|Claimant short name:||HAPEMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Thomas R. Monjeau, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||October 8, 2010|
|See also (multicaptioned case)|
Claimant seeks damages for injuries he sustained on April 19, 2006, while an inmate at Franklin Correctional Facility. A Notice of Intention to File a Claim was served on June 26, 2006. The claim, which was filed on December 4, 2006, alleges that the accident occurred while claimant was cutting Plexiglass as part of his work as a carpenter on an assigned project for the correctional facility. Claimant alleges negligence against defendant for failing to properly instruct him in the proper manner of cutting Plexiglass and in the proper utilization of the instrument provided for that purpose. He further alleges that defendant was negligent in providing claimant with a table saw that was antiquated, defective and not suitable for the purpose intended, in denying claimant's requests for adequate replacement of the blade, and in failing to properly inspect the tools, implements and equipment provided to claimant.
The claim was bifurcated and proceeded to a nonjury trial on the issue of liability on January 13, 2010. For the reasons set forth herein, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence.
At the trial, claimant testified on his own behalf and submitted documentary evidence in the form of photographs, an Inmate Injury Report, documents from Franklin Correctional Facility regarding work control safety, and the deposition transcript of Claude Schneider.
On direct examination, claimant testified that on the date of the accident, he was an inmate assigned to the Work Control Program at Franklin Correctional Facility. He testified that he went to work that day, intending to finish a project which had been started the previous day. A piece of Lexan (a high-strength plastic) had been left out near the table saw by another inmate who was using it the previous day. Claimant testified that it was left out for claimant to use the following morning. The Lexan was to be used for windows on drawers that would be placed on a shelf he had been instructed to build by Barb Kilmer, a civilian tool clerk who worked in the Work Control Shop. Claimant testified that he had used the table saw on three or four occasions prior to the date of the subject accident. He testified that he was never told not to use the table saw to cut Lexan and that he had witnessed another inmate, Inmate Gentle, use the table saw to cut Lexan just the previous day.
Claimant testified that the tool clerks were aware that he was using the table saw to cut Lexan, because having noticed that the blade on the table saw was burnt and had some teeth missing, he asked Ms. Kilmer if there was a hand-held jigsaw or another blade, like a panel blade, that he could use instead of the table saw with the burnt blade. She said there was no panel blade available and that all of the blades they had identical to the one on the saw were in the same condition. Claimant testified that the Lexan was one-eighth-inch thick, that he needed to cut four four-by-six-inch pieces of it, and that he successfully cut the first three pieces. As he cut each piece separately, he moved it to the front left side of the table saw bench. The accident did not occur until he was working on the fourth piece.
Claimant testified that as he was sliding the fourth piece through the saw, it binded. Claimant also testified that he had a difficult time getting the guardrail to properly lock down and believed that because the guardrail had not properly locked down, it shifted as he was cutting the first few pieces of Lexan, such that the space on the table through which the fourth piece was to pass was limited. Because there was not sufficient space for the piece to continue through the saw, the blade kept spinning and then kicked backed, causing the Lexan to shatter.
Claimant testified that he did not receive any disciplinary or misbehavior tickets as a result of his use of the table saw to cut the Lexan, and further, that the sign advising workers not to use the table saw to cut plastic was placed on the table two or three days after his accident.
On cross-examination, claimant admitted to having read and signed, on March 15, 2006, a document indicating that he had been instructed in the correct and safe way to use certain power tools and had been instructed in general shop safety procedures. He had also signed a document indicating that if he had questions as to the correct procedure to follow, he would ask the instructor for assistance. Claimant testified that Mr. Schneider, the supervisor of the shop, had gone over the safety features of the various machines with him, and asked him which ones he was familiar with. With regard to the table saw, claimant testified that he had used a smaller one before and that the difference between a smaller table saw and a larger one is the power. He also acknowledged that there is less control over a smaller table saw, as it is prone to move, whereas a larger one is more stable.
Claimant also admitted to signing a document which set forth safety rules, including one which indicated that no tools or machinery are to be used if not in good working order and that if any tool or machinery is in need of repair, he is to immediately report its condition to the supervisor. He testified that he had reported the condition of the table saw blade to Ms. Kilmer and asked her for another blade, to which she responded that they were all the same.
Claimant testified that a panel saw is used to cut larger pieces of material, such as sheets of plywood or paneling, and that although one was available on the date of the accident, he had never been instructed on its use to cut Lexan.
Claimant testified that two civilian employees worked in the Work Control Shop, Barb Kilmer and Lori Scharf. He could not recall whether both or only one of them worked on the date of the accident or the day before, despite the fact that on direct examination, he testified to having spoken with Ms. Kilmer.
Claimant's testimony on cross-examination was that the Lexan that was passing through the saw shattered, hit the Lexan which had already been cut and was off to the side, ricocheted towards the blade, and struck claimant.
In defense of the claim, defendant called two witnesses: Lori Jean Scharf and Claude A. Schneider. Documentary evidence was submitted on behalf of defendant in the form of photos. Ms. Scharf testified that she worked at Franklin Correctional Facility for almost ten years. She started as a Storage Clerk I, moved up to Storage Clerk II, and then transferred to the Maintenance Department as a Maintenance Assistant. As Maintenance Assistant, she worked most of the time in the tool cage, where she was responsible for handing out tools to the civilians and the inmates, having them sign forms regarding tools being taken out and returned, reordering tools, watching the inmates that worked in the shop and supervising the inmates that worked in the cage. She testified that there was not only a process for inmates requesting tools but for requesting material as well, including Lexan. Ms. Scharf testified that Lexan was kept locked up and accounted for at all times because it could easily be made into shanks or some types of weapons. To get Lexan, an inmate would have to ask either Ms. Scharf or her direct supervisor, Claude Schneider, because they had keys to the room in which it is stored. Barb Kilmer would help in the cage as needed or when Ms. Scharf had a day off.
Ms. Scharf testified that on or about April 19, 2006, a spare piece of Lexan was authorized to be used to make a countertop for the tool cage area. She testified that Inmate Gentle was the person authorized to cut the Lexan because he was the only inmate she ever allowed to use the table saw for that purpose. At the time, Inmate Gentle had been working in the cage for approximately 2½ years and was very knowledgeable in the tools they had in the shop and how to use them. Ms. Scharf did not recall whether any Lexan was leftover after Inmate Gentle cut it for the countertop, but testified that if there had been, it would have been given to her to lock up, or if it was small enough, it would have been given directly to the officer on duty who would have disposed of it as waste in a locked cage to which he had a key.
Ms. Scharf testified that at some point during the week of the accident, she became aware of the fact that there was Lexan in some picture frames in the Work Control Shop. When she discovered this, she told the supervisor, and they made sure that all of the frames were taken down and that the Lexan in those frames was either put away or thrown away.
On April 19, 2006, Ms. Scharf was working in the cage area. She believes that Ms. Kilmer was working that day as well, although she does not believe that Ms. Kilmer was in the cage with her. Ms. Scharf first became aware of the accident when a piece of Lexan flew and hit the cage where she was talking to an inmate worker. She did not witness the accident, but afterwards looked down and saw three pieces of Lexan that were of the same shape and size, as if they had been put into the machine together.
Ms. Scharf testified that the sign reading "do not use saw to cut plastic", which was entered into evidence in the form of a photograph, had been on the saw since the day she officially began working at Work Control in May 2004, and was there on April 19, 2006. Ms. Scharf testified that she believes it was even there in 2001 when she first started working in Work Control.
During her employment in Work Control there were many occasions on which an inmate brought broken or defective tools to her. Ms. Scharf testified that if a broken or defective tool or piece of machinery could be fixed by an inmate, it would be, but that if it was something that could not be repaired and a new part had to be ordered, the machine would be shut down until it could be repaired or replaced. An inmate was never sent back to work with a tool that was defective or broken. Ms. Scharf testified that there was only one table saw in the shop and she did not recall a time that it was ever shut down.
Ms. Scharf testified that there is only one of each type of blade and that the laminate blade would never stay on the table saw overnight. She testified that it was only given out when a certain project needed to be done. She testified that the wood blade was the one on the table saw at all times. Ms. Scharf does not recall Inmate Gentle changing the blade from a wood blade to a laminate blade on April 19, 2006, because it was Ms. Kilmer who directed him on that date, but she testified that any time she would allow Inmate Gentle to use it, he would change the blade.
Claude Schneider, the maintenance supervisor on the date of the subject accident, testified that he had been employed at Franklin Correctional Facility in Work Control since 2002. He testified that when he met with claimant about working there, claimant told him that he had a background in carpentry. Immediately after an inmate is assigned to work in Work Control and prior to doing any work there, documents regarding rules and safety are prepared and presented to that inmate for review and signature. Mr. Schneider testified that he trained claimant as to the safety and security procedures that are in place in the Work Control carpenter's shop.
When questioned about Lexan, Mr. Schneider testified that it takes a specific blade to cut it and that if claimant had wanted to use a machine to cut Lexan, he would have had to ask for permission to do so. Thereafter, the proper blade would have been installed and claimant would have been able to use it under supervision. Mr. Schneider testified that Lexan is one of those items that is very controlled within their environment, for security reasons.
Mr. Schneider testified that the Lexan at the facility has two levels of thickness - one that is one eighth of an inch and one that is one quarter of an inch. The eighth-inch piece is used mostly for picture frames. The quarter-inch piece is usually bolted directly to the wall to cover emergency exit signs, but was used around the date of the subject accident to make a countertop for the tool cage area.
On April 19, 2006, Mr. Schneider was not present at the time the accident occurred, but was directed to the scene immediately afterwards. He testified that there were three pieces of Lexan with similar marks on them that appeared to be from a blade. Mr. Schneider testified that he used the table saw on multiple occasions and that the guide fence was not broken, defective or improperly working, and that he never told claimant that it was.
Claimant has the burden of proving his case by a preponderance of the credible evidence (see Zi Guang v State of New York, 263 AD2d 745 [3d Dept 1999]). In determining whether the claimant has met his burden, the Court, as a finder of fact, must weigh the evidence presented after assessing the credibility of the witnesses, and resolving conflicting evidence and the relative strength of conflicting inferences that may be drawn therefrom (see Zi Guang, 263 AD2d at 746; Brooker v State of New York, 206 AD2d 712 [3d Dept 1994]).
Although the State is not an insurer of inmate safety, when the State directs an inmate to perform work, it is bound to provide that inmate with a reasonably safe work environment (see Maldonado v State of New York, 255 AD2d 630 [3d Dept 1998]). The State's duty includes providing the inmates with reasonably safe machinery and equipment, as well as proper instructions and warnings for the safe use of that machinery and equipment (see Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]). However, inmates are still required to exercise ordinary care when engaging in work programs (see Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005]). Moreover, there is no duty to warn or instruct a person of readily discernable dangers (see Manganaro v State of New York, 24 AD3d 1003 [3d Dept 2005]).
As the trier of fact, charged with assessing the credibility of witnesses and evaluating the evidence, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, that the injuries he sustained on April 19, 2006 were caused or contributed to by defendant. As a result, no liability attaches to defendant (see Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]).
The testimony offered by claimant as to how he obtained the Lexan and the status of the equipment and machinery he was directed to use, is in direct contrast to the testimony of defendant's witnesses, which the Court finds credible. First, claimant has failed to establish that he was authorized to cut Lexan. None of the witnesses testified that they gave him permission to do so. Next, the Court finds, through the testimony of Mr. Schneider, that claimant was provided with reasonably safe machinery and equipment, as well as proper instructions and warnings for the safe use of said machinery and equipment. Further, claimant offered no proof to establish that defendant failed to inspect the table saw in the ordinary course of business. The Court concludes that the accident was the result of claimant's own failure to follow proper instructions and warnings, and not the result of negligence on the part of defendant.
Based upon the foregoing, Claim No. 113064 is dismissed. All motions and applications not previously determined are hereby denied as moot. The Clerk of the Court is directed to enter judgment accordingly.
October 8, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims