State 50% liable for injury to inmate claimant resulting from failure to provide a safe workplace, failing to assess the conditions in a debris-filled pool claimant was directed to clear out, and failing to provide any training or equipment or supervision or plan, with the foreseeable result that claimant slipped, fell and suffered injury.
|Claimant(s):||JOHN ELLIS and KATHLEEN ELLIS|
|Claimant short name:||ELLIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||ANDREW ROSNER & ASSOCIATES
BY: DAVID SHUMER, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JOSEPH PATERNO, ESQ., ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||January 29, 2010|
|See also (multicaptioned case)|
John Ellis alleges in Claim Number 113487 that on January 26, 2007 at approximately 9:30 a.m. he was at his work assignment in the pool/storage area at Arthur Kill Correctional Facility [Arthur Kill] when dangerously stacked wooden tables and metal debris caused him to fall and suffer injury. Claimant(1) also alleges that in addition to allowing a known dangerous condition to exist, defendant's agents thereafter failed to provide him with adequate medical treatment for his injuries. Kathleen Ellis, John Ellis' wife, also seeks damages for the permanent loss of her husband's society and services. This decision relates only to the issue of liability.
In addition to his own testimony, the depositions of Keith Pisons, plant Superintendent at Arthur Kill at the time, and Scott Hughes, an acting maintenance supervisor, were submitted on claimant's direct case. [Exhibits 1 and 2].
At the trial, Mr. Ellis, 48 years old at the time of the accident, testified as to his work experience and training prior to the accident of January 26, 2007. He said that from 1976 to mid-1980, he had been in the army until his honorable discharge, working as a combat engineer, constructing buildings, bridges, and roads. After his military service, he obtained jobs in construction, ultimately training and working as an electrician. He said that while he was "basically trained on how to construct basic things: like doing the electric work, running wiring, putting up pipe" he had not been trained in "removing anything of that nature that was bulky . . . [that] required a number of people to handle the situation." [T-11].(2)
He pled guilty to manslaughter in or about 1984, agreeing to a sentence of five to fifteen years. He was instead sentenced to three to nine years based upon the circumstances of the case, and had served three years upon his release in 1987. It was then, he said, that he "started working in the electrical field in earnest." [T-13]. He worked for a company in Massapequa, New York for approximately six (6) years in the electrical field, and then worked as an "electrician mechanic taking care of general facility needs at Kennedy Airport" for Trans World Airlines [TWA]. [T-13]. After two bankruptcy filings, TWA laid off many employees including claimant. In 1997 or so claimant found other employment at Nature's Bounty in Bohemia, New York, taking care of "facility equipment, electrical work, basic maintenance stuff, fixing a door, putting in light bulbs - whatever they really needed to keep the facility running and changing the equipment." [T-14].
In May 2001 claimant was convicted of first degree robbery, and incarcerated for a period of eight (8) years. He served his sentence in several facilities, and had been at Arthur Kill for several months at the time of the incident.
At Arthur Kill, an indoor, in-ground swimming pool and the surrounding building area had been used for storage for at least thirty (30) years according to claimant and Scott Hughes, his direct supervisor. The pool was between 40 to 50 feet wide and 60 to 80 feet long, sloping inward from the sides from a depth of perhaps 3 to 4 feet at the shallow end, and then "gradually down to the center to about five feet. Then there's a drastic drop-off from about the center of the pool to the very deep end, which is maybe anywhere from ten to twelve feet deep." [T-20]. The debris in the pool included metal bedframes, wooden picnic tables, exhaust fans and ceiling tile, all stacked in a haphazard manner.
As part of his prison work assignment as an electrician at the direction of Mr. Hughes, Mr. Ellis had been in the pool area dismantling old lights on the day before his accident. On January 26, 2007, he was continuing the assignment when Captain Caldwell and Mr. Hughes's supervisor arrived. Sometime thereafter, claimant recalled that Mr. Hughes directed claimant as well as other inmates to clean up the pool area, and "put it in order." [T-18]. No instructions were given on how to remove the debris. He recalled they were simply told to "take it down, restack [it] in a proper and orderly manner." [T-19].
In terms of equipment, "roadblocks" were made available. The materials they were asked to break down were in the center of the pool "on the cusp of the deep slope . . . as the gradual slope ends and the extreme slope begins. It was right on the cusp of that transition." [T-20]. The pile they were to work on was "anywhere from eight to maybe twelve feet [high] at least." [T-21]. Claimant said that while no one instructed them on how to proceed other than to say "get it out of there," the "only way to get at it was to wade into the debris, a few of us at a time, and shake loose the one on the top and slowly hand it down to the next crew who could carry it out and place it in a manner where it could be stored properly." [T-21]. Mr. Ellis said he was among the first three or four individuals in a line of people who were breaking the materials loose from the pile and slowly handing them down for the others to carry away. He estimated that he was approximately three to four feet off the pool surface, "standing on debris", when he fell. [T-22]. He said that "the pile of debris we were standing on shifted and gave way and when it collapsed I went down with it and I was thrown to the floor." [T-22]. He cut his leg against a bedframe among other injuries, and received treatment at the facility medical center immediately after his fall.
On cross-examination claimant said that as an inmate in the custody of the Department of Correctional Services [DOCS], he could not refuse a direct order to participate in the work detail to clean out the pool, saying that a "refusal to perform any duty is a disciplinary action punishable by anywhere from six days' confinement up to approximately thirty, depending on how the altercation is written up by the offending officer." [T-23]. He agreed that yes, one could certainly refuse, but there were consequences attached. "The line of thought is: do it and complain about it later, sir." [T-23]. Indeed, he admitted that on that day he did not complain to anybody about the condition of the pool or the work assignment. When asked, he conceded that Scott Hughes, his supervisor, was "present pretty much the whole time . . . [and] was there when I fell . . . " [T-25]. Claimant estimated Mr. Hughes was approximately thirty to forty feet away, and agreed that his supervisor witnessed the accident.
He agreed that there was "some" lighting in the pool area, but said that it "probably was minimal." [T-25]. "They had light from the outside coming in and a few lights on in the pool area." [T-25]. There was a broken safety rail around the perimeter of the pool, and "most of it" was present. [T-25]. He reiterated that "the debris which I was standing on collapsed, and as it went down, I went down with it and landed in the bottom of the pool," [T-25-26] denying the question posed by the cross-examiner that the accident occurred when his foot got caught in the bedframe as he was cleaning and removing the debris in the pool area.
The inmate injury report Mr. Ellis completed that afternoon in the medical department provides that he was clearing and removing debris in the pool area, and that the "cause of the injury" was that his "feet got caught up in bedframes, took a fall onto frames." [See Exhibit A]. The "inmate's statement" on the form provides: "While we were clearing the pool area of debris and bedframes I got caught up in part of the frame, it collapsed under me, and I took a fall cutting my leg and falling on my left wrist." [Id.]. Mr. Ellis confirmed that this was the report he made at the time [see Exhibit A], and said that in his view, once a statement was given he was not "privy" to an ability to change the written statement, nor did he ask to change the statement. [T-29].
On redirect examination, claimant explained that the report's description of the accident was not inconsistent with his testimony that the pile shifted and collapsed. He said that the words written "it collapsed under me and I took a fall", simply meant that
"they were basically strewn underneath this pile of tables and they were already in disarray and now they have all this weight on top of them. They were not stacked in any orderly manner. They also had just been piled in there. So when you were standing on it, it was unstable to begin with . . . it shifted and collapsed, and I went down because I was standing on top of it to get at the pile of tables." [T-31-32]
He reiterated that he did not refuse to remove the debris or the bedframes nor did any of the other 10 or 15 inmates working refuse to do the task. Asked to describe the safety rail referred to on cross-examination, claimant explained that it was a wooden, "corral-type of fence" secured to the floor approximately three to four feet high, "that went around the perimeter of the pool . . . so if you were walking on the outside you were less likely to fall in." [T-30-31].
Keith Pisons was plant superintendent at Arthur Kill during the applicable period, and essentially confirmed in his deposition testimony taken on February 20, 2009 that there was a pile of debris in the empty swimming pool, and that at some point a determination was made that it should be straightened up. [Exhibit 1]. He remembered that there were wooden picnic tables and metal bedframes. He recalled that some of the metal bedframes were stacked in an orderly fashion, others were not. He did not know Mr. Ellis except as an inmate who had fallen at the work site - "a common occurrence" - and could not recall who the supervisor was of the work detail assigned to do the clean-up. He did not know specifically of any particular training given or safety equipment provided for those inmates who would be cleaning and straightening the storage area. He "suspected" they would have gloves available, and would be wearing their State- issued work boots. [Exhibit 1].
Scott Hughes, a civilian employee working as an electrician at Arthur Kill for approximately four (4) years at the time of his deposition on October 27, 2008, described the work he did at Arthur Kill as "maintaining the facility," primarily as an electrician, and also as "acting maintenance supervisor." [Exhibit 2]. He described his duties as "ordering of materials, scheduling of work, supervision of civilian staff" with only "some" hands-on work. [Id.]. He knew John Ellis as an inmate who worked as an electrician and as a maintenance mechanic at Arthur Kill. The routine work of a maintenance mechanic was "light bulbs, outlet switches, replacement of," Mr. Hughes said. [Id].
He recalled that it was Keith Pisons who had directed that the pool area be cleaned, and that on the day of the accident, there were two (2) security staff working, and somewhere between 10 and 15 inmates working on cleaning the pool area. He was the only civilian staff present, "but not all the time." [Id.]. He said that it was the "security" department that assigned people to the work detail of cleaning the pool area, and that is was routine for security to pick the staff for such tasks. [Id.]. In terms of lighting in the pool area, he said there was lighting above the pool, and that light bulbs directly above the pool could be changed by utilizing a scaffold (although he himself had never changed a light bulb there). When he had been in the pool he was able to see his footing, and denied any obstruction of the lighting above as a result of the piled up debris. He said that the accident occurred in the middle of the pool. He also said that the bedframes and picnic tables were at opposite ends, not stacked on top of one another.
Mr. Hughes witnessed the accident, and provided the following description:
"While moving the debris around and straightening up some old bedframes, not old bedframes, excuse me, new beds, they were stacking them to make them neat, inmate Ellis slipped on one of them and fell." [Exhibit 2].
He said the bedframes were stacked unevenly, and Mr. Ellis stepped on one and slipped and fell at "ground level", rather than the two to four feet fall suggested by the question of the deposition attorney. [Id.]. He said that the bedframes were not over loose debris, and that Mr. Ellis slipped on a bedframe that was on the ground. When Mr. Ellis came out of the pool, Mr. Hughes sent him to medical to have the cut on his leg checked out.
Mr. Hughes denied having any communications with Mr. Ellis or the security staff while the inmates were working in the pool, and did not recall communicating with anybody in the pool area on the day of the accident. He confirmed that the inmates were not given any protective clothing when they were assigned to the pool area, and that he did not direct anybody to take precautions to avoid any accidents on the day that claimant was hurt. Mr. Hughes viewed his job as one to oversee what was "security's detail", to "make sure that nothing good got tossed out." [Id.]. He did not know how the inmates were chosen to work in the pool area, saying that "security" would know and that Captain Caldwell was the director of security at the time.
No other witnesses testified, and no other evidence was submitted.DISCUSSION AND CONCLUSION
The State has a duty to exercise reasonable care in providing inmates incarcerated in its prisons who are participating in work programs with safe equipment, adequate training and supervision and a reasonably safe place to work. Bernard v State of New York, 34 AD3d 1065, 1067 (3d Dept 2006)(3) ; Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665 (1964)(4) ; Letterese v State of New York, 33 AD3d 593 (2d Dept 2006)(5) ; Martinez v State of New York, 225 AD2d 877 (3d Dept 1996)(6) ; Kandrach v State of New York,188 AD2d 910 (3d Dept 1992).(7) While it is not an insurer of inmate safety, and negligence should not be inferred merely from the happening of an accident, the State must still exercise reasonable care in the circumstances, from the standpoint of its unique position and control in a prison setting.
Additionally, based on whatever life and work experience he brings to the task, an inmate who is performing a job is responsible for his own failure to use reasonable care. Manganaro v State of New York, 24 AD3d 1003,1004 (3d Dept 2005)(8) ; Martinez v State of New York, supra; Carter v State of New York, 194 AD2d 967 (3d Dept 1993)(9) ; Hicks v State of New York, 124 AD2d 949 (3d Dept 1986)(10) ; Palmisano v State of New York, 47 AD2d 692 (3d Dept 1975).(11) Sometimes, such failure to exercise reasonable care may constitute the sole proximate cause of an accident and the resulting injuries, [see Letterese v State of New York, supra], or indeed create a superseding cause. See Martinez v State of New York, supra. At other times a finding of comparative fault is warranted [see e.g. Kandrach v State of New York, supra at 914-915; Carter v State of New York, supra ; Hicks v State of New York, supra at 950; Moran v State of New York, UID # 2005-009-148, Claim No. 106923 (Midey, J., December 21, 2005)];(12) premised on the claimant's conduct, viewed in the context of the unique circumstances confronting an inmate at a correctional facility. See Bernard v State of New York, supra; Lowe v State of New York, 194 AD2d 898, 899 (3d Dept 1993). The question is whether the inmate's conduct was "so reckless or unforeseeable" as to constitute the sole proximate cause of his injury, "sufficient to entirely excuse defendants from . . . liability" Havens v County of Saratoga, 50 AD3d 1223, 1225 (3d Dept 2008), lv dismissed 11 NY3d 846 (2008).
A finding of negligence generally requires establishing the following (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.
As a landowner, defendant's duty is to exercise "reasonable care under the circumstances . . ." [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. This is not an issue of either actual or constructive notice of a dangerous condition [see Gordon v American Museum of Natural History, 67 NY2d 836 (1986)] and a failure to timely correct such condition. This is a situation where defendant created a dangerous dumping ground, in existence for decades, and then sent inmates into the area with no training and apparently little supervision, with the very foreseeable result that someone was injured, whether from a "ground level" fall or a two- to four-foot fall, whether entangled in a metal bedframe or atop shifting debris. In this regard, while the presence of a safety rail around the pool may have had some meaning were claimant an individual who entered onto defendant's property and proceeded past the rail despite such sufficient warning of a latent danger, here the claimant was directed to proceed despite the obvious risks. As a landowner, defendant is responsible for ameliorating dangerous conditions defendant itself created.
After carefully considering the only live testimony afforded, that given by claimant, and after observing his demeanor as he did so, as well as the more static presentation via deposition testimony which essentially conforms with claimant's testimony in the significant areas, the Court finds that claimant was credible, and that he has established that the defendant is at least partially responsible for the injuries he suffered on January 26, 2007 as he worked as part of an inmate work detail under the supervision of State authorities.
Claimant testified, and the State's deposition witnesses confirmed to a degree, that the pool-storage area was full of haphazardly stored debris to a depth of 10 to 12 feet, and that the work claimant was directed to do was at the center of the pool where the sloping surface dropped sharply. While Mr. Ellis said he was three to four feet from the pool surface standing on debris when he fell, and Mr. Hughes said that claimant was on top of a bed at ground level, this is a distinction of little meaning since Mr. Hughes was not subpoenaed to add more than an implication of inconsistency. Indeed, the top of a metal bedframe might well be three to four feet from the pool surface. In any event, unlike those cases where it would be too speculative to find causation [see e.g. Hartman v Mountain Val. Brew Pub, 301 AD2d 570 (2d Dept 2003)(13) ], proximate cause can be inferred from the facts and circumstances surrounding the fall and the logical inferences to be drawn. No testimony that would allow a credibility assessment was offered other than claimant's, and, as noted, claimant was credible.
In the prison setting, unlike workers in other locations, inmates follow directions given by correction officers. Even orders that are not particularly reasonable. Claimant credibly indicated that his view was to try and do the task, and grieve the issue later. Mr. Ellis knew that orders were to be followed or else disciplinary action could be taken. Even if disciplinary action was not likely, or would prove minimal, an inmate who does not do what his supervisors tell him to do while working at a job, would be taken off the job.
Nonetheless, Mr. Ellis presented as a man of some experience and maturity, who would likely appreciate the risk associated with a 10- to 15-man crew plunging into a pile of sometimes unidentifiable debris without any game plan or safety equipment. Accordingly, while the Court finds that the State failed in its duty to assure that this inmate was afforded a safe place to work, by failing to assess the conditions in the debris-filled pool, failing to provide any training or equipment or supervision or plan, with the foreseeable result that claimant slipped and fell to his injury, the Court also finds that claimant could have done more to assure that he did not try to perform a task under dangerous conditions by speaking up about the absurdity of the task, and seeking guidance, equipment or a plan.
Based on the foregoing, the Court finds that Mr. Ellis has established(14) by a preponderance of the credible evidence that the State of New York is 50% responsible for claimant's fall and resulting injuries, and that the claimant is 50% responsible for his own injuries.
The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability in accordance with this decision. All trial motions not otherwise disposed of are herewith denied. Trial on the issue of damages will be scheduled as soon as practicable.
Let interlocutory judgment be entered accordingly.
January 29, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. References to claimant herein are to John Ellis, as the claim of Kathleen Ellis is derivative.
2. Unless otherwise indicated quotations are to the trial transcript, noted as [T- ].
3. State 100% liable where inmate claimant injured on work detail involving rolling logs up steep and slippery terrain, down a hill to a staging area, when he used hands rather than log mover at direction of correction officer.
4. State 100% liable where inmate claimant injured his right hand while using a corrugating machine to process garbage cans. Machine lacked safety device that would have prevented injury, and there was credible evidence that a bolt had become loose on other occasions, resulting in the failure of such safety device operating properly. Only one-half-hour instruction on use of machine.
5. State not culpable. Inmate claimant's act of ascending to the very top cap of an unsecured 10-foot-high stepladder was the sole proximate cause of her injuries when she was performing an assigned painting task as part of a work crew. Claimant failed to establish that the State did not properly supervise or train her or provide her with a safe workplace. Climbing to that position was not condoned by supervising officer.
6. State not culpable. Inmate claimant performing electrical work on a temporary generator injured by electric shock while isolating electrical wires supervisor had told him were not presently live. Supervisor denied making such representation, and also said he told claimant to avoid the "hot" power side, and gave claimant opportunity to not complete task. Claimant had allegedly told State employees that he was not knowledgeable or competent to do the repair demanded. The record established, however, that claimant had represented himself as experienced in the electrical field, and had indeed belonged to an electrical union for five years prior to his incarceration, and had received substantial training. Failure to provide reasonably safe equipment, adequate warnings and instructions is not supported by record. In light of his experience and training, his own actions were reckless, and a superseding cause. Even after being injured, he completed the task with the tools provided within 5 minutes.
7. State found 50% liable where inmate claimant assigned to work operating wood chipper at sawmill never given specific instruction as to its use, gave 5-minute demonstration of how to insert wood into chipper, instruction that it was dangerous, and that if any clog occurred, instructing correction officer to be called. Chipper was missing a locking bar safety device. As claimant operated machine, saw strips of wood coming out rather than chips, not only from the normal chute, but from the gap created by the absence of the locking bar. When he climbed on top of body of chipper his hands came in contact with blades, causing partial amputation of three fingers. Inmate's disregard of instructions only contributing factor. "Nothing in these instructions [to turn off machine] expressly linked the malfunctioning of the machine to any potential safety risk to an operator. Moreover, [the correction officer's] own testimony of several occasions when the same instructions were ignored by inmates over a period of seven or eight months made it foreseeable that claimant might not have obeyed them in the form they were given." Kandrach v State of New York, supra at 915.
8. State not liable. No duty to provide warnings to inmate claimant, who had 20 years' experience in the construction industry, ". . . owned his own construction company, was familiar with many power tools, had seen other people operate angle grinders and was familiar with how angle grinders work . . ." concerning dangers of use of angle grinder. Grinder in good working condition.
9. State 60% liable. Claimant injured when he came in contact with a saw blade, while attempting to clean accumulated sawdust out of an edging machine at sawmill. Claimant aware of the dangers of crawling under an operating machine and the preferred methodology of cleaning out the machine during two shutdown periods.
10. State 50% liable. Claimant injured while operating table saw, which he had operated previously and for which he had received instruction which he may have ignored. Saw lacked a safety guard, and had been placed on a potentially unstable base.
11. "It is obvious that there is an increased duty upon the State where the inmate of a correctional institution is young or inexperienced in the type of work in which he is engaged, particularly where such work involves use of dangerous equipment by a student . . . (citation omitted)." Infant-claimant using joiner planer injured in woodworking shop, severing part of one of his fingers. State failed to properly instruct on use of tool, failed to properly enforce safety rule, and failed to properly supervise.
12. State 75% responsible for inmate claimant's injuries, caused by fall from ladder while he was completing a painting project. State failed to provide adequate equipment and supervision. He had never been assigned to a project to paint utility support poles before, received no instruction as to the placement of ladder, or any orders forbidding use of the ladder without a spotter. Ladder part of a disassembled extension ladder.
13. "Although the absence of direct evidence of causation would not necessarily compel a grant of summary judgment in favor of the defendant, as proximate cause may be inferred from the facts and circumstances underlying the injury, the evidence must be sufficient to permit a finding based on logical inferences from the record and not upon speculation alone . . . (citations omitted). [Plaintiff's] admission at her deposition that she could not identify the alleged defect that caused her to fall is fatal to the complaint since the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation . . . (citations omitted)."
14. No evidence was adduced regarding claimant's allegation in his claim of inadequate medical care, thus this cause of action is dismissed.