Opinion
# 2019-038-103 Claim No. 126971
01-31-2019
RALPH WHEDON v. THE STATE OF NEW YORK
LAW OFFICE OF GARY E. DIVIS By: Gary E. Divis, Esq. LETITIA JAMES, Attorney General of the State of New York By: Thomas Monjeau, Assistant Attorney General
Synopsis
Defendant found liable to claimant for injuries sustained when he was using a table saw while assigned to work in the correctional facility workshop. Defendant breached its duty to properly train the inmate/claimant in how to safely use the saw. Claimant was not reckless and thus his own conduct was not the sole proximate cause of his accident, but because he failed to exercise due care, his conduct was a proximate cause. Liability apportioned 50/50.
Case information
| UID: | 2019-038-103 |
| Claimant(s): | RALPH WHEDON |
| Claimant short name: | WHEDON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126971 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LAW OFFICE OF GARY E. DIVIS By: Gary E. Divis, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Thomas Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 31, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, is seeking compensation for injuries sustained when his left thumb was cut by a table saw at Franklin Correctional Facility (CF) on August 5, 2015. The liability phase of the trial of this claim was conducted on January 30, 2018 in Albany, New York. Claimant testified and presented the live testimony of Jeffrey Brown, the Maintenance Supervisor at Franklin CF, and offered portions of the examination before trial (EBT) testimony of Keith Smith, a retired General Mechanic at Franklin CF, as part of his post-trial submission. Defendant presented no live witnesses, but adopted Smith's EBT testimony at trial. Numerous photographic, documentary and other exhibits were received into evidence. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony and all of the other evidence received at trial and the applicable law and the parties' post-trial submissions, the Court finds that defendant is liable for claimant's injury and that claimant's conduct also contributed to the accident.
At trial, defendant objected to claimant's offer of Exhibit 21, an Occupational Safety and Health Administration (OSHA) publication entitled "A Guide for Protecting Workers from Woodworking Hazards," and Claimant's Exhibit 22, excerpts from a publication entitled "American National Standard Safety Requirements for Woodworking Machinery" from the American National Standards Institute. The Court reserved decision on defendant's objections, and after review of the proferred exhibits, now sustains defendant's objections on the ground that the documents are not properly authenticated. Accordingly, claimant's proferred Exhibits 21 and 22 are not received into evidence.
FACTS
On August 5, 2015, claimant was an inmate at Franklin CF and was assigned to a work program at the carpentry shop in the Maintenance Building. Keith Smith, who was employed by the Department of Corrections and Community Supervision (DOCCS) as a carpenter in the title of General Mechanic, gave claimant a work order to make a bulletin board frame. Claimant had been given training and instruction from Smith in the "safe and proper use" of ten tools used in the carpentry shop, including the table saw and router, on March 31, 2015 (see Defendant's Exhibit O). Claimant testified that while he had a construction background as a roofer, he had not previously used a table saw, and that Smith never inquired about claimant's experience with the tool prior to his training. Smith testified at his EBT that claimant told him that "he was a carpenter and that he used hand tools and power tools and table saws and everything that goes with it" (Claimant's Exhibit 23, at p.34). Claimant testified that his entire training session lasted approximately 90 minutes and that his training on the table saw was "[m]inimal," lasting "less than ten [minutes]," and consisted of Smith showing him how to "turn [the machine] on, turn it off" and explaining to him how to "push a piece of plywood through it with just [his] hands . . . to make a cut and that was it" (T:128-129). Smith testified at his EBT that during the training session, he watched claimant use all of the tools to see if he used them in a safe manner and that claimant looked comfortable doing so. Jeffrey Brown, the Franklin CF Maintenance Supervisor from September 2013 through January 2017, testified that the focus of claimant's training was to provide safety awareness training, which included reading all or parts of the machine's manual, but not to train claimant about how to make every cut on the table saw, although Brown did not know whether claimant was provided with the manual when he was trained. Brown further testified that it would not be possible for instructors to train inmates in every possible operation that could be done with woodworking tools because learning how to use woodworking tools is a "lifelong education" (T:80). Claimant testified that he was not provided with a copy of the manual as part of his training and he did not see a copy until his attorney provided it to him after the commencement of this claim. Smith testified at his EBT that he had never seen the manual before, although a copy would have been on file in the tool room at the carpentry shop (see Claimant's Exhibit 23, at p.32).
All references to the trial transcript are designated by "T".
Claimant testified that he worked in the carpentry shop with Inmate May, who was more experienced in carpentry and who assigned him work. Claimant testified that he started working with the table saw a couple of weeks after his training, and that depending upon the work orders that were received, he would use the table saw "[s]ometimes . . . on a weekly basis" and that "[s]ometimes we'd go maybe three weeks or more without even turning the [table saw] on" (T:131). Smith testified at his EBT that he saw claimant work on the table saw "[p]retty much on a daily basis" (Claimant's Exhibit 23, at p.56). Claimant testified he initially worked the back end of the table saw, receiving wood after it was fed through the saw by May, and that toward the end of July 2015 he started to work the front end of table saw, feeding wood through the saw. Claimant testified that May, not Smith trained claimant in the use of a "push stick" - a scrap of wood used to feed wood into a table saw blade to prevent one's hand or fingers from coming into contact with the rotating blade. Smith testified at his EBT that he thought it was unnecessary to teach claimant how to use a push stick because claimant told him that he was a carpenter (see Claimant's Exhibit 23, at p.37). Claimant testified that whenever he had any work-related questions he would ask May and not Smith or Brown, and that May did not train him or show him how to work the table saw, rather that he learned by watching May work. Claimant testified that on one occasion he asked Smith a question about a project and that Smith answered his question. Claimant testified that he had worked the front end of the saw on five occasions prior to August 5, 2015.
Claimant testified that the work order that Smith assigned him on August 5, 2015 called for cutting a groove - or making a "dado cut" - along the six foot length of a 1 x 4 wood board. Claimant testified that Smith initially told him to use the portable router to make the cut, but later told him to use the table saw after it was discovered that the router was inoperable. Claimant testified that while he had made a dado cut with a router before, which he thought was the best tool for the task, he had never made a dado cut on the table saw before, and that other than providing him with the dimensions of the cut, Smith did not give him directions as to how to make the cut. Claimant testified that making the cut on the table saw "seemed reasonable . . . but I'd never made one before [on the table saw], so I was just kind of doing what Mr. Smith told me to do" (T:156). Claimant testified that the dado cut is "an intricate cut" and that he "didn't have a lot of experience with it, and the only way to gain experience is to practice" (T:212). Smith testified at his EBT that the dado cut could be made either with a router or a table saw. Brown, who was self-taught in woodworking, testified that the cut that claimant was asked to make was known as a "rabbet cut" that was an "easy cut" to make with a table saw (T:65-66), and that a router could have been used to make the cut, but would not have been safer to use than a table saw.
A "dado" is a "rectangular groove cut into a board so that a like piece may be fitted into it" (Webster's II New College Dictionary, 2001, at p.284).
A "rabbet" is a "groove or cut along the edge of a board that receives or interlocks with another piece to form a joint" (Webster's II New College Dictionary, 2001, at p.911).
Claimant testified he notified Smith "more than three times" before August 5, 2015 that the table saw blade was dull and requested that it be replaced (see T:188), but Smith denied his requests. Claimant testified that he observed that the blade was dull and had resin buildup on it on August 5, 2015, that he again reminded Smith that it was dull and in need of replacement, who again declined to replace the blade because it was "too much of a pain in the rear end" (T:187). At his EBT, Smith testified that the blade was "good" and that claimant did not request a new blade that day (see Claimant's Exhibit 23, at p.57). Brown testified that to his knowledge no one had advised him or anyone else in the carpentry shop that there was a problem with the table saw blade, and that any complaints about the blade "would be welcomed" (T:110). Claimant testified that he did not refuse to work on the table saw because of the dull blade because it would risk loss of his work assignment or the issuance of an inmate misbehavior report for failing to obey Smith's direct order to complete the work order.
Claimant testified that Smith left the carpentry shop between 9:30 and 9:45 a.m. and was not present in the carpentry shop when he attempted to make the dado cut later that day. Claimant did not have an opportunity to ask Smith for instruction as to how to make the dado cut before he left, but that he was confident that he could make the cut (see T:184). Brown testified that he was in his office - which was located next to the carpentry shop and had windows that looked into the carpentry shop - when claimant attempted to make the dado cut and that claimant could have asked him if he had any questions about how to make the cut. Claimant testified that he intended to make two "rip cuts" (cuts made with the grain of the wood) along the six foot length of the 1 x 4 board to form the groove, one cut on the narrower side and another cut on the wider side. Claimant testified that he was required to first measure the height and width of the cut, which would be done by adjusting the saw blade to the desired height and then adjusting the rip fence - an adjustable fence to the right of the saw - to the required width. The saw blade was set at approximately one-half of an inch in height and thus would not saw completely through the board on either of the two rip cuts. Smith testified that if he were to make the dado cut on the table saw, he would make multiple passes with the saw on each of the two sides of the board to achieve the desired width of the cut (see Claimant's Exhibit 23, at pp. 52-54).
Claimant testified that he first cut the narrow side of the board by placing the board up against the rip fence so that it was standing vertically on the narrow side of the board, and then pushed the board through the saw blade with his hand, using a push stick at the end to complete the cut. Claimant testified that he then proceeded to make a second cut on the wider side of the board by first laying the wood horizontally along the rip fence. Claimant testified that he then pushed the wood into the saw blade with his left hand and used his right hand to hold down and stabilize the wood, and that approximately two-thirds into the cut he picked up the push stick with his left hand and pushed the board with the push stick. Claimant testified that with approximately 12 to 18 inches left in the cut, he "felt a terrible vibration and then [he] heard a noise," that he "continued to push through" and complete the cut because he was concerned that the wood would kick back and "slap [him] in the face," and that less than two seconds later "[t]he push stick made contact with the blade towards the end of the cut, and the push stick was thrown back at [him] . . . and the thrust of inertia of . . . [the] blade spinning so hard and fast drew [his] hand into the blade" (T:160-161; T:224), lacerating his thumb on the palm side. Claimant testified that there was not enough time to have stopped the table saw by hitting the emergency shutoff switch that was located on the left side of the machine and that he was "in a high risk situation, where [he] didn't want to risk letting go with either hand" (T:237). In an Inmate Injury Report that was completed after claimant's accident, claimant made the following statement: "While using the table saw my push stick kicked back and my thumb hit the blade" (Defendant's Exhibit T).
Claimant testified that there was no blade guard present on the table saw when he was trained and he was never instructed about the use of a blade guard, that there was no blade guard on the table saw the day of his accident and that he had never previously seen a blade guard on the machine. Brown testified that a retractable plexiglass blade guard, as depicted in photographs received into evidence (see Claimant's Exhibit 15), was present on the table saw during most of his tenure at Franklin CF from September 13 through January 2017, and that he personally witnessed the blade guard on the table saw immediately following claimant's accident. Smith testified at his EBT that the blade guard was present on the table saw on August 5, 2015. Photographs of the blade guard depict a plexiglass box or hood that is suspended over the slot for the saw blade and is attached to a levered black arm with a handle (id.). The plexiglass blade guard differs materially from the blade guard that is depicted in the manufacturer's manual, which is opaque and envelops the blade as opposed to being suspended over the slot for the saw blade (see Claimant's Exhibit 4, at pp.1, 7, 12 [Fig. 20]). Claimant testified that he believes that the blade guard that is depicted in the photographs was added after his accident and appeared to be new since the plexiglass was clear, there was little wear and tear on the arm, and the nuts and bolts on the arm were shiny. The table saw was not equipped with a splitter, which is an accessory that stands vertically behind the saw blade and prevents the wood from binding to the saw blade during the cut and causing the wood to kickback. Brown testified that a splitter would not have been used by claimant on August 5, 2015 because he was not sawing entirely through the wood to make the dado cut and that it would be impossible to use a splitter to perform that operation (T:114-115).
A blade guard surrounds the blade of the table saw while permitting wood to be pushed into the saw and is designed to protect from flying wood chips and to warn that one's fingers and hands are nearing the rotating saw blade.
The manual for the table saw that was in use on August 5, 2015 states in pertinent part that the "blade guard assembly provided . . . must be used for all through-sawing operations" and that an operator "must use the saw blade guard [when making a rip cut]" (Claimant's Exhibit 4, at pp.19, 21). The manual states:"Warning: The blade guard and splitter assembly cannot be used when dadoing" (id., at p.22). The manual further states that when making a rip cut, "work should then be fed through the saw blade with the right hand," and that "ripping narrow pieces can be dangerous" (id., at p.21). Claimant testified that no one ever told him about the dangers of making narrow cuts using a table saw. The table saw manual provides that "[f]eatherboards are used to keep the work in contact with the [rip] fence and table . . . and help prevent kickbacks" and must be used "for all non-thru-sawing operations where the guard and splitter assembly cannot be used" (id., at p.23). The manual further provides that when dadoing, an operator must "[u]se pushsticks [sic], hold-downs, jigs, fixtures, or featherboards to help guide and control the workpiece when the [blade] guard cannot be used" (id., at p.22).
Brown testified that OSHA standards were applicable to the table saw and that inmates would not be permitted to use the table saw if it did not comply with OSHA requirements. At trial the Court took judicial notice of OSHA regulations that provide that "[c]ombs (featherboards) or suitable jigs shall be provided at the workplace for use when a standard guard cannot be used, as in dadoing, grooving, jointing, moulding, and rabbeting" (29 CFR § 1910.213 [a][15]). No evidence was adduced at trial about the presence or absence of a featherboard at the carpentry shop on August 5, 2015. OSHA regulations also provide that dull saws "shall be immediately removed from service, before they begin to cause the material to stick, jam or kick back when it is fed to the saw at normal speed," and that "[s]aws to which gum has adhered on the sides shall be immediately cleaned" (29 CFR § 1910.213 [s][1]).
The DOCCS Employee Manual provides that:
"Training supervisors, teachers and instructors shall be responsible for the instruction of inmates in the duties or work to be performed under their direction, for instruction in the safe operation of equipment and supplies, for the standards of the work supervised, and the diligent application of inmates to work and training."
(Claimant's Exhibit 12 [14.1]). The DOCCS Employee Manual further provides that the "responsible employee to whom inmates are assigned for work or training shall comply with the safety, fire and facility rules and all applicable laws, codes, rules, and regulations governing operations of these areas" (id. [14.3]). DOCCS Directive 4064 provides that no inmate will be assigned to use a "potentially dangerous tool or piece of equipment without first being instructed in the safe operation or use by a trained staff member . . . The manufacturer's operating manual or other established safety practices should be followed for this training" (Claimant's Exhibit 19 [DOCCS Directive 4064, III (A)(4)]). A memorandum by DOCCS Deputy Commissioner Daniel F. Martuscello, III that relates to the use of hazardous equipment, including table saws, at DOCCS facilities (Claimant's Exhibit 17), post-dates the accident, and no evidence of its applicability to DOCCS facilities on August 5, 2015 has been offered. DISCUSSION
Claimant argues that defendant's agents were negligent in failing (1) to instruct claimant on how to safely make the dado cut, (2) to provide him with a router to make the cut, and (3) to provide him with a featherboard to more safely make the cut on the table saw (Claimant's Post-trial Summation and Memorandum of Law, at p.2). Defendant argues that claimant was properly trained and that defendant's agents were available to assist him if needed, that claimant was confident in his skills and knew how to properly use the table saw, and that claimant ignored safety rules. Defendant argues that claimant's actions were the sole proximate cause of this accident.
The State, in its operation of correctional facilities, "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, 808 [3d Dept 2005] [internal quotation marks and citations omitted]). However, "[i]t is settled law 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" (Kandrach v State of New York, 188 AD2d 910, 913 [3d Dept 1992]; see also Letterese v State of New York, 33 AD3d 593 [2d Dept 2006]). "It is [further] well settled that the State, through its correctional authorities, is not bound by the Labor Law . . . [but that] the general standards set forth in the Labor Law or the regulations promulgated thereunder may be reviewed in determining the standard of care owed by the State" (Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]; see also Asbery v State of New York, UID No. 2015-029-061, at fn 3 [Ct Cl, Mignano, J., Sep. 8, 2015] [OSHA violations are evidence of negligence in correctional workplace accidents]). The removal of a safety device and the consequent failure to use that safety device may constitute negligence and may lead to liability if such actions were a proximate cause of an accident (see Kandrach, 188 AD2d at 913-914; Callahan v State of New York, 19 AD2d 437, 438 [3d Dept 1963], affd 14 NY2d 665 [1964]). As specifically pertinent here, the DOCCs Employee Manual required Smith to instruct claimant in the "work to be performed under [his] direction" and "in the safe operation of equipment" (Claimant's Exhibit 12 [14.1]).
Claimant testified that he had no experience with a table saw, that he was given only minimal safety training on the use of that tool, that he had not previously made a dado cut on the table saw, and that Smith did not instruct him on how to make such a cut. Smith testified at his EBT that he did not believe that claimant required much training because claimant told him that he was a trained carpenter. Smith also stated during his EBT that claimant had used the table saw in the carpentry shop many times and appeared to be comfortable doing so.
The preponderance of the credible evidence establishes that Smith made limited inquiry into claimant's experience with a table saw and provided minimal training to claimant in the operation of the table saw. The only training claimant received after his initial safety training was acquired on-the-job through claimant's observation of May. On the day of claimant's accident, Smith provided little oversight over claimant's work, he did not ask claimant whether he could make the dado cut with the table saw, and he gave claimant absolutely no instruction in the proper and safe manner to make the cut.
Thus, the Court concludes that Smith breached his duty to properly train and supervise claimant in his use of the table saw that day (see Silverman v State of New York, Claim number 97368 [Ct Cl, Hanifin, J., Dec. 20, 2000, unpublished decision] [State liable for failing to instruct inmate in making rabbet cut on table saw]). The preponderance of the credible evidence further establishes that Smith's failure to train and supervise claimant contributed to his accident and was a proximate cause of his injuries that day.
The Court notes that there was insufficient evidence at trial to prove claimant's alternative theories of negligence. Briefly, claimant presented no expert testimony that the router was better suited to the task of making a dado cut, or that a table saw could not be safely used to make the cut. There was no testimony at trial about the presence or absence of featherboards, in the carpentry shop on August 5, 2015, nor was there any evidence that its absence was a proximate cause of claimant's injuries, and thus liability cannot lie for failing to provide claimant with that accessory. Finally, there was no evidence that claimant's accident was caused by kickback resulting from a dull or dirty saw blade. --------
To the extent that defendant contends that claimant bears full responsibility for the accident because he did not use a blade guard, it is true that the presence of reasonable and adequate safety devices at a work site may excuse a negligent defendant from liability (see Maldonado, 255 AD2d at 631). Here, however, and even assuming that the blade guard was present that day and that claimant intentionally disregarded the device, the preponderance of the credible evidence does not establish that the blade guard was required to have been used. To the contrary, the table saw manual states that the blade guard cannot be used when dadoing (see Claimant's Exhibit 4, at p.22).
Defendant argues that claimant's actions constituted the sole proximate cause of this action, because he "fail[ed] to exercise due care in using a dangerous tool, and [he failed] to abide by the basic and simple safety rules for the use of the machine" (Defendant's Post-trial Brief at 18). In order to constitute a superseding cause so as to excuse the State from liability, "the conduct of the injured party must not be merely negligent, it must be reckless, i.e., in conscious disregard of a fully appreciated risk" (Kandrach, 188 AD2d at 914). Claimant's failure to ask for further direction from either Smith or Brown in view of his own admission that he had not previously attempted such an "intricate cut" (T: 212) on the table saw, and his actions in continuing to push the board through the saw when he encountered difficulty instead of stopping the operation do not rise to the level of recklessness, and thus do not constitute a superseding cause of his injury.
However, the fact that claimant's conduct did not rise to recklessness does not render claimant completely without fault for his injury. "[W]hen an inmate fails to use ordinary care and pursues a dangerous course of conduct, he must take some responsibility for his own negligence" (Carter v State of New York, 194 AD2d 967, 967 [3d Dept 1993]; see also Hicks v State of New York, 124 AD2d 949 [3d Dept 1986]). Here, claimant, who was not an experienced woodworker, attempted to make a difficult cut without asking for guidance, continued to push through when he encountered difficulty instead of stopping the machine, pushed the board with his left hand instead of his right hand and improperly placed the push stick in the path of the rotating saw blade. Taking into account the "special circumstances that confront an incarcerated inmate" (Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006]; see Havens v County of Saratoga, 50 AD3d 1223 [3d Dept 2008], lv dismissed 11 NY3d 846 [2008]), and although claimant testified that he believed he would be sanctioned if he did not accomplish the task, he offered no evidence that he was actually at risk of a disciplinary sanction. Here, the fact of his incarceration and the circumstances surrounding his accident do not relieve him of all fault for his actions (compare Bernard v State of New York, supra [inmate not comparatively negligent because he faced discipline for not complying with direct order]). Thus, the Court concludes that claimant was also negligent, and that his negligence and that of Smith were equally proximate causes of the accident.CONCLUSION
The Court finds that defendant is liable to claimant for Smith's negligence and that claimant's comparative negligence was also a proximate cause of his accident and injury. Liability is apportioned fifty percent (50%) to defendant and fifty percent (50%) to claimant. The Chief Clerk is directed to enter an interlocutory judgment to this effect. Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as practicable.
Let interlocutory judgment be entered accordingly.
January 31, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims