Opinion
# 2015-040-009 Claim No. 120112
02-25-2015
CHAD D. CODY v. THE STATE OF NEW YORK
LUIBRAND LAW FIRM, PLLC By: Kevin Luibrand, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Court finds Defendant 70% responsible for injury to Inmate's eye as Defendant failed to provide safety goggles/glasses to Claimant. Court finds Claimant 30% responsible based on his failure to ask if such glasses were available.
Case information
| UID: | 2015-040-009 |
| Claimant(s): | CHAD D. CODY |
| Claimant short name: | CODY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120112 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | LUIBRAND LAW FIRM, PLLC By: Kevin Luibrand, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 25, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Chad D. Cody, asserts that he sustained an injury to his right eye on April 1, 2010 while working as part of an inmate work crew from Moriah Shock Incarceration Correctional Facility ("Moriah"), located in Mineville, New York. For the reasons set forth below, the Court finds, by a preponderance of the credible evidence, that Defendant is 70% responsible for Mr. Cody's injury. The Court finds that the State failed to maintain a safe workplace because it did not provide Claimant with safety glasses/goggles. The Court also concludes, by a preponderance of the credible evidence, that Claimant is 30% responsible for his injury on account of his failure to exercise ordinary care by asking the correction officer in charge of his work crew if safety glasses/goggles were available.
A bifurcated trial, addressing liability issues only, was held on June 3-4, 2014, at the Court of Claims in Albany, New York. There were four witnesses: Claimant; David Jordan, an industrial maintenance supervisor who oversaw Claimant's work prior to Mr. Cody's incarceration; Correction Officer (hereinafter, "CO") David Holdridge, the CO in charge of Claimant's work crew on the date of his accident; and Sergeant Paul Hutti, the crew sergeant at Moriah on that date, who arranged work for the crews at sites located outside the Moriah campus. Thereafter, the parties requested and were granted additional time to order a transcript and to submit post-trial memoranda. FACTS
Moriah is a minimum security shock incarceration camp, styled after military boot camps, in which certain eligible offenders are offered a structured, therapeutic alternative to traditional prison confinement. After a period of training and acclimatization, inmates are organized into work crews that are allowed to work outside the facility under the supervision of a CO who acts in the role of a drill instructor. The training includes instruction and a video on the safe and proper use of various tools and safety equipment, including safety glasses/goggles (see Exs. 4, 17). Claimant said that he always had access to safety glasses/goggles in any demolition work he did prior to his incarceration, as well as on the other work crews he was assigned to at Moriah before the day of his accident.
On April 1, 2010, Claimant was one of about ten inmates assigned to one such work crew. The crew left Moriah, under the supervision of CO Holdridge, who drove them, by van, to the Essex County Fairgrounds (hereinafter, the "Fairgrounds"). There, the crew was to continue demolition work on a pole barn, a project in which they had been engaged for the past several weeks. It was, however, Mr. Cody's first day as a member of that crew and working on that project.
CO Holdridge has been employed by the Department of Corrections and Community Supervision ("DOCCS") since 1981 and has worked at Moriah since it opened 25 years ago. According to him, work crews typically are made up of from eight to twelve inmates.
Each crew officer is assigned to a particular van and each van is supposed to be equipped with twelve sets of personal protection equipment, such as hard hats, safety vests, and safety glasses/goggles, enough to outfit each member of the work crew. Claimant testified that the safety glasses/goggles were kept in a large bag by the front steps of the van (Tr., pp. 37-38, 47). CO Holdridge agreed that they were usually in a bag by the driver's seat, although sometimes they were stored under the bench seats in the van (Ex. 18, p. 42; Tr., p. 123). At his examination before trial ("EBT") conducted on September 21, 2012, the officer thought that glasses/goggles were in the van on the day of Claimant's accident (Ex. 18, p. 43). The officer said that, generally, he has his van cleaned no less frequently than every Friday at which time all of the equipment is pulled out, examined, any broken or missing items are brought to Sergeant Hutti to be replaced, and the equipment is then put back into bags and stored.
Claimant testified that, as the inmates exited the van upon arrival at the Fairgrounds, he looked for a pair of safety glasses/goggles, not only in the place where the bag usually was located at the front of the van, but also under the bench seats and places where other safety equipment was stored. Mr. Cody said that there were no glasses/goggles in the van (Tr., pp. 79-80). He did not prior to his accident, however, ask CO Holdridge if glasses/goggles were available. The officer said that he would have found Claimant a pair of safety glasses/goggles if he had been asked (Tr., pp. 81-82, 133).
CO Holdridge explained that day's assignment to the work crew, although he felt no need to give specific instructions to individual inmates because, other than Claimant, they already had been working on that project for several weeks. The job for that day was divided into three parts. One group of inmates was tasked with pulling nails from lumber planks that already had been removed from the pole barn and then stacking them. Another group was to continue the work of removing boards from the roof of the pole barn (the outer roofing material already had been removed). The third group was to deposit any broken planks and debris into a front-end loader for disposal.
Accordingly, CO Holdridge testified that he did not instruct Claimant to use a hammer to hit a crowbar.
Claimant grabbed a hammer and a pry bar (a crowbar with a hook shape at one end). Other inmates used tools that included a power Sawzall (a type of reciprocating saw), handsaws, power drills, a crowbar and hammer (Tr., pp. 76, 125). CO Holdridge understood that inmates would be using hammers and crowbars to do their work that day (Tr., pp. 141-142).
CO Holdridge said that he allowed the inmates some freedom to choose which chore they wished to undertake, so long as all of the work got done. Mr. Cody testified that he had done demolition work prior to his incarceration and elected to join two other inmates who were working on the roof. He said that one of the other inmates on the roof was using a straight crowbar and the other had a hammer.
Claimant was the only inmate using a hammer together with a crowbar (Tr., p. 76). He was engaged in separating what had been the main carrier beam of the pole barn, composed of two or three layers of 2 x 10 or 2 x 8 planks that had been nailed together. Mr. Cody was bent over, pounding or striking the pry bar with the hammer, to drive the pry bar in between the layers of planks in order to dislodge them (Tr., pp. 53-55). As he was engaged in this operation, he felt "a numbing, hot sensation" in his right eye (Tr., p. 55). Mr. Cody does not know where the metal came from, but assumes it happened when he struck the bar with the hammer (Tr., pp. 86, 88). He checked to see if the eye was bleeding, which it was not. He asked another inmate to examine the eye, who also failed to see anything amiss (Tr., p. 56). Next, Claimant went to see CO Holdridge, who was nearby, but the officer also saw nothing in Mr. Cody's eye (Tr., pp. 85-86, 130). Claimant said that he went back to work after lunch, but only used the hammer and not the crowbar until the end of that day.
Claimant said that CO Holdridge was sitting on a nearby bank of earth when he went to see him, but the officer said that he was walking among the three groups of inmates supervising their progress. In any event, CO Holdridge stated that he did not see Mr. Cody striking a crowbar with a hammer and, if he had, would have instructed him to make sure he was wearing safety goggles (Tr., p. 129). The officer initially thought that Claimant was throwing something into the front-end loader when he was injured, and that version of events is reflected in the memorandum he wrote to Sergeant Hutti when the work crew returned to Moriah later that day (see Ex. 1). The accident/injury investigation report and the inmate injury report, likewise, reflect the officer's account and state that Claimant was injured while picking up or moving construction debris to the front loader (see Exs. 10, B; see also Exs. 1, 5, 6, and 11). CO Holdridge agreed, however, that he did not witness Claimant's accident or even see what Mr. Cody was doing at the time he was injured (Tr., pp. 152-153). He did not ask Claimant if he had been wearing safety glasses/goggles when he was hurt (Tr., p. 154). Mr. Cody confirmed that he signed the inmate injury report, but reiterated that he was doing demolition work, not loading debris, and that he did not provide the description contained in the document. Moreover, he said that he could hardly read when he signed the document because his vision was blurry.
Claimant said that he knew the risk of hitting a metal hammer on a metal crowbar and that eye protection was required for the type of work he was doing, but that none were available and that none of the inmates wore safety glasses/goggles that day (Tr., pp. 58, 77, 79). CO Holdridge could not recall if the inmates wore safety glasses/goggles and, at least with respect to Mr. Cody, he conceded that he may not have been paying close attention (Tr., pp. 143, 149). At his EBT, CO Holdridge did not know if there was any written policy governing the use of safety goggles, although he also said that they "are always recommended" on a job such as the one at the Fairgrounds, but he did not recall insisting that inmates wear them that day (Ex. 18, p. 63). He also said that Sergeant Hutti "always recommends [that] the inmates wear their safety goggles" (Ex. 18, p. 71). At trial, the officer first said that the job that day probably did not require the use of safety eye wear, but after a review of the tasks performed by the men, conceded that it was possible that safety glasses/goggles were required (Tr., pp. 147-149). Nevertheless, he agreed that he never challenged Mr. Cody for not wearing them (Tr., pp. 150-151). Sergeant Hutti, by contrast, at first said unequivocally that safety glasses/goggles are required for demolition work, but later hedged, saying that work involving hammers and crowbars required them only in some circumstances (Tr., pp. 168, 171). At his EBT, conducted on September 21, 2012, however, Sergeant Hutti asserted definitively that inmates were mandated to wear safety glasses/goggles when they were engaged in tearing down buildings (Ex. 19, pp. 32-33). In any event, he said that it was CO Holdridge's determination to make, and the officer's responsibility to enforce, if he thought inmates needed to wear them (Tr., pp. 168, 170- 171).
Sergeant Hutti has been employed by DOCCS for 29 years.
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When the work crew returned to Moriah, Claimant was examined in the infirmary and subsequently transferred to Moses Ludington Hospital in Ticonderoga, New York, where it was determined that no foreign body was in the eye. The next day, Mr. Cody was examined again in the Moriah infirmary. On that occasion, a small sliver of metal was detected in the right eye. Claimant was referred to Albany Medical Center where the sliver was removed surgically (see Ex. 5). Mr. Cody said that the piece of metal cauterized the eyeball so that no fluid leaked from his eye, but the metal protruded enough from the surface of the eye that it scratched the inside of his eyelid every time his eye moved and whenever he blinked. Mr. Cody testified that he had never suffered any injury to his eyes prior to the date of this accident, nor did he wear corrective lenses. LAW
To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, [3d Dept 2011]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., Jun. 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
When the State "acts in a proprietary capacity" by engaging in activities traditionally performed by private entities, it is subject to the same principles of tort law that govern those private actors (Miller v State of New York, 62 NY2d 506, 511-513 [1984]; see Sebastian v State of New York, 93 NY2d 790, 793-794 [1999]). The Court concludes that Defendant's establishment and supervision of demolition work crews, like the one Claimant was attached to, constitutes such a proprietary function.
Inmates participating in work programs are not State employees and the statutory provisions of the Labor Law do not cover Claimant, nor do they bind Defendant, in connection with such activities (Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]; D'Argenio v Village of Homer, 202 AD2d 883, 884 [3d Dept 1994]; Garcia v State of New York, UID No. 2009-039-160 [Ct Cl, Ferreira, J., Dec. 24, 2009]). Moreover, the State 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 [1985]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]).
Nevertheless, the State does have a common-law duty to provide inmates engaged in work programs under the auspices of its correctional facilities with a reasonably safe workplace, reasonably safe machinery and equipment, as well as sufficient warnings and instruction for the safe operation of the work and equipment (Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; Hood v State of New York, UID No. 2010-013-504 [Ct Cl, Patti, J., June 1, 2010]).
At the same time, inmates are required to exercise ordinary care and, when they fail to do so and pursue dangerous courses of conduct, they must take some responsibility for their own negligence (Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]; Carter v State of New York, 194 AD2d 967 [3d Dept 1993]). The special constraints under which an inmate operates also must be considered, however, including the risk of potential disciplinary action if he or she challenges an assigned task (Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006]; Lowe v State of New York, 194 AD2d 898, 899 [3d Dept 1993]). DISCUSSION
Upon consideration 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 met his burden, and established, by a preponderance of the credible evidence, that Defendant was negligent in connection with the injury he sustained to his right eye while a member of a Moriah work crew demolishing the pole barn at the Fairgrounds. At the same time, as discussed below, the Court further determines that Claimant must bear some culpability for his accident.
As a preliminary matter, the Court notes that each witness provided generally sincere and forthright testimony. Nevertheless, the witnesses were not equally persuasive. The Court found Claimant's testimony and recollections to be more vivid, concrete, and worthy of credit than those of CO Holdridge. By contrast, the officer's recollections were markedly more hazy and tentative. He was uncertain whether or not safety glasses/goggles were required for the demolition work being done that day. He could not recall if the inmates were wearing such eye wear, or even if he instructed them to wear them. CO Holdridge said that he was circulating among the inmates, yet he did not seem to recall which of the three tasks Claimant was working on. CO Holdridge filed a report stating that Claimant was injured while loading wood debris into a bucket loader. However, the officer agreed that he did not observe Claimant's accident, or even learn about it until Mr. Cody came to him. That account appears to be the source for several similar descriptions in the facility records. Thus, the Court credits and adopts Claimant's testimony that he was injured while working to separate the rafter beams of the pole barn, that he was using a hammer and pry bar to do so, that there were no safety glasses/goggles in the van, and that he and the other inmates were not wearing such eye wear that day. CO Holdridge did not require that they do so. The Court also takes judicial notice of the fact that April 1, 2010 was a Thursday. According to CO Holdridge's testimony, the equipment in his van may not have been examined and inventoried for nearly a week, since the preceding Friday, the day upon which he habitually checked the equipment. Thus, the officer's belief that safety glasses/goggles were in the van may have been based upon information that was nearly a week old. It also may help explain why no safety eye wear was in the van when Mr. Cody looked for it.
The Court concludes that the State did have a common-law duty to provide Claimant, as an inmate engaged in a work program, with a reasonably safe workplace, including reasonably safe equipment, as well as sufficient warnings and instruction for their safe operation. Defendant breached that duty, however, because the safety measures taken were not "reasonable and adequate under the circumstances"(Maldonado v State of New York , supra at 631). The State failed to provide the inmates with safety glasses/goggles to wear while they engaged in the demolition work they did that day.
While Claimant was separating the planks, he was injured in his right eye. It is true that Mr. Cody assumed, but was not certain, that the injury occurred when he struck the bar with the hammer. However, "[t]he law does not apply [an] unreasonable ... requirement of certitude" (Gramm v State of New York, 28 AD2d 787, 788 [3d Dept 1967], affd 21 NY2d 1025 [1968]. Claimant was not obliged to establish the precise place or manner where, or in which, he was injured (Derdiarian v Felix Contr. Corp., supra at 315; Munno v State of New York, 266 AD2d 694 [3d Dept 1999]; Gramm v State of New York, supra at 788; PJI 2:70). Even if he does not know exactly how his eye came to be injured, it is beyond dispute that it happened while he was engaged in the demolition work. Thus, the Court concludes that Defendant's failure to provide safety glasses/goggles for Mr. Cody to wear was a substantial factor in the events that caused Claimant's injury.
Finally, the Court determines that Claimant must bear some responsibility for his accident. Mr. Cody had prior experience in demolition work. He understood the need to wear personal safety equipment, in this case specifically glasses/goggles, while engaged in this work. He received training at Moriah which underscored that need. Yet, he did not ask CO Holdridge if safety glasses/goggles were available when he could not find them in the van. The Court already has concluded that no safety eye wear was in the van. It is possible, however, that CO Holdridge could have requisitioned safety glasses/goggles from Moriah and had them delivered to the Fairgrounds, or otherwise procured them, if Mr. Cody had asked for them. He also might have halted the work in their absence. Thus, Claimant cannot avoid some measure of responsibility for failing to exercise ordinary care while pursuing a dangerous course of conduct. At the same time, the Court takes "into consideration the special circumstances that confront an incarcerated inmate in assessing" any comparative negligence owing to the fact that the inmate must choose between following orders, or risking disciplinary sanctions (Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006]). Moreover, the Court notes that, even after Claimant's injury, CO Holdridge failed to ask if Mr. Cody was wearing safety eye wear and did not instruct and insist that he do so. Accordingly, the Court apportions 70% of the liability for this accident to Defendant and 30% to Claimant.
CONCLUSION
By a preponderance of the credible evidence that was presented, the Court finds Defendant 70% responsible for the injuries sustained by Claimant in this accident and Claimant 30% responsible.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter interlocutory judgment accordingly. The Claim will be scheduled for trial on the issue of damages as soon as practicable. Instructions concerning the creation of a discovery schedule will be provided under separate cover.
February 25, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims