New York State Court of Claims

New York State Court of Claims
FLEMING v. THE STATE OF NEW YORK, # 2011-010-007, Claim No. 113800


Pull-up bar hit inmate in head.

Case information

UID: 2011-010-007
Claimant short name: FLEMING
Footnote (claimant name) :
Footnote (defendant name) : The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113800
Motion number(s):
Cross-motion number(s):
Judge: Terry Jane Ruderman
By: Evelyn Miller, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 29, 2011
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for injuries he sustained during his incarceration at Mid-Orange Correctional Facility (Mid-Orange) when, on December 26, 2005, he was doing pull-ups in the gym's weight area and the bar which claimant was using to perform this exercise fell and struck him on the head. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Prior to this accident, claimant had been incarcerated at Mid-Orange for six to seven months. During that time, he went to the gym's weight area approximately five times a week, where he routinely did pull-ups on the bar in issue. The facility did not offer claimant instructions on how to use the exercise equipment and there were no correction officers stationed inside the weight area to supervise the inmates. Claimant testified that, prior to his incarceration at Mid-Orange, he had worked out in gyms for approximately 10 years.

On December 26, 2005, claimant was the first inmate to enter the gym. He proceeded directly to the area where he had routinely performed pull-ups during the previous six to seven months. As depicted in the photograph (Ex. A), the apparatus claimant used consisted of a metal pull-up bar with a frame that was bolted to the wall. A removable bar, which was the cause of claimant's injury, was placed on top of the permanently affixed pull-up bar apparatus. Claimant described this bar as having a small protruding metal piece, which he referred to as a "spike."(2) Claimant testified that after successfully performing 20 pull-ups on the removable bar, he let go of the bar and it fell from the apparatus. Claimant was struck in the head with the spike. Since there were no correction officers in the weight area at that time, claimant proceeded to locate an officer to report this injury.

According to claimant, on every occasion prior to his accident, when he observed the removable bar, it was positioned on top of the permanent pull-up bar bolted to the wall. Claimant had observed other inmates using the removable bar in the same manner as he had and he never witnessed any other inmate sustain an injury. Claimant further stated that the gray tape around the bar was intended to aid gripping the bar while doing pull-ups. Prior to his accident, claimant never complained about the condition of the pull-up bar apparatus and he never asked anyone for weight training.

Claimant testified that there was a universal machine in the weight area and that inmates were permitted to adjust the weights on that machine. Claimant did not use any weights or the universal machine. Claimant purportedly never saw the removable bar attached to the universal machine and he testified that he was not familiar with the term "lat bar."

Correction Officer James Frawley, Jr. testified that he was employed at Mid-Orange for 11 years and has worked throughout the facility. He described Mid-Orange as a medium level security prison and explained that there is less monitoring of inmates in a medium level institution than in a maximum facility. He stated that inmates live in cubicles and walk unaccompanied to programs and the gym. On December 26, 2005 at 7:15 p.m., Frawley was assigned to the door of the gym, monitoring inmates' entry. His responsibilities included conducting rounds and checking the exercise equipment. Frawley did not recall observing any problems with the equipment on December 26, 2005.

When shown a photograph of the pull-up bar apparatus, Frawley identified the two bars, which were permanently affixed to the frame bolted to the wall, as the bars intended to be used to perform pull-up exercises. Frawley further stated that the bar placed on top of the apparatus was the lat bar, intended to be used with the universal machine to develop the latissimus muscles. He testified that the small metal protrusion in the middle of this bar, which claimant referred to as a spike, was actually a connection used to attach the lat bar, via a pulley, to the universal machine. The universal machine was located at a distance of four to five feet from the permanently affixed pull-up bar. When detached, the lat bar was kept near the universal machine. Frawley had observed other inmates use the lat bar on top of the pull-up bar apparatus and he never told them not to use the equipment in that manner.

Frawley first learned about claimant's accident at 7:15 p.m., when claimant was reporting his injury to Correction Officer Simms. Frawley was dispatched to the gym to ascertain if there had been any foul play. Finding nothing unusual, he prepared a report for Sergeant Ewald who was on duty that evening (Ex. 2).(3)

Correction Officer Paul John Simms has been employed at Mid-Orange 12 to 15 years and in 2005 he held the position of first officer in the gym. He testified that the weight area equipment was periodically checked by civilian employees known as rec coordinators. Simms testified that his responsibilities included performing fire and safety inspections, but a safety inspection of gym equipment was not within his expertise. He identified the bar in issue as an exercise bar associated with another piece of equipment. Prior to reviewing exhibit A, Simms had never observed this bar used in conjunction with the pull-up bar apparatus. Despite the logbook record indicating his presence on December 26, 2005, Simms did not recall working that day and did not witness the incident.

Correction Officer Robert Garcia has been employed at Mid-Orange for 13 years. After claimant's accident, Garcia was dispatched to take photographs of claimant and the exercise equipment. Previously, Garcia had observed this bar used only as a lat bar attachment to the universal machine.

Captain Stephen Urbanski testified that from 2004 to 2009, he was a lieutenant at Mid-Orange. In 2005, he was the watch commander on the evening shift. He explained correction officers were responsible for checking safety issues daily and that civilian employees were responsible for maintaining the gym equipment. Urbanski never observed any inmates misusing the equipment. When shown exhibits A and B, Urbanski stated that he never saw the lat bar positioned on top of the pull-up apparatus. Previously, Urbanski had observed this bar used only as a lat bar attached to the universal machine. Prior to claimant's accident, Urbanski had never received a report of injury involving the lat bar.


It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997). "In connection with its operation of a gymnasium, it [the State] must use the same level of care to assure that its equipment is reasonably safe and free from hazards" (Valentine v State of New York, 192 Misc 2d 706, 707 [inmate injured on allegedly malfunctioning exercise machine failed to establish that machine was defective or that the State had notice and an opportunity to repair the purported defect]). The State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850; Rosa v State of New York, 63 AD3d 1383). Nor is it the State's duty to provide unremitting surveillance of its inmates under all circumstances (Sanchez v State of New York, 99 NY2d 247, 256).

In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that there is a lack of credible evidence to establish claimant's burden of proof. Significant to this Court's determination is its finding that claimant was less than credible. Notably, while claimant testified to a 10 year history of frequenting gyms prior to his incarceration, when questioned about the offending bar, he maintained that he was not familiar with the term "lat bar." Claimant's testimony in this vein was disingenuous and detracted from his credibility regarding the facts surrounding his accident. It is further noted that claimant's own testimony established that he used this apparatus without incident or complaint for six or seven months prior to December 26, 2005 and, during that time, he never observed any other inmate sustain an injury when using this equipment in the same manner as claimant.

While proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, in this matter, there was no proof of any prior accidents or complaints regarding this equipment (see Martin v State of New York, 305 AD2d 784 [prior accident history was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]; Vega v Jacobs, 84 AD2d 813 [proof of prior accidents at the same place and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice]). In the absence of any proof of prior similar accidents or complaints, along with claimant's own testimony that he used the apparatus five days a week for six or seven months without incident, complaint, or observation of any other inmate sustaining injury, the Court finds that it has not been shown that the apparatus presented a dangerous condition or that defendant was negligent with regard to this equipment (see Zammiello v Senpike Mall Co., 5 AD3d 1001 [where alleged dangerous condition existed for a number of years, the absence of prior accidents may indicate that the condition is safe]). Thus, claimant failed to meet his burden of proving that defendant had any notice of a potentially dangerous condition and failed to properly address it in a timely manner.

Further, despite the availability of a pull-up bar which was permanently affixed to the frame bolted to the wall, claimant chose to perform pull-ups on the removable bar placed on top of the permanent bar. Claimant was bound to see that which should have been seen with the proper use of his senses and to use ordinary care in his activities (see Weigand v United Traction Co., 221 NY 39; Manganaro v State of New York, 24 AD3d 1003; Sinski v State of New York, 2 AD3d 517 [claimant failed to make a prima facie showing that anything other than her own culpable conduct caused her accident]). This condition was not concealed and was open and obvious. In fact, claimant knew that the bar was not affixed to the frame. Claimant also testified to a 10 year history of frequenting gyms prior to his incarceration and his voluntary use of this apparatus, without complaint, on a routine basis of five days a week for six to seven months prior to his accident. Thus, even assuming, arguendo, that the removable bar positioned on top of the permanently affixed pull-up frame posed a dangerous condition, on the particular facts presented, this Court finds that claimant assumed the risks inherent in using a removable bar to perform pull-ups, i.e. that, unlike the permanently affixed pull-up bar which was readily available for claimant's use, the removable bar, by its very nature, could fall off the frame and cause claimant injury (see Morgan v State of New York, 90 NY2d 471 [voluntary participants in sporting or recreational activities assume risks of which they are aware or which are inherent in and flow from such participation]; Williams v Clinton Cent. School Dist., 59 AD3d 938 [high school student cheerleader assumed open and obvious risk of falling onto bare wood floor without padding when she engaged in cheerleading routine]; Thomas v Broadway Pilates, Ltd., 52 AD3d 232 [voluntary participant assumed risk of injury in use of exercise equipment]; Kirkland v Hall, 38 AD3d 497 [plaintiff who fell from a horse was held to have assumed the risks inherent in mounting a horse near an obvious incline, including the risk of the horse shifting]; Auwarter v Malverne Union Free School Dist., 274 AD2d 528 [11 year old assumed risk of falling from jungle gym playground equipment]).

This case is similar to the Court of Appeals' finding in Marcano v City of New York, 99 NY2d 548, where it was held that an inmate who fell from a set of parallel bars in the facility's recreational yard had assumed the risk of falling onto the concrete floor. Unlike claimant, the inmate in Marcano was not an experienced athlete and, prior to his injury, he had never used the equipment or any similar equipment nor had he ever observed anyone use this type of equipment. Nonetheless, the Court of Appeals reversed the Appellate Division holding (296 AD2d 43) and found that, as a matter of law, the inmate had assumed the risk of injury when he fell from the bars, striking his head and body on the concrete slab and rendering him a quadriplegic at 34 years old. The facts in this matter present an even more compelling case for finding that claimant assumed the risk of injury when, as an experienced athlete who had routinely used this exercise equipment five days a week for six to seven months, he used a removable bar to perform pull-up exercises and the bar fell on him when he dismounted.

In sum, the Court finds that claimant failed to show any basis upon which defendant may be liable for claimant's injuries.

Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


March 29, 2011

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims

2. All quotations are to the trial notes or audio recording unless otherwise indicated.

3. Sergeant Ewald is now deceased.