State failed to properly train inmate Claimant in the proper operation and use of a chain saw, resulting in injuries to Claimant.
|Claimant short name:||HOOD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||PHILIP J. PATTI|
|Claimant's attorney:||PATRICK E. TYDINGS, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 1, 2010|
|See also (multicaptioned case)|
On November 4, 2003, Claimant Arthur Hood was an inmate at Groveland Correctional Facility (Groveland). He was assigned to Work Crew #5, which at that time was operating as a forestry crew on a Community Work Project in the Town of Wheeler. The inmate work crew was tasked with cutting down and clearing trees a distance of 15 to 20 feet on each side of a winding back road to facilitate snow removal as there was a residence at the end of the road.
It is not disputed that during the course of this activity, on a day when there was no snow on the ground, a tree was felled by a fellow inmate using a chain saw and it struck Claimant around the head and neck. Claimant asserts the Defendant's culpable conduct for the accident and injuries sustained. The trial of this matter was bifurcated, and this decision addresses solely issues of liability.
Correction Officer (CO) Michael Clark, employed by the Department of Correctional Services for some 24 years at the time of trial, was in charge of the six-inmate work crew, assigned as a forestry crew. This was the first time that CO Clark and his work crew had been assigned to this task at this location, and it was Claimant's first day on assignment to Work Crew #5. Upon arrival at the Town of Wheeler garage, the work crew met with civilians who told them what the project entailed and, according to CO Clark, instructed them in the use of the power equipment, which included a wood chipper and three chain saws.
CO Clark testified unequivocally that his responsibility on that day and on that assignment was as security staff, and not training staff. One chain saw and the chipper were operated by civilians, with two inmates assigned to operate the other two chain saws. Claimant was assigned to pick up felled trees, branches, etc., and take them to the chipper parked a short distance down the road. Safety equipment in the form of hard hats, goggles and hearing (noise) protection was issued. CO Clark's admonition to the inmates, when he was assigning each to his task, was that they should "pay attention to their surroundings."
The activities in question were covered in part by Department of Correctional Services (DOCS) Directive 4064, entitled Facility Safety, Section II. H. Work Crews and which noted that all community services crews "shall utilize the Work Crew Site Safety Program Manual for each project" (redacted copy in evidence as Exhibit 6). The same directive also covered safety training as follows:
III. SAFETY TRAINING.
A. No inmate will be assigned:
4. to use any other potentially dangerous tool or piece of equipment without first being instructed in the safe operation or use by a trained staff member, e.g., shop foreman, vocational instructor, etc. [emphasis supplied].
B. The employee who trains the inmate shall complete a Record of Training, Form 1574,... and have it signed by the inmate.... The employee shall sign and distribute this form as follows:
Original to Inmate Guidance and Classification File
Copy to Shop/Unit File
The Work Crew Site Safety Program Manual (redacted portions in evidence as Exhibit 7), in addressing Forestry Crews and Work Site Safety Guidelines, recites in relevant part that "[a]ll staff and inmates shall be trained in proper operation of tools and equipment assigned to them" (Exhibit 7 - page numbered 16). Lest it go unsaid, CO Clark identified a chain saw as a dangerous piece of equipment.
Moreover, while Exhibit 10 was dated nearly one year after the incident in question, its subject was Groveland's policy with respect to Community Service Work Crews. As to safety procedures, it notes that "[i]nmates are not allowed to operate... chain saws... without prior training by qualified personnel." This document was the only available document produced by the Defendant in pretrial disclosure and was admitted despite its post-accident date, for whatever weight and relevance I might ascribe to it. However, CO Clark testified that he was aware of DOCS policies in effect at the time of the accident that, in sum and substance, inmates should not be allowed to operate dangerous equipment unless they had been trained by qualified personnel. Thus, regardless of whether Exhibit 10 recited then-existing safety procedures at Groveland verbatim or not, it was DOCS policy at the time of the incident.
James Shearman was an inmate member of Work Crew #5 on the day in question and was assigned by CO Clark to operate a chain saw to fell trees. Mr. Shearman, who has been released from custody, testified at trial and had a clear recollection of the events. He noted that while he was trained in the safe and proper use of certain tools and equipment as enumerated on his Record of Training signed on July 9, 2003 (Exhibit 8), he had never been trained or certified by DOCS on the use of a chain saw. Indeed, he indicated that, in his experience, inmates were not assigned to power tools. Not one of the tools for which he was formally trained is a power tool (Exhibit 8). In his testimony in this regard, which I found credible, he described his pre-incarceration employment as a roofer/contractor for many years, and had a general background in power equipment, acknowledging that he might have used a chain saw on one or two occasions to chop up a felled tree, but he had never used a chain saw to cut a tree down.
The only training that Mr. Shearman was given was that which was shown to him on the job on the day of this accident. He described instruction that one make an incision from the bottom and then cut down from that and hit it from the back and the tree will fall. While CO Clark was unequivocal in stating that he did not train anyone on Work Crew #5 on the day in question, it appears that CO Clark provided ongoing direction/instruction, albeit clearly not formal training, throughout the job that day. Mr. Shearman surmised that he had been selected to use the chain saw because of his experience as a general contractor prior to incarceration. Mr. Shearman made it quite clear that he was subservient to correctional personnel and could never question an order/direction given to him by a correction officer. Hence, when told to operate the chain saw, despite his lack of training or experience, he obediently complied.
What was most telling to me was Mr. Shearman's on-the-job baptismal training that day in learning how to cut the trees and how the trees would fall. He noted that he attempted to cut the trees in such a fashion that they would fall to the middle of the road from the sides. He estimated having cut some 15 trees before the one that did not fall as expected and struck Claimant. By way of contrast, Claimant, who was working on the same side of the road as Mr. Shearman, estimated that the accident had occurred perhaps one hour after the crew started, and that perhaps four to six trees had been felled. This differentiation in the number of felled trees, most likely a matter of indistinct memories, is noteworthy because Mr. Shearman was undergoing orientational on-the-job training.
As Mr. Shearman observed, not all of the trees had fallen as intended, some getting caught up on the branches of standing trees and the like, with their paths to the ground redirected. He learned on the job, particularly as he had never felled a tree prior to the day in question.
When he saw Claimant standing in a place where the offending tree appeared to be falling, he yelled out to him. But the chain saws were very loud and Claimant was wearing earplugs provided to him for this forestry assignment. Whatever the reason, Claimant did not hear the warning before he was hit by the tree on his helmet and right shoulder. To the extent that the Defendant suggests that Claimant's summer job in the 1970's pruning (but not felling) trees in Monroe County parks provides some experience in forestry/logging, it is rejected. I find that Claimant bears no responsibility for this accident.
As for the misguided tree, it was estimated to be about 30' or perhaps 40' tall and to be either 4" to 6" at the base by Mr. Shearman, or 8" to 10" in diameter by Claimant (but see Exhibit 3).
Claimant predicates liability on allegations that the State failed to provide a reasonably safe workplace; failed to provide proper instruction to Claimant, especially including the failure to warn Claimant about the hazards of logging, and the failure to properly supervise the crew. While the Defendant correctly observes it has no duty to provide unremitting supervision, and the crew was instructed generically to be aware of their surroundings, given an untrained chain saw operator and an untrained and unfamiliar rookie member of the work crew, and given the dangerous logging operation, what was done was not enough. The record is devoid of any evidence that CO Clark was qualified (i.e. trained or certified) to give Mr. Shearman instruction/training on the use of a chain saw. This is not to suggest that he was inept, but he certainly does not appear to have the credentials described in DOCS Directive 4064 for instruction in the safe operation or use "by a trained staff member, e.g., shop foreman, vocational instructor, etc." (Exhibit 6). Similarly, it is unclear that either Claimant or Mr. Shearman was warned of the risks associated with trees falling in unintended directions, a hazard potentially exacerbated with an untrained chain saw operator. Under these circumstances, Claimant urges that it was reasonably foreseeable that one could be injured by a falling tree.
When inmates are directed to participate in work programs, the State owes a duty to provide a safe workplace, with reasonably safe equipment, and to give adequate warnings and instructions for the safe operation of equipment (Martinez v State of New York, 225 AD2d 877; Kandrach v State of New York, 188 AD2d 910; Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665). Of course, I am aware that the mere happening of an accident carries with it no presumption of negligence on the part of the State (Fitzgerald v State of New York, 28 Misc 2d 283; Richards v State of New York, 205 Misc 3). But here, the State breached that duty by creating a dangerous workplace in the absence of training Mr. Shearman in the operation and use of a chain saw, and the failure to have provided adequate warning/training of the dangers of logging to both Claimant and Shearman. It is not for the Court to speculate whether that training would have addressed the use of the chain saw, qualified instruction in the mechanics/methodology of felling trees, or safety precautions assessing the circumferential range of danger, etc. What can be said is that a chain saw is a dangerous piece of equipment, the use of which required "prior training by qualified personnel," and the Defendant culpably assigned an untrained and inexperienced inmate to operate a chain saw. As a result, this created a dangerous condition whereby Claimant was struck by a tree felled by an earnest, but unqualified, inmate who was taught to obey orders given to him by Correction Officer Clark.
As for proximate cause, Claimant has shown that " 'it was reasonably foreseeable that an injury could occur but need not demonstrate that the precise or exact manner in which the [incident] occurred was foreseeable or could be anticipated' (Harris v State of New York, 117 AD2d at 303, see Di Ponzio v Riordan, 89 NY2d 578, 584 ; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 316-317 " (Dawn VV. v State of New York, 47 AD3d 1048, 1051).
Accordingly, the Defendant is answerable in damages for the injuries sustained on November 4, 2003. All motions not heretofore ruled upon are now denied. The Clerk is directed to enter interlocutory judgment accordingly.
June 1, 2010
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims