Opinion
# 2014-030-013 Claim No. 118330
08-06-2014
CARLOS FIGUEROA v. THE STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. BY: BRIAN DRATCH, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: SUZETTE CORINNE RIVERA ASSISTANT ATTORNEY GENERAL
Synopsis
After liability trial, doctrine of res ipsa loquitor applied to hold State liable. Ventilation panel installed by State was under State's exclusive control, claimant did not in any way impact the exhaust panel, but rather was doing his assigned job as a cook at his assigned workplace when it struck him, and such panels do not fall from their location as a face piece of the exhaust system in the absence of negligence.
Case information
| UID: | 2014-030-013 |
| Claimant(s): | CARLOS FIGUEROA |
| Claimant short name: | FIGUEROA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118330 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | THOMAS H. SCUCCIMARRA |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. BY: BRIAN DRATCH, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: SUZETTE CORINNE RIVERA ASSISTANT ATTORNEY GENERAL |
| Third-party defendant's attorney: | |
| Signature date: | August 6, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Carlos Figueroa alleges that defendant's agents at Arthur Kill Correctional Facility failed to provide him with a safe workplace and allowed a dangerous condition to exist resulting in his injury on February 27, 2010. More specifically, he alleges that at approximately 7:10 a.m. on that day he was at his regularly assigned job in the kitchen of the correctional facility, when an exhaust vent hood fell on him, striking the back of his head and neck causing him injury.
This decision relates only to liability, after a bifurcated trial of the matter and submission of post-trial memoranda of law.
In support of his claim, in addition to his own testimony Mr. Figueroa offered the testimony of Lieutenant Craig Ruda - a sergeant at the time of the accident - and several documentary exhibits including a photograph of the scene. [Exhibits 1 - 4]. Defendant cross-examined the witnesses, called Correction Officer Joseph Aitken, and offered several documentary exhibits as well. [Exhibits A - D].
Mr. Figueroa testified that on February 27, 2010 he had been incarcerated at Arthur Kill for 7 to 8 years, and had worked in the mess hall for the same period, cooking breakfast and lunch for the population. As was routine, when he first arrived in the kitchen at approximately 5:30 a.m. that morning, the lights were all on, and the exhaust vent had been turned on as well. The assigned correction officer was the one who turned on the lights and the vent. Breakfast was prepared and served without incident. Just as he was putting the potatoes on the skittle [sic] getting them ready to cook for lunch, however, the exhaust vent cover panel above the stove "fell on top of [him]." [T-19]. He said that it went "sideways. It hit me, and then it threw me to the floor, and then the cover hit the table, and then it hit . . . me right here and in the leg." [T-22].
All quotations are to the trial transcript unless otherwise noted. Here [T-19].
Mr. Figueroa said Officer Aitken "heard the noise" and came to investigate. [T-22]. Officer Aitken called the Sergeant, who then sent claimant to the infirmary. Claimant was given first aid at the infirmary, and returned to work. Explaining that he does not read English, nor does he speak it well, and that the nurse who examined him did not speak Spanish, Mr. Figueroa stated that the inmate injury report as to the cause of the accident incorrectly stated that he had told the nurse that a pot fell on his head. [See Exhibit 2]. He did not write anything on the inmate injury report himself other than his signature. [Ibid.].
Mr. Figueroa identified photographs showing where the hood vent cover fell from, the hole that remained after it fell, and the cover itself. [Exhibits C and 3]. From the photographs it can be seen that the panel is fairly large, although no testimony was elicited as to the panel's dimensions. The dimensions are, however, described in the memorandum from Correction Officer Aitken to Sergeant Ruda, as a "stainless steel panel" approximately 3 feet x 4 ½ feet. [Exhibit A]. Mr. Figueroa testified that the panel could not be reached by a person standing on the ground, and that he had never touched the panels or seen any other inmates or civilian cooks touching the panels. He said the panels are "maybe eight feet or nine feet" from the ground. [T-25].
Mr. Figueroa also testified that in November or December of 2009 the same or a similar panel had fallen, and the maintenance department at Arthur Kill fixed it, placing it back up over the stove.
Lieutenant Craig Ruda, who was assigned to housing at Arthur Kill in 2010, testified briefly. He recalled receiving a telephone call from Correction Officer Aitken about an accident in the mess hall. When he arrived at the scene the metal panel was off to the side on the floor, and the officer and claimant were present. He sent Mr. Figueroa to the infirmary.
Lieutenant Ruda's memorandum to his superior provides in pertinent part "upon investigation it appears that the panel was not properly secured. The panel has a lip on the bottom which inserts into a tab of the facade above the oven. It appears the lip was not properly seated inside of the tab." [Exhibit 1]. He said he drew this conclusion from his observation of the panel on the floor, and his observation of where the panel came from. He confirmed that it would be maintenance personnel at Arthur Kill who would perform any necessary repairs, but did not know if there had been any prior problems with the exhaust panel.
On cross-examination by the assistant attorney general Lieutenant Ruda agreed that he did not perform any actual investigation of the panel physically, and repeated several times that his primary concern was ascertaining whether the inmate had been assaulted or not. He assured himself that there had been no assault by speaking with the correction officer, who said there was no one in the area. Although he wrote that the lip [of the panel] was not properly seated inside of the tab, he responded that "no" he had not "personally observed that" when asked by the assistant attorney general, again repeating that his main concern was that there was no assault. Presumably this was meant to convey that he did not physically pick up the panel and test where it should be placed: a process that would seem unnecessary given that he stated that this written conclusion was based upon what he could see of the panel on the floor and what he could see about where the panel came from.
It is noted that Lieutenant Ruda acknowledged on direct examination by claimant's attorney that he wrote in the contemporaneous memorandum [Exhibit 1] that "it appears the lip was not properly seated inside of the tab," and that "It - - well, it's like I said, if I wrote it, that's what it is. I can't recall. It's been so long since I've been there. To remember exactly how that sat in, but that's - - if that's what I wrote, that's what I - - . . . At the time." [T-45-48]. Asked whether the writing was an accurate representation written near the date of the incident the witness stated "Yeah." [T-46].
No other witnesses testified on claimant's direct case.
Correction Officer Joseph Aitken testified that as the kitchen officer in February 2010, it was part of his job to secure the area, supervise the inmates, issue utensils needed for the work day, and to "make sure it was a safe environment for the inmates, myself and the civilian staff to work." [T-54-55]. When he first reported to his post at approximately 5:10 a.m., he would turn on the lights, turn on the overhead exhaust unit, and do a fire and safety check. After the inspection, he would pick up the inmates. Looking at the daily safety checklist form, Correction Officer Aitken agreed that the inspection report for February 27, 2010, does not show that there were any problems with the equipment in the kitchen that day. [Exhibit D]. He explained that had he noticed anything awry with the exhaust panel he would have noted it in the comments section (since there is no place on this very general form to check off that there has been an inspection of the exhaust system, or indeed any other specific equipment found in a kitchen). [Ibid.]. He did not describe what any inspection entailed.
Correction Officer Aitken testified that approximately 5 to 6 months earlier, a civilian cook made him aware of a different exhaust panel having fallen, but he had never heard any complaints about this particular panel. He confirmed that the exhaust panels are above the "skittle cookers" where Mr. Figueroa was working, and cannot be reached by a person standing on the ground. The underside of the exhaust system can be reached for replacing filters, but the panels cannot be reached. The panels are "facing panels" which "cover up the motors and the pulleys and the belts that are inside this unit." [T-66]. He agreed that the panels are supposed to stay attached to the ventilation system. He "believe[d]" that the outside of the panels are wiped down monthly by inmate porters. [T-68].
On February 27, 2010 he heard a metallic sounding crash, turned around from where he was replacing utensils in the cabinet after the breakfast meal, and saw that a panel had hit the ground and saw Mr. Figueroa holding his head. He called his supervisor and the medical unit and went to look at the panel. The panel was moved by the civilian cooks into their locked office. He explained that since it was a weekend day, and maintenance would not be available until Monday, the panel needed to be secured.
Officer Aitken completed a memorandum directed to Sergeant Ruda, which essentially repeats the testimony he gave at trial. [See Exhibit A].
Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Creation of a dangerous condition constitutes actual notice. Assuming that the State did not create a dangerous condition, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). With respect to constructive notice, any "defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citations omitted)." Gordon v American Museum of Natural History, supra, at 837.
When inmates participate in prison work programs, the State's duty generally is to provide a safe workplace, including " 'reasonably safe machinery and equipment with which to work and adequate warnings and instructions for the safe operation of such machinery and equipment' (Kandrach v State of New York, 188 AD2d 910, 913)." Martinez v State of New York, 225 AD2d 877, 878 (3d Dept 1996). The mere happening of an accident does not create a presumption of negligence on the part of the State.
Under certain circumstances, however, negligence is inferred, under the doctrine of res ipsa loquitur, characterized as "a brand of circumstantial evidence." Morejon v Rais Constr. Co., 7 NY3d 203, 211 (2006). For the doctrine to apply to a case: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the claimant. Dermatossian v New York City Tr. Auth., 67 NY2d 219 (1986). "A claimant's reliance on res ipsa loquitur does not change the applicable burden of proof: preponderance of the evidence. Thus claimant need not conclusively eliminate all other potential causes of the injury, but only establish that the evidence supporting the application of res ipsa loquitur provides 'a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence'." Banks v State of New York, 15 Misc 3d 1144(A) (Ct Cl 2007), quoting Kambat v St. Francis Hosp., 89 NY2d 489, 494 (1997).
As to how to draw the conclusion that an adverse event would not occur in the absence of negligence, the fact finder is entitled to draw upon past experience. See e.g., NY PJI 3d 2:65. Thus, for example, "no expert testimony was needed for the jury to conclude that the sudden dislodging of a crypt cover [that fell on a visitor] would not happen without someone's negligence . . ." Diovisalvo v Woodlawn Cemetery, 241 AD2d 348 (1st Dept 1997). Likewise, a door that has been mounted on hinges would not generally fall when it is opened in the absence of negligence. Brink v Anthony J. Costello & Son Dev., LLC, 66 AD3d 1451 (4th Dept 2009).
As an initial matter, defendant argues that at the close of his proof, claimant failed to establish a prima facie case, and renewed its trial motion to dismiss upon which decision was reserved. Such motion is denied, as the Court finds that claimant marginally presented a sufficient prima facie case at the close of his proof, viewing it in the light most favorable to claimant.
Based upon all the proof presented, defendant also argues that there is no basis for State liability because there was no notice - actual or constructive - of any dangerous condition and that the State did not create any dangerous condition.
Claimant argues that the doctrine of res ipsa loquitur should apply, given that the panel from the exhaust system was under the exclusive control of the defendant, that the claimant did not in any way impact the exhaust panel, but rather was doing his assigned job at his assigned workplace when it struck him, and that such panels do not fall from their location as a face piece of the exhaust system in the absence of negligence.
Upon review of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established an adequate basis for the state's liability by a preponderance of the credible evidence. Indeed, the Court finds that there are alternate bases for finding liability, based upon the totality of the evidence.
Thus, as to notice, the Court finds that the evidence suggests that the State created the condition by inadequate installation of the panel by its maintenance staff, as there is no evidence that anyone other than State personnel was responsible for the installation and maintenance of the exhaust panel. Alternatively, the evidence also suggests that there was constructive notice of the propensity for such panels to fall without warning, since such a panel - or the specific panel if claimant's testimony is credited - had fallen some months previously, and despite such a fall there does not seem to have been an adequate inspection of the area made by State personnel, to assure that the workplace was safe. More clearly, however, and in the absence of notice or better proof that the State created the condition, the Court finds that the doctrine of res ipsa loquitur applies.
The Court agrees that the claimant established that he had no part in making the panel fall, and that it was in the exclusive control of defendant, as shown by its location above the reach of those on the ground, and its maintenance by State personnel. That inmates were directed to wipe the outside of the panels down monthly under the direction of State personnel does not mean that such control is removed. cf. Nikollbibaj v City of New York, 106 AD3d 789, 790 (2d Dept 2013). The Court also finds on the basis of common sense and general experience that a large metal panel meant to be installed to rest permanently in the lip of the ventilation hood as described, would not fall on its own in the absence of negligence. Diovisalvo v Woodlawn Cemetery, 241 AD2d 348; Brink v Anthony J. Costello & Son Dev., LLC, 66 AD3d 1451.
The plaintiff was injured when a portion of a magnetic lock fell from a door or its frame in a hallway of the facility of the defendant Elmhurst Hospital, and struck her. After instruction on the doctrine of res ipsa loquitur among other precepts, it returned a verdict on the issue of liability in favor of the defendants. The Court said " a valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the jury, since a rational person could have concluded that the door and frame from which the magnetic lock had fallen were accessible to and used by numerous persons and, hence, were not instrumentalities within the exclusive control of any of the defendants."
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Based on the foregoing, the Court finds that the State of New York is 100% responsible for the happening of this accident.
The Clerk of the Court is directed to enter interlocutory judgment in accordance with this decision. Trial on the issue of damages shall be held as soon as practicable.
August 6, 2014
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims