Opinion
# 2013-048-527 Claim No. 119216
06-26-2013
JAN DeGRAFF v. THE STATE OF NEW YORK
Synopsis
Defendant found 75 percent liable for injuries sustained when former inmate cut his hand on sharp metal bracket left exposed during radiator replacement project in housing cubicle, and Claimant found 25 percent liable for contributory negligence.
Case information
UID: 2013-048-527 Claimant(s): JAN DeGRAFF Claimant short name: DeGRAFF Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119216 Motion number(s): Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: GARY E. DIVIS, ESQ. LAW OFFICES OF THERESA J. PULEO Defendant's attorney: By: Michael G. Donnelly, Esq. Third-party defendant's attorney: Signature date: June 26, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Jan DeGraff, seeks to recover damages for injuries he sustained to his right hand allegedly caused by Defendant's negligence while Claimant was an inmate at Mid-State Correctional Facility (Mid-State) under the supervision of the Department of Correctional Services (DOCS). The liability and damages portions of the case were bifurcated, and a trial was held in Utica on January 3, 2013 on the liability phase only, to which this decision pertains. Claimant testified on his own behalf and called Correction Officer Lupinski. Post-trial submissions from both Claimant and Defendant were received and considered by the Court. A total of 21 exhibits were admitted into evidence upon consent of Counsel.
DOCS is now known as the Department of Corrections and Community Supervision (see L 2011, ch 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Mid-State is a medium security prison located in Marcy, New York. Claimant was housed in room 21 of housing unit 1D, along with three other inmates. Each inmate occupied a portion of the room, with their space roughly divided in part by their lockers. Claimant estimated the size of his cubicle to be approximately four to six feet wide and nine feet long, with room enough only for a bed, chair and locker. Claimant's bed was located at the far left of the cubicle, with the head of the bed against the outside south wall. The chair was placed to the right of the head of his bed and directly in front of this outside wall. This wall contained a window, and the chair was positioned between the bed and the window. The locker was placed approximately two feet to the right of the chair.
Prior to Claimant's injury, an upright cast iron heating radiator was located under the window. During the summer of 2009, DOCS retained a private contractor to remove the cast iron radiators in the housing unit and replace them with new baseboard radiators. The new baseboard radiator in Claimant's cubicle was to be installed in the location on the wall occupied by the cast iron predecessor, and new piping was required to service it. The work in the housing unit was done in three stages. First, the contractor removed the cast iron radiators and the piping that serviced them. Second, the contractors installed a backplate, which functioned as a large bracket to hold the new baseboard heating unit and its exterior cover. Third, the contractors installed the new piping and heating units, including the exterior cover that was installed over the backplate. The backplate consisted of a piece of sheet metal affixed flat against the outside wall with a 90 degree bend at the top so that a portion of the metal protruded from the wall several inches to form a flange in the shape of an upside down "L." While most of this protruding flange was perpendicular to the outside wall, the edge was bent downward approximately 45 degrees, and was razor sharp. Prior to the start of scheduled work in the inmates' cubicles on a given day, the inmates were directed to remove all property from the cubicle for the day and place it in the day room. After the workers removed their tools and left for that day and the room was cleaned by inmate porters, the occupants were directed to return to their cubicle with their property. The inmates were not relocated overnight. This process was repeated until that particular stage of the work was completed in a given room. Once that stage of work was complete in one room, the contractors would move to the next room. Consequently, once a particular stage of work was completed in a particular room, days might pass before the next stage of work was commenced in that room.
By early July 2009, the contractors had removed the old radiator and piping in the area of Claimant's cubicle, and had installed the backplate for the new radiator. Because the new baseboard radiator unit, piping, and cover plate had not yet been installed, the backplate was left exposed. Claimant was aware of this work and specifically, that the backplate had been installed. Roughly two weeks later, at approximately 5:00 P.M. on July 27, 2009, Claimant had returned to his cubicle from his work assignment and was changing clothes in preparation for the evening meal. A net bag for laundry was draped over the chair, positioned so that the opening of the bag was behind the back of the chair. The chair was in front of and in close proximity to the backplate. While sitting in the chair, Claimant turned to his left side and reached over his left shoulder with his right hand to place a shirt in the laundry bag. As he did this, his hand got caught on the metal backplate, which cut deeply into his index finger to the bone, and also cut his right middle finger less deeply. Claimant reported his injury to Correction Officer Lupinski, who reported it to Sergeant Kane. Claimant was directed to the infirmary, where his wound was cleansed, and then sent to St. Luke's Hospital where he received sutures. Officer Lupinski and Sergeant Kane inspected Claimant's cubicle and observed blood on the backplate and on the floor below the backplate. Sergeant Kane's report, dated the day of the accident, states, in part that the backplate "has a very sharp edge & the wound is consistent with what [Claimant] DeGraff stated" (Claimant's Exhibit 5).
Correction Officer Lupinski has 25 years of experience as a correction officer with DOCS. As a housing officer, he would complete a Daily Safety Checklist of certain specified conditions in his assigned area. This would be performed once on each of three daily shifts. If a deficiency is noted requiring repair, the housing officer would submit a work order to the maintenance department, and the work order would be noted in the daily housing log book. The housing officer, however, was not assigned the responsibility of inspecting ongoing construction work, and Officer Lupinski was not responsible for inspecting the construction work undertaken to replace the radiators. Rather, a separate officer would be assigned to oversee the construction work. Officer Lupinski testified that a Fire and Safety Officer is responsible for fire and safety equipment and reports of injuries at the facility, and that a report of deficient conditions or equipment prepared by the Fire and Safety Officer is filed directly with the maintenance department. However, Officer Lupinski did not know if such an officer was responsible for overseeing the radiator replacement project. According to Officer Lupinski, the housing officers inspected the rooms after the contractors left each day to ensure that tools, materials or waste metal were not left behind.
The day after Claimant's injury, Lieutenant Goppert, a facility watch commander, reported to Captain Weber, a captain responsible for day-to-day operations, that she and Sergeant Kane discussed submitting a work order to correct the hazard, but that she was advised that the backplate was necessary to mount the replacement radiator (see Claimant's Exhibits 8, 9 and 10). The Accident/Injury Investigation Report prepared by the Fire and Safety Officer dated August 3, 2009 provides, "Fire/Safety Officer on duty not notified. Sgt Kane and Lt Goppert submitted a work order. Inmate was taken to outside hospital - 6 stitches" (Claimant's Exhibit 7). In the end, while facility staff did not take action to cover the exposed backplate pending completion of the project, Claimant's friends covered the sharp edge of the backplate with tape and moved his locker in front of it.
Claimant does not allege that the construction work was performed negligently. Rather, Claimant alleges, among other things, that DOCS was negligent in directing him to occupy his cubicle that was not in a reasonably safe condition, and failed to take any steps to protect him from the dangerous condition posed by the sharp metal backplate that cut his hand. To prove a prima facie case of negligence, Claimant must establish the existence of a duty, the breach of the duty, and that the breach of the duty was a proximate cause of the damages sustained (see Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981], rearg denied 54 NY2d 831 [1981]). In this case, Defendant is obligated to maintain its "property in a reasonably safe condition in view of all the circumstances" (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]). Defendant is not, however, an "insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed, lv dismissed 97 NY2d 649 [2001]). Thus, while Defendant has a duty to maintain its property in a reasonably safe condition, the burden is upon Claimant to show that Defendant breached that duty. In a premises liability case such as this, Claimant must prove that there was an unsafe or dangerous condition on the premises, and that Defendant either created the dangerous condition, or that Defendant had actual or constructive notice of a dangerous condition and failed to take appropriate remedial action (see Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]).
Whether an unsafe or dangerous condition exists in the first place "depends on the peculiar facts and circumstances of each case . . ." (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks and citation omitted]). The question here is whether the Defendant failed in its duty to keep Claimant's cubicle in a reasonably safe condition. After hearing the witnesses testify, and observing their demeanor as they did so, the Court fully credits the testimony of the two witnesses. Officer Lupinski's testimony was clear, concise, not hesitant, and very convincing. Claimant's testimony was very earnest and, although he occasionally answered a question in a manner which indicated that he did not understand the question, his testimony was also convincing, and not controverted. Moreover, Claimant's testimony about his accident is also supported in parts by the documentary evidence and the testimony of Officer Lupinski. Indeed, there appears to be no material factual dispute. Claimant's cubicle was small, and its dimensions necessarily placed Claimant in close proximity to the backplate. Indeed, the only practical location for Claimant's chair was to the right of his bed and in front of the backplate. It is fairly reasonable to suspect that Claimant might accidentally bump into the sharp edge. The Court concludes that the sharp backplate made the small cubicle not reasonably safe. Moreover, although DOCS directed Claimant to vacate the cubicle so that the backplate could be installed, DOCS took no steps to shield the sharp edge or provide Claimant with temporary alternate housing. Instead, they directed him to occupy a cubicle that was not reasonably safe under the circumstances. In the Court's view, the risk that an inmate could sustain an injury due to a sharp protruding flange was reasonably foreseeable, especially in light of the location of the flange on the backplate and the setup of Claimant's cubical in this case (see Buckley v Sun & Surf Beach Club, 95 NY2d 914, 915 [2000]). As a result, the Court concludes that Claimant has met his burden to demonstrate that Defendant breached its duty to provide Claimant with reasonably safe living quarters.
