After a bifurcated trial on the issue of liability, the Court finds that claimant failed to establish that the State was negligent. Claimant, who was allegedly injured while mowing a hill when he was an inmate at the Collins Correctional Facility, failed to establish that the conditions present on that day were unsafe and that claimant had been directed to mow the hill where his accident occurred.
|Claimant short name:||BOBIK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||FRANZBLAU DRATCH, P.C.
BY: Brian M. Dratch, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 12, 2017|
|See also (multicaptioned case)|
This claim arises from a slip and fall accident that occurred on October 2, 2015, when claimant John Bobik was allegedly injured while mowing a hill on the campus of the Collins Correctional Facility (Collins) where he was incarcerated. Claimant alleges that the State of New York (State) was negligent by ordering him to mow the hill when it was saturated with rain and dew and that he was not issued proper work boots. The trial of this claim was held in Buffalo on October 4, 2017. Following the trial, the parties requested an opportunity to submit posttrial memoranda.FACTS
The claimant had been incarcerated at Collins since June 2015 and was assigned in August 2015 to participate in the Lawn and Grounds work program. Claimant testified that in this program they were responsible for lawn maintenance and gardening of the property inside the fence at Collins and that he worked five days per week and on some weekends. Claimant testified that prior to his incarceration, he had worked as a landscaper for 13 years and was familiar with the operation of mowing equipment. He testified that prior to the October 2, 2015 accident, his progress report in this work program rated him as "excellent" or "above average" and he had received a pay increase to the top pay grade for this program.(1)
On the day of the accident, claimant reported to the lawn and grounds shack at approximately 8:30 a.m. He testified that the correction officer who was normally the supervisor was not on duty that day and was replaced by Correction Officer Swartzmeyer (CO Schwartzmeyer), who had supervised them on prior occasions. The work crew consisted of the claimant and four other inmates. Claimant testified that CO Schwartzmeyer told them that their work assignment that day would be to mow the side recreation yard, which was normally cut once per week. He testified that he told CO Schwartzmeyer that the grass was too wet and that he didn't think it was a good idea to cut it at that time, also indicating to him that his boots were too worn. The claimant testified that in response, CO Schwartzmeyer ordered them to proceed and mow the lawn. He testified that he complied with CO Schwartzmeyer's order and then selected a walk behind mower to operate that morning. The claimant described the mower as self-propelled with a 48 inch cut and that it weighed about 500 lbs. He testified that he had used this specific mower 10 to 12 times prior to the accident.
Claimant testified that he then started mowing the hill area in the recreation yard that he had cut on previous occasions and that he was mowing slower because of the wet grass conditions. He testified that he was able to make three sideway runs with the mower before the accident occurred. He testified that he cut the grass going sideways on the hill because of the steepness. Claimant testified that the grass was saturated with rain and also had morning dew. He testified that he had never previously mowed when the grass was wet. Claimant testified that while he was mowing, CO Schwartzmeyer was inside the lawn and grounds shack. The claimant testified that the accident occurred while he was making a sideways run when the mower began to slide down the hill and he slid with it to the bottom of a ditch and pond, a distance of about 15 to 20 feet. Claimant alleges that he fell because of the wet grass and the lack of tread on the work boots issued him at Collins. He testified that one pair of boots were issued each year.
After his fall, claimant testified that he went to report the accident to CO Schwartzmeyer, who was inside the lawn and grounds shack. He told him that he had fallen and hurt his shoulder and lower back. Claimant testified that he was told by CO Schwartzmeyer to finish his work. As a result, claimant returned to and restarted the mower but was unable to complete the work because of the pain he was experiencing. He testified that he was not able to go to the Collins infirmary until the work had been completed about 40 minutes later. The Inmate Injury Report dated October 2, 2015 (Exhibit 1) included a signed statement by claimant describing the accident, that he "[s]lid down wet hill with mower (walk behind). No tracktion (sic) on boots. Hurt my back and shoulder."
The claimant filed a grievance on October 12, 2015, concerning the accident through the inmate grievance program (Exhibit 2). In the grievance, claimant alleged that he was injured as a result of the negligence of Collins staff after following instructions to mow the wet grass. He sought to have facility staff informed of proper safety procedures, including that inmates not be directed to cut grass when it was wet and that they be issued proper footwear for their work conditions. The grievance was investigated and on October 28, 2015, claimant was removed from the lawn and grounds program by Sergeant Ballachino "due to lack of basic skills and use of common sense" (Exhibit 3). The claimant's grievance was then referred to the Collins Superintendent. The Collins Superintendent released his response on November 30, 2015, stating that the supervising correction officer denies that he directed claimant to mow a hill or any specific area in the recreation yard. The correction officer also denied that claimant advised him that his boots were worn or of the condition of the grounds. The supervisor also stated that he was not advised of claimant's fall until after all work was completed. The Superintendent concluded that there was no malfeasance or dereliction of duty by Collins staff and denied the grievance. Claimant was not reinstated to the Lawn and Grounds work program. No other witnesses or exhibits were introduced by claimant in his direct case, who rested his proof at the conclusion of claimant's testimony.
In defense of the claim, the State produced Jason Schwartzmeyer, a Department of Corrections and Community Supervision (DOCCS) Correction Officer and the claimant's program supervisor on the day of the incident. CO Schwartzmeyer testified that on the date of the accident, he was assigned for the day as Lawns and Grounds officer, a task he performed two days per week. CO Schwartzmeyer stated that he had previously supervised this work crew 30 times. He testified that although he supervised the Lawn and Grounds work program crew, he did not give specific work assignments to each inmate.
On the day of the accident, CO Schwartzmeyer testified that he did not assign a specific task or equipment to claimant and he observed claimant using a Toro mower that he regularly used. He testified that he did not order claimant to mow the hill although he observed claimant and two other inmates mowing in that area. CO Schwartzmeyer testified that claimant never mentioned the condition of the grass or his work boots prior to beginning work that day. On cross-examination, he answered that it was common sense not to mow if the grass was wet and that he wouldn't have ordered them to mow it if it was wet. In fact, he testified that none of the inmates stated to him that the grass was too wet to cut that day. CO Schwartzmeyer did not see any dew and did not recall that it had rained. He did not witness claimant's fall or see him working on the hill. CO Schwartzmeyer testified that claimant did not tell him that he had fallen until after their work was completed.(2) Following the completion of CO Schwartzmeyer's testimony, the defense rested their case.LAW
It has been held that "when the State, through its correctional authorities, directs a prison inmate to participate in a work program during incarceration, it owes the inmate a duty to provide reasonably safe machinery and equipment with which to work and adequate warnings and instructions for the safe operation of such machinery and equipment" (Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996], quoting Kandrach v State of New York, 188 AD2d 910, 913 [3d Dept 1992]). However, in this role the State is "not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Muhammad v State of New York, 15 AD3d 807 [3d Dept 2005], quoting Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]). In such situations, the inmate is also required to exercise a reasonable degree of care while working with equipment on a work crew and is responsible for his or her own acts of negligence (Martinez v State of New York, supra at 878).
The claimant presented no evidence at trial that the mower he selected to use the day of the accident was not reasonably safe. In addition, claimant did not testify that the State failed to provide him with adequate instructions for the safe operation of that mower. In fact, claimant testified that he had worked in landscaping for 13 years prior to his incarceration and had used this particular walk behind Toro mower in the Collins work program 10 to 12 times prior to the accident. Claimant also testified that he participated in a training program on the operation and safe use of all of the equipment. He also submitted as evidence Exhibit 4, an Inmate Progress Report for the Lawn and Grounds work program dated September 14, 2015 that he signed indicating that he was "able to run all equipment and has prior experience in program." CO Schwartzmeyer testified that he observed three inmates, including claimant, mowing the area in the vicinity of the hill but he did not observe claimant mowing the hill. CO Schwartzmeyer testified that another inmate named Thomas typically mowed the hill and used a different walk behind mower.
The claimant also did not offer any proof other than his own testimony to establish that mowing the hill under the conditions present on the day of the accident was unsafe. The claimant testified that he believed that the grass was too wet to mow and he communicated this to CO Schwartzmeyer, who he claims denied his request. CO Schwartzmeyer denied claimant's allegation and denied that claimant ever stated to him that the grass was too wet to mow. CO Schwartzmeyer did not believe that the grass was wet that morning and did not see any dew. CO Schwartzmeyer testified that neither of the other two inmates mowing with claimant in the vicinity of the hill ever indicated to him that they believed the grass or the hill was too wet to safely mow. Furthermore, claimant did not submit any meteorological report or other evidence to establish that it had rained prior to the day of the accident to support his allegation that the grass was saturated and too wet to mow. As a result, there is no evidence to corroborate claimant's testimony.
There is also no evidence that claimant was ordered by CO Schwartzmeyer to mow the hill. Claimant did not testify that he was specifically ordered to mow the hill, only that he was ordered to begin mowing operations that morning. He testified that he chose the walk behind Toro mower to use that day and that he decided to mow the hill. CO Schwartzmeyer testified that he did not typically assign equipment to the inmates and he did not order who was to mow specific areas within the recreation yard. Accordingly, the critical decisions of what mower to use and where to mow were both made by claimant independently. During the trial, claimant admitted Exhibit 3, a memorandum that was prepared by Sergeant Ballachino to the work program committee three weeks following the accident, with the subject matter of that memo being "Removal from Program."(3) In that memo, Sergeant Ballachino recommended that claimant be removed from the Lawn and Grounds work program because "Inmate Bobik is to be removed from program due to lack of basic skills and use of common sense." In this regard, it has been held that an inmate in a work program is responsible for his own failure to use reasonable care (Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]), claimant's actions and his failure to exercise reasonable care may constitute the sole proximate cause of an accident and the resulting injuries.
Claimant alleged that the work boots issued to him by the State were unsafe or not suitable for mowing, testifying that he fell and was injured as a result of the wet grass and the lack of tread on his boots. However, other than his testimony, there is no evidence that the work boots were unsafe or did not provide adequate traction for use in mowing operations. In addition, the only other witness to testify at trial, CO Schwartzmeyer, stated that claimant never mentioned to him that the tread on his boots was too worn to mow either before the work began or following his accident. Finally, claimant testified that the walk behind mower he was operating weighed 500 lbs. As such, even if claimant was wearing new boots, I find that his testimony is not credible that the presence of additional tread on his boots would have prevented a 500 lb. mower from continuing to slide down the hill that he described as steep with the alleged presence of wet grass.
After carefully considering the testimony of claimant and CO Schwartzmeyer, and after observing their demeanor during the course of the trial, the Court cannot conclude that claimant has established by a preponderance of the credible evidence that the State was negligent. I find that the testimony of the claimant when compared to CO Schwartzmeyer was simply less credible. Therefore, based on the foregoing, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence. Accordingly, the claim is hereby dismissed in its entirety. Any motions or objections upon which the Court has previously reserved or which remain undecided are hereby dismissed.
The Clerk of the Court of Claims is directed to enter judgment accordingly.
December 12, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
1. Exhibit 4, Inmate Progress Report dated September 14, 2015.
2. During CO Schwartzmeyer's direct testimony, a memorandum from him to Sergeant Ballachino dated October 27, 2015, Exhibit A, was received into evidence without objection. CO Schwartzmeyer's testimony was consistent with his written statement in Exhibit A.
3. Sergeant Ballachino interviewed claimant with regard to the grievance he filed following the subject accident (Exhibit 2, page 9).