasco. Mr. Nolasco would
then mix the refuse that was brought in with woodchips. The mixture eventually
transforms into compost.
Next, the barrels would be brought to the pump room where they were washed,
cleaned and put back outside of the pump room to be returned to the facilities
from which they came. Also, the Bobcat was washed outside of the pump room to
keep it clean. There was an inmate named Allen who worked with claimant to wash
the barrels and put them back outside and inmate Nolasco operated the Bobcat.
At the time of the accident, Correction Officer Patrick Vincent was in charge
of the work crew, but was not present at the scene itself. Claimant testified
that he and inmate Allen were inside the pump room washing out barrels. The
“pump room” is made up of two rooms, one of which actually has pumps
operating and another adjacent room. The door leading to the outside was a
solid door with no windows. While there were ventilation slats in the bottom of
the door to allow air to flow in and out of the room, the door did not allow for
any visual observation as to what was outside the door. The claimant testified
that the procedure was that the Bobcat operator, who was outside, would blow the
horn of the Bobcat when he was ready for the inmates inside to help him with
barrels outside and that the inmates would then go outside to help him.
On the day of the accident, claimant testified that he heard the horn blow and,
using his left hand, went to open the door. The door was then slammed shut by
the front of the Bobcat, causing a portion of one of claimant’s fingers on
his left hand to be amputated. Claimant testified that the area directly
outside of this door contained a sign which said “no vehicles
allowed” and that the area was a walkway where no vehicles were allowed.
Claimant testified that he had no thought that the Bobcat would hit the door as
he was opening it since he knew that the Bobcat was not supposed to be
On cross-examination claimant testified that he had been on the compost crew
for one month, and had worked a total of about 40 shifts over that time period.
He said he was familiar with the manner in which the Bobcat was to be operated
and that he could hear the Bobcat when he was in the pump house if the Bobcat
was operating outside of the pump house or in the compost shed. He conceded
that as the Bobcat came closer to the pump house, the sound of the Bobcat was
louder. Claimant also admitted that inmate Allen, inmate Nolasco and claimant
worked as a team on a regular basis without the actual direct hands-on
supervision of Correction Officer Vincent. Mr. Fagan testified that during the
month that he was working in the crew, he had never seen the Bobcat operated in
the area that was for pedestrian traffic directly outside of the door leading
from the pump house to the outside. Claimant testified that the distance
between the door to the pump house and the wooden wall of the compost shed was
approximately six feet.
Correction Officer Patrick Vincent testified on behalf of defendant.
Correction Officer Vincent has worked at Marcy Correctional Facility since its
opening in 1988. He is in charge of the compost area and the recycling center.
The officer testified that each morning he would pick up the crew of
approximately 10 men and escort them to the recycling area, which also included
the compost area, which was outside of the actual prison confinement walls.
Correction Officer Vincent’s description of the work at the compost area
was similar to the testimony of claimant Fagan. The officer stated that inmate
Nolasco had been trained in the operation of the Bobcat and had received a
training certificate on November 21, 2004. He testified that the training
certificate evidenced the fact that Mr. Nolasco had been trained as a
Correction Officer Vincent further testified that he had previously observed
Mr. Nolasco operating the Bobcat and was very satisfied with the manner in which
Mr. Nolasco operated the Bobcat. Correction Officer Vincent acknowledged that
inmate Nolasco told him that he had bumped the door leading from the pump house
as Mr. Fagan was exiting the pump house, causing the injury to Mr. Fagan.
Correction Officer Vincent testified that he would have stopped Mr. Nolasco from
operating the Bobcat in the area directly outside of the pump house if he had
observed him doing that. He said it was a very narrow space and that the Bobcat
was not supposed to be in the area in front of the door.
Correction Officer Vincent testified that he issued a ticket to Mr. Nolasco in
the form of an inmate misbehavior report citing Mr. Nolasco for operating the
Bobcat in a negligent manner in an area where he was not supposed to be
operating the Bobcat. Correction Officer Vincent testified that Mr. Nolasco had
been specifically instructed not to operate the Bobcat in the area of the
accident and that in fact no one was supposed to operate a Bobcat in the
immediate area where the accident occurred.
The essential facts of this accident are undisputed. The claimant has shown by
a preponderance of the credible evidence that he was injured as a result of the
negligent operation of the Bobcat by a fellow inmate. There is no proof that
claimant himself was negligent or contributed to the occurrence. He followed
the customary practice for opening the door and was injured when the door was
struck by the Bobcat, which should not have been operated in the area. The
operator knew better than to operate the Bobcat on the walkway and there was
signage in the area of the walkway to warn that no vehicles were allowed.
Claimant, at trial, asserted two theories of
. First that the defendant is liable
for the negligent supervision by Correction Officer Vincent, and second, that
the defendant is liable for the negligence of the inmate Bobcat operator.
The court finds that claimant has failed to prove that there was negligent
supervision, and that such negligent supervision was a proximate cause of injury
to the claimant. There is insufficient proof of lack of supervision. The
Bobcat operator had the appropriate training and the supervising officer had
previously reviewed and approved of inmate Nolasco’s operation of the
Bobcat. The mere fact that the officer may not have seen the accident or have
been in the immediate area when it occurred does not equate to lack of
supervision. Colon v State of New York, 209 AD2d 842, is an inmate
personal injury case in which it was alleged that the inmate claimant was
attacked by another inmate due to the failure of the state to use adequate
supervision. The court found that absent evidence that the assailant was a
“known dangerous prisoner”:
unremitting supervision in the engine repair shop was unnecessary and the fact
that Callaghan [the instructor, whose vocational training of the inmates took
him both outside and inside the shop] and a guard were not present at the time
of the incident, in and of itself, is insufficient to support a finding that the
State failed to exercise reasonable care.
(Colon v State of New York, 209 AD2d 842, 844, citing Padgett v State
of New York, 163 AD2d 914, 915, lv denied 76 NY2d 711).
Likewise, in Hahne v State of New York, 290 AD2d 858, the court noted
that to hold the state liable for the behavior of an inmate under the theory of
negligent supervision, knowledge of the propensity of the inmate for the
offending behavior “is an essential predicate for the imposition of
liability on a theory of negligent supervision” (Hahne v State of New
York, 290 AD2d 858, 859). Here, there is simply no proof that the defendant
had any notice or prior knowledge of the propensity of this well-qualified
experienced Bobcat driver to drive in such a negligent manner.
It is the second ground for liability that is causing the most dispute between
the parties. They acknowledge that there is no dispute on the facts, but rather
it is on the law that they differ. The state argues that inmate Nolasco is not
an “employee” of the state and thus the state cannot be liable for
the negligent acts of Nolasco. Defendant cites a number of instances in which
the courts have found that an inmate is not an “employee”. Claimant
however, contends that the state can be liable for the negligence of
claimant’s coworker, citing federal decisions which this court finds
inapplicable to the facts of this case.
The defense is correct that, in a number of contexts, an inmate is not an
“employee” of the state. The protections and presumptions of the
Labor Law do not apply to inmate workers (Beale v State of New York, 46
NYS2d 824). Inmates are not “public employees” within the meaning
of the Taylor Act provisions of the Civil Service Law (Matter of
Prisoners’ Labor Union at Bedford Hills [Women’s Div.] v Helsby,
44 AD2d 707). In addition, inmates in New York State correctional
facilities are not entitled to workers’ compensation benefits (Matter
of Reid v New York State Dept. of Correctional Servs., 54 AD2d 83).
However, there are circumstances in which principles of law applicable to an
employer’s responsibility for the acts of its employees also apply to the
State’s responsibility for the negligent acts of inmates.
While the mere happening of an accident carries no presumption of negligence on
the State’s part (Muhammad v State of New York, 15 AD3d 807), in
this case there is no factual dispute: the negligence of Fagan’s fellow
inmate while laboring on the work crew was the proximate cause of inmate
Fagan’s injury. In such circumstances, the State has been held
responsible for the negligence of an inmate’s coworker.
In Washington v State of New York, 277 AD 1079, the inmate claimant was
injured when he was thrown from a horse-drawn hay wagon negligently driven by a
fellow inmate. The State did not contest the finding of negligence, but
contended that the State could not be held liable. As the decision itself
[the State] asserts that the Court of Claims was without jurisdiction . . .
because a fellow inmate is not an ‘officer or employee’ of the State
and that therefore the State is not responsible for the negligence of such
inmate. Both claimant and the driver of the hay wagon were under the immediate
control, supervision and direction of a prison guard who was an employee of the
State. . . No one contends that an inmate of a State prison is an employee of
the State under ordinary circumstances. However, when the State undertakes to
perform one of its functions through the medium of such inmates and directs them
. . . to perform certain duties under the immediate supervision of a State
employee, then the State makes such inmates its agents and employees while in
the performance of such duties, at least to the extent of rendering the State
liable for their tortious acts in the performance of such duties.
(Washington v State of New York, 277 AD 1079).
Cassidy v State of New York,
5 Misc 2d 835, involved another inmate accident with a horse-drawn hay wagon.
Claimant, an Attica inmate, was injured as a result of the operation of the
wagon by the “teamster”, who was also an inmate. Among its various
findings of negligence, the court held that:
[n]egligence on the part of the teamster in driving this team of horses is
chargeable to the State. Washington v State of New York, 277 App. Div.
1079; Sullivan v. State of New York, 257 App. Div. 893, affd. 281
N.Y. 718. The Court finds that the teamster was guilty of negligence.
(Cassidy v State of New York, 5 Misc 2d 835, 837-838).
Hahne v State of New York, 290 AD2d 858 involved a state inmate assigned
to perform janitorial services at DEC headquarters. While there, the inmate
inappropriately touched and attempted to kiss a DEC employee. Claimant asserted
that the State was liable under a theory of respondeat superior. The court
disagreed, stating that the act of the inmate was committed for his personal
motives and not in furtherance of the “employer’s” business,
but noted that “inasmuch as the State undertook to perform janitorial
services at DEC headquarters through the use of its inmates, it would be liable
for their tortious acts committed in the performance of such duties”
(Hahne v State of New York, 290 AD2d 858, 859).
For the reasons enunciated in these decisions, the court finds that defendant
is liable for the negligence of claimant’s coworker. That the Bobcat
driver was negligent is uncontroverted and the record is devoid of any evidence
that the driver’s action was not in furtherance of defendant’s
There is no credible evidence that any negligence of claimant contributed to
The defendant is 100% liable. All motions not previously decided are
A trial on the issue of damages will be held as soon as practicable.
Let interlocutory judgment be entered accordingly.
September 9, 2009
HON. NORMAN I. SIEGEL
Judge of the Court of Claims
.In the claim itself, claimant also alleged
that defendant was negligent in its treatment of claimant following his injury.
However, at trial no proof whatsoever was offered in support of this allegation
and this portion of the claim is, therefore, denied.