Even if it were determined that Defendant did not create the dangerous condition because it did not install the backplate, the Court nevertheless concludes that it had constructive notice of the condition. Here, there is no dispute that DOCS staff oversaw and inspected the work while it was being done, and inspected the rooms and directed porters to clean them after the workers left for the day. Indeed, Officer Lupinski testified that the housing officers were responsible for inspecting the general safety conditions in the housing units, and also responsible for making sure that no tools or other items were left by the workers that might constitute a danger or be considered contraband. In the case of Claimant's room, the sharp metal backplate would be a glaring addition to the cubicle, and especially so while Claimant's property was located in the day room and the cubicle was inspected and cleaned. Nevertheless, even after Claimant re-occupied his cubicle, the sharp backplate was prominently visible under the window for several weeks (see photographs contained in Claimant's Exhibits 11 and 19). Thus, the Court concludes that Claimant demonstrated that Defendant had constructive notice of the unsafe condition because it was "visible and apparent and . . . exist[ed] for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Therefore, Defendant breached its duty to Claimant by failing to remedy the unsafe condition.
Furthermore, through his testimony and documentary evidence, Claimant has also met his burden to prove that the unsafe condition was a proximate cause of his injury. Here the sharp edge of the backplate clearly cut into Claimant's hand as he was performing a routine daily task, requiring a trip to the infirmary and then to the hospital for stitches. However, Defendant alleges that Claimant was responsible for his injuries because his own conduct was careless (see also Answer, paragraph 6). Along these lines, generally, a defendant's duty to maintain its premises in a reasonably safe condition will not be obviated by the open and obvious nature of a dangerous condition (see Anton v Correctional Med. Servs., Inc., 74 AD3d 1682, 1683 [3d Dept 2010]). An open and obvious risk is one that is "in plain view and readily observable to someone employing the reasonable use of his or her senses" (Spannagel v State of New York, 298 AD2d 687, 689 [3d Dept 2002]). In such a case, the open and obvious nature of the condition will not be fatal to a claimant's case, but will be relevant to the issue of his or her comparative negligence (see Headley v M&J L.P., 70 AD3d 1312, 1313 [4th Dept 2010]). While a claimant has the duty to use reasonable care to observe his or her surroundings and will be "bound to see what by the proper use of her senses she might have seen" (Weigand v United Traction Co., 221 NY 39, 42 [1917]), even if a claimant is aware of an open an obvious defect, a defendant's duty to maintain the premises in a reasonably safe condition will not be obviated "where the [defendant] has reason to expect or anticipate that a person's attention may be distracted, so that he [or she] will not discover what is obvious, or will forget what he [or she] has discovered, or fail to protect himself [or herself] against it" (Spannagel v State of New York, 298 AD2d at 689 [internal quotation marks and citations omitted]; see also Jones v Shamrock of Ithaca, Inc., 78 AD3d 1299, 1299-1300 [3d Dept 2010]). Ultimately, the question of contributory negligence comes down to whether a reasonable person would have acted as Claimant did in the situation under consideration (see Sundt v New York State Elec. & Gas. Corp., 103 AD2d 1014, 1015 [4th Dept 1984], appeal dismissed 63 NY2d 771 [1984]).
Specifically, Defendant argues that when Claimant reached around his body to place his shirt in his laundry bag, he did so without looking. However, under normal conditions in his cubicle, doing so would not expose Claimant to serious injury. At most, he would have skinned his knuckles on the old radiator or the wall, neither of which would have presented an unsafe condition in this context. Routine daily activities require people to move limbs without looking directly at them at all times. Daily life requires us to reach for things without always looking at our hands, and we certainly take steps without always looking at our feet. At these times we are aware of what our hands and feet are doing in a general sense, but we may not be aware of the micro conditions being encountered at each and every moment. This is not unreasonable. However, it might be considered unreasonable when we are aware of a dangerous condition or encounter one that is open and obvious. Then, the dangerous condition requires us to act more cautiously or deliberately to avoid injury.
Here, Claimant concedes that he was aware of the metal backplate, though he did not previously touch it. Nevertheless, metal edges and corners are commonly known to be sharp and formidable dangers to our exposed skin, not to mention loose fitting clothing. Claimant, an automobile mechanic, would certainly be familiar with such dangers. There is insufficient evidence to conclude whether Claimant simply forgot that the backplate was there or else he did not realize how close he was to it when he reached behind his chair for the laundry bag. Thus, while his movements were reasonable, undertaking them in close proximity of the dangerous condition was not. On the other hand, it is also reasonable that he would have forgotten about the danger after living with it for only two weeks. Consequently, regardless of whether Claimant forgot about or misjudged the danger, he must share in the liability for his injuries. In cases such as this, an equal split of liability is not appropriate. Claimant had no role in creating the condition, but rather hurt himself on a condition that was not normally present and to which he should not have been exposed. Moreover, it appears that Defendant could have taken relatively simple, everyday, and inexpensive measures, such as placing tape over the sharp edge or taping cardboard over the sharp edge. Defendant's ability to take protective action is vastly superior to Claimant's position as an inmate.
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 established, by a preponderance of the credible evidence, that Defendant was negligent. Furthermore, based on the facts of this case, the Court finds Defendant 75 percent liable and Claimant 25 percent liable. All motions not previously decided are hereby denied. The Court will set up a conference to schedule a trial date on damages.
Let interlocutory judgment be entered accordingly.
June 26, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims