Opinion
# 2021-058-015 Claim No. 132456
05-11-2021
KENNETH HAPP v. STATE OF NEW YORK
Campbell & Associates By: John T. Ryan, Esq. Co-Counsel Michael J. Kanaley, Jr., Esq. Hon. Letitia James, New York State Attorney General By: Thomas Trace, Associate Attorney
Synopsis
Following trial, Court finds the State 50% responsible for Claimant's injuries and Claimant 50% responsible for his injuries; the State failed to provide Claimant, an inmate, with reasonably safe equipment to cut boards and failed to properly supervise Claimant in the use of the equipment; However, Claimant failed to use ordinary care in cutting the board despite years of experience doing so; Claimant's conduct was not a superseding cause barring recovery.
Case information
| UID: | 2021-058-015 |
| Claimant(s): | KENNETH HAPP |
| Claimant short name: | HAPP |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132456 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Campbell & Associates By: John T. Ryan, Esq. Co-Counsel Michael J. Kanaley, Jr., Esq. |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Thomas Trace, Associate Attorney |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Kenneth Happ seeks damages for injuries sustained while incarcerated at Marcy Correctional Facility (Marcy). Claimant alleges that, on January 30, 2018, "while he and another inmate were using a circular saw in the Marcy facility's paint shop, the other inmate lost control of the saw, causing it to 'jump' and land on Claimant's right hand and thumb." As a result, Claimant suffered injuries of "an open fracture of the proximal and distal phalanx of the right thumb, together with flexor and extensor tendon damage."
Claim No. 132456 ¶ 8.
i d. ¶ 10.
The trial of this Claim as to liability only was conducted virtually on February 8, 2021 upon stipulation of the parties. Claimant testified on his own behalf and called one other witness, New York State Department of Corrections and Community Supervision (DOCCS) Instructor William Bryant (Bryant). Claimant offered 22 Exhibits of which Exhibits 3 through 24 inclusive were received into evidence by stipulation of the parties. Defendant called no witnesses and introduced two Exhibits, Exhibits A and B, which were received into evidence by stipulation of the parties. At the conclusion of Claimant's case, Defendant made a motion to dismiss; Claimant opposed; and the Court reserved decision. After Defendant rested their case, Claimant made a motion for a directed verdict; Defendant opposed; and the Court reserved decision.
Court Exhibit 1.
After considering the testimony of the witnesses and evidence received at trial as well as reviewing the applicable law and arguments made by the parties, the Court finds that Defendant State of New York is fifty percent (50%) responsible for the injuries suffered by Claimant and Claimant is fifty percent (50%) responsible for his injuries.
FACTS
Claimant testified that in or about January 2016, he was participating in the construction program at Marcy when Bryant, a vocational instructor, requested Claimant be transferred to the painting vocational program. At that time, the painting program was a newly created vocational program with Bryant as the start-up instructor. Claimant testified he wanted to work with Bryant in this program because he had received his Inmate Program Assistant (IPA) certificate and would be able to serve as the program's IPA. Claimant testified that, at that time, there were very few IPA positions available and thus, they were very desirable. Claimant explained if an inmate serves as an IPA in a program for two years without any disciplinary issues, the inmate will receive a six (6) month reduction in prison time.
Claimant explained he received training from DOCCS in the use of power tools, inclusive of the proper use of a circular saw and the use of clamps. Training was accomplished by the inmate reading a packet of material and signing a form. Claimant completed this training on March 21, 2016. Bryant acknowledged this training by signing the form on the same date. Claimant testified he felt he did not need training due to his significant work experience in the construction field prior to his incarceration. Specifically, Claimant explained that for approximately 30 to 35 years, he built residential houses, dormers, and extensions on houses; and refinished home interiors. As part of this work, Claimant stated he utilized construction tools, including circular saws. Claimant testified that while incarcerated, he worked with power tools, including a circular saw, from 2016 up to and including the date of the accident on January 30, 2018.
Exhibit B at 3-4.
i d.
id.
Claimant testified he started in the painting vocational program in March 2016 and his initial duties were to prepare and set up the shop. Claimant testified that using power tools and/or a circular saw is not part of the painting vocational program. However, Claimant testified that he used a circular saw when creating cubicles for the shop. Claimant explained that Bryant never used the circular saw nor did Bryant ever give hands-on instruction on how to use the saw. Claimant described that by September/October 2016, the painting vocational program was operational with approximately 17-20 students enrolled. Although Claimant taught approximately 12 students in the painting program how to use the circular saw, Claimant testified he never witnessed Bryant conduct hands-on training with any inmate-student. Claimant distinguished two types of training as hands-on training and reading written materials in a packet.
Claimant described some of the activities conducted by inmate-students in the painting vocational program, which included placing trim around a window that students would then paint without touching the walls. To make the trim, Claimant used the circular saw to cut a 1 foot by 6 feet board in half to make window frames and trim. Claimant described this process of cutting boards in half as "ripping" and testified that a table saw, not a circular saw, should be used to do that type of cut. Claimant testified that when the paint shop first started, he would bring material to the facility's building and maintenance shop to be cut as that shop had a table saw. According to Claimant, that shop would not return the material. Thereafter, Claimant testified that Bryant instructed him to stop bringing materials there for assistance. Claimant further testified that because the facility building and maintenance shop did not assist in the cutting of materials, Bryant never requested vices or clamps. Bryant testified that tools could be borrowed from other vocational programs. The circular saw used by Claimant was borrowed from the building and maintenance vocational program located across from the painting vocational program. On January 30, 2018, Bryant testified Claimant obtained the circular saw from the building and maintenance vocational program with Bryant's authorization.
"Rip" is defined in the "Introduction to Power Tools" training packet provided to inmates as "to cut with the grain of the wood" (Exhibit 9 at 14 [section 4.0.0]).
Claimant credibly testified to the events which led to his injury on January 30, 2018. Claimant arrived at the painting vocational program at approximately 8:00 to 8:15 a.m. Shortly thereafter, another inmate, Jonathan Baker-Watkins (Baker-Watkins), wanted to create a soffit for his cubicle. Claimant described that a soffit is made by cutting a 2 feet by 4 feet board which is then screwed to a piece of sheetrock. Baker-Watkins approached Claimant and requested assistance. Claimant advised Baker-Watkins he had to first obtain approval from Bryant to build the soffit. Claimant testified he was called to Bryant's desk and told to help Baker-Watkins. Claimant testified that Bryant had Baker-Watkins review a packet, which was thereafter signed by both Baker-Watkins and Bryant. Claimant testified that Bryant did not provide any hands-on instruction relative to the use of a circular saw to Baker-Watkins nor did Bryant supervise Baker-Watkins' first use of the circular saw on January 30, 2018. Indeed, Claimant testified that before commencing use of the circular saw with Baker-Watkins, Claimant observed Bryant in a cubicle teaching another inmate-student how to "compound." Claimant testified that after being injured, he found Bryant in that same cubicle, where he informed the instructor of his injury and that he needed immediate medical attention.
Exhibit 3 at 1.
All quotations not otherwise attributed are taken from the electronic recording of the trial.
Claimant testified that on the day of his injury, he took a 2 feet by 4 feet board; put a line down the center of it; showed Baker-Watkins the circular saw and how to use it; and further explained the importance of holding the board with two hands while using the circular saw. Claimant testified that he told Baker-Watkins to hold the end of the board; showed him how to hold the circular saw; and started cutting the board, demonstrating how to cut straight. Claimant instructed Baker-Watkins to hold the board with his hands, as the paint shop did not have clamps to hold the board in place. Claimant made an initial two-foot cut and then permitted Baker-Watkins to take over. At that point, the wood and circular saw were on a table with a portion of the uncut board hanging off the table. Claimant was holding the cut piece of board down while Baker-Watkins started using the circular saw to cut the remainder of the board. Claimant further described that his right hand was behind his left hand to hold the board down. As Baker-Watkins was cutting the board, the circular saw "pinched" and "bounded up" which resulted in the saw coming off the board. When that occurred, Claimant described that Baker-Watkins let go of the circular saw which then landed on Claimant's right thumb, causing injury.
Claimant testified, based upon his experience, it is not safe to cut wood with a circular saw without having the wood clamped down. Claimant acknowledged there should have been clamps to hold down the wood rather than using his hands. Claimant also explained that, based upon his experience, a table saw, not a circular saw, should have been used to cut the board. Claimant testified he used a circular saw thousands of times before the day of the accident to cut wood and boards. Claimant conceded that using the circular saw to cut the 2 feet by 4 feet board on January 30, 2018 was unsafe. However, Claimant testified that neither he nor the inmates in the painting vocational program had access to either clamps or a table saw. Claimant repeated his testimony that based upon his experience, a table saw should always be used to "rip" wood as a table saw is the safer piece of equipment to use.
Considering his significant experience and training, Claimant was questioned as to why he was utilizing equipment in an unsafe manner and unsafely performing tasks. In response, Claimant testified he did not want to lose his IPA certificate and position. Additionally, Claimant testified that if he is given an order, he must obey it as the failure to obey an order could result in discipline. Claimant averred that Bryant's direction to assist Baker-Watkins was akin to an order. Upon further questioning, Claimant truthfully testified that Bryant did not order him to "rip" a board or use the circular saw, but he did so on his own volition.
Bryant testified he began employment with DOCCS in October 2015 as a Vocational Instructor I, which is the title he currently holds. Bryant explained that prior to commencing employment with DOCCS, he was a painter. Specifically, Bryant had worked for a local union for approximately eight to 10 years and was thereafter self-employed for approximately 10 to 12 years as a residential and commercial painter. Upon his initial employment with DOCCS, Bryant received two weeks of training and received a handbook/manual which contained DOCCS rules and regulations. Bryant testified he was never trained by DOCCS on the use of a circular saw, but recalled he was trained on its use in his high school BOCES program. Bryant explained that as a vocational instructor, his job was to teach painting and painting-related tasks. He also testified he was responsible for the safety of inmates assigned to his vocational program. Bryant described that the paint shop was a new program to Marcy, and he was responsible for preparing the room where the program was going to be held. Bryant testified that, initially, cubicles needed to be built in this shop. Bryant explained these cubicles would be used to teach inmates how to install, patch, and paint drywall. Bryant and Claimant both testified that Claimant, along with another inmate, built approximately 13 6 feet by 6 feet cubicles along the exterior walls of the shop as well as some other freestanding cubicles. Bryant testified Claimant used power tools to create these cubicles which were made from 2 feet by 4 feet wood and sheaths of plywood.
Bryant testified Baker-Watkins initially came to the painting program on January 15, 2018. The following day Bryant trained Baker-Watkins on the safe and proper use of certain materials, tools and equipment and made a record of said training which both Bryant and Baker-Watkins signed. Bryant testified it was his responsibility to ensure the safe use of power tools by inmates in his program. Further, Bryant testified on the day Baker-Watkins used the circular saw, Bryant had the inmate review a packet regarding power tools. Bryant explained he instructed Baker-Watkins on the use of the circular saw because it was anticipated the inmate was going to use the saw. According to Bryant, his instruction to Baker-Watkins was to review the written materials in a packet titled "Introduction to Power Tools." Thereafter, Bryant made a record of training which both he and Watkins-Baker signed. Included in the written materials on how to use a circular saw was training instructions as to its safe operation, including the following: (1) "[w]hile cutting with the saw, grip the saw handles firmly with two hands"; (2) "[w]henever possible, keep both hands on the saw grips while you are operating the saw"; (3) "[d]o not use your hands to try to secure small pieces of material to be cut. Use a clamp instead"; (4) "[p]roperly secure the material to be cut. If the work isn't heavy enough to stay in position without moving, weight or clamp it down"; and (5) "WARNING! Never use a circular saw when holding material to be cut with your hands."
Exhibit 6, which is also the same as Exhibit B, page 2.
Exhibit 9.
id.
Exhibit 3, which is also the same as Exhibit B, page 1.
Exhibit 9 at 15 (section 4.1.1).
id. at 16 (section 4.1.2).
id. at 17 (section 4.1.2).
id. at 15(section 4.1.1).
id. at 17 (section 4.1.2).
Bryant testified he never reviewed a packet entitled "Introduction to Power Tools" as part of his training and orientation, but rather became aware of its contents when reviewing the packet with inmates. With respect to Baker-Watkins' training relative to the use of a circular saw, Bryant testified that he relied upon the fact that Baker-Watkins went through the training packet and that Claimant had more experience than Bryant relative to the use of a circular saw.
Contrary to Claimant's testimony, Bryant testified that at the time of Claimant's injury, Claimant and Baker-Watkins were cutting a 4 feet by 4 feet piece of plywood to replace sheathing on the outside of a cubicle. Bryant testified he was standing to the left of where Claimant and Baker-Watkins were working and did not remember a 2 feet by 4 feet board being cut. Bryant also acknowledged he does not know what "ripping" means. Bryant explained the wood being cut was not clamped or fastened, but weighted consistent with safety requirements. Bryant testified that he could not remember the weight used as there was other materials on the table. Upon further questioning of this point, Bryant stated he could not remember if the wood was weighted down at all. Bryant testified he looked away for a minute when the accident occurred. However, Bryant testified he believed the task was being done safely up until his attention was diverted.
see supra n 7.
Before looking away, Bryant observed Baker-Watkins was in control of the circular saw using both his hands and Claimant was a bystander watching. According to Bryant, the injury occurred when Bryant looked away for approximately 20 seconds. Bryant testified that he did not know what Claimant was doing at the time of the accident. However, in a memorandum prepared by Bryant on January 30, 2018 after the accident, Bryant reported that Claimant "was holding a piece of wood being cut by Inmate Baker-Watkins . . . when the saw pinched between the wood and kicked back and cut Inmate Happ . . . across the right thumb area." Bryant provided conflicting testimony in that he testified he observed Claimant holding a piece of plywood as Baker-Watkins was cutting it so that the wood would not fall to the ground. It appears that Claimant's testimony of holding a board rather than a piece of plywood is buttressed by his recitation of what happened to him at the time of injury in a DOCCS memorandum, dated January 30, 2018, as well as an unusual incident report dated February 5, 2018. Upon further questioning, Bryant testified that if he witnessed any inmate cutting an unsecured 2 feet by 4 feet, he would have stopped it, as it would be unsafe. The Court does not find Bryant's testimony credible.
Exhibit 5.
Exhibit 4.
Exhibit 11. --------
DISCUSSION
"In order to prevail on a negligence claim, a [claimant] must demonstrate (1) a duty owed by the defendant to the [claimant], (2) a breach thereof, and (3) injury proximately resulting therefrom" (Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] [internal quotation marks and citation omitted], rearg denied 28 NY3d 956 [2016]; see P rendergast v State of New York, UID No. 2012-040-014 [Ct Cl, McCarthy, J., Mar. 26, 2012]). The law is well settled "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, 593 [2d Dept 2006]; Whedon v State of New York, UID No. 2019-038-103 [Ct Cl, DeBow, J., Jan. 31, 2019]). Stated differently, "[t]he State of New York's correctional authorities are under a duty to provide reasonably safe equipment and training to inmates participating in correctional facility work programs" (Daily v State of New York, UID No. 2020-041-505 [Ct Cl, Milano, J., May 11, 2020]) see Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]). However, the State "is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Muhamm a d v State of New York, 15 AD3d 807, 808 [3d Dept 2005] [internal quotation marks and citations omitted]) and there will be no liability where the safety measures taken "were reasonable and adequate under the circumstances" (Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]). Additionally, "an inmate is required to exercise ordinary care" for his own safety (Muhammad, 15 AD3d at 808).
This Court concludes that Defendant owed a duty of care to inmates participating in the painting vocational program and breached that duty by failing to provide reasonably safe machinery and equipment and failing to supervise inmates in the safe use of that equipment. Defendant established a painting vocational program at Marcy which required inmates to construct and re-construct cubicles that were utilized to teach the trade of painting. Bryant permitted inmates to utilize a circular saw to construct and/or reconstruct cubicles and its parts. The Court finds Claimant credibly testified that a board was being cut on January 30, 2018 and that a table saw and clamps were needed to safely perform this task. Additionally, the Court finds Bryant was aware of the work performed by Claimant and did not provide reasonably safe machinery and/or equipment. Specifically, the Court determines that Bryant, as the vocational instructor, knew inmates, inclusive of Claimant and Baker-Watkins were engaging in the unsafe use of a circular saw and engaged in an unsafe course of action while utilizing said power tool. Despite his awareness, Bryant did nothing to prohibit the use of the circular saw. Indeed, it is undisputed that a table saw was in the facility's building and maintenance shop that was previously utilized to cut boards. However, Bryant instructed Claimant not to bring the boards to the facility's building and maintenance shop because the materials were never returned. Additionally, according to Claimant's testimony, Bryant never requested clamps and/or vices for use in the painting shop. Moreover, this Court finds that there is no evidence that Bryant, as a vocational instructor permitting inmates under his charge to use a circular saw, was trained on the use a circular saw himself. Lastly, the testimony at trial is unconverted that Bryant did not supervise Baker-Watkins or Claimant while they were using a circular saw on January 30, 2018. The Court concludes that Defendant's failure to provide reasonably safe equipment and adequate supervision was a substantial factor in the events that caused Claimant's injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Graziano v 118-17 Liberty Ave. Mgt. Corp., 209 AD2d 582, 583 [2d Dept 1994]; Prendergast, UID No. 2012-040-014).
However, the Court also determines that Claimant must bear some responsibility for his accident. If "an inmate fails to use ordinary care and pursues a dangerous course of conduct, he or she is required to take some responsibility for his or her own negligence" (Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]; see Muhammad, 15 AD3d at 808). Where a claimant's conduct is a superseding cause of the injuries, the State may be excused from liability (see Martinez, 225 AD2d at 879). "To constitute a superseding cause, 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; see Whedon, UID No. 2019-038-103; see also White v State of New York, 137 AD2d 868, 869 [3d Dept 1988] ["The doctrine of a superseding cause requires an intermediate cause disconnected from the primary fault, and self-operating, which produced the injury" (internal quotation marks and citations omitted)]). However, "only extraordinary and unforeseeable events . . . operate to relieve the State from liability" (White, 137 AD2d at 869; see Bernard, 34 AD3d at 1068).
Claimant testified, based upon his significant experience, that a circular saw should not have been used to cut the board and that clamps should have been used to hold down the board. Despite Claimant's experience prior to incarceration and the training he received from DOCCS, the Court finds Claimant appreciated the risks of utilizing a circular saw and using his hands to hold a board. The Court concludes that Claimant's use of his hands to hold down a board being cut by a circular saw was a conscious disregard of a fully appreciated risk. However, the Court concludes that Claimant's "conduct is not a superceding cause precluding recovery because his actions were not so reckless as to constitute an 'extraordinary and unforeseeable event[ ] [that will] operate to relieve [Defendant] from liability'" (Bernard, 34 AD3d at 1068, quoting White, 137 AD2d at 869). Claimant's use of the circular saw, which was unsafe for the task at hand, was foreseeable in light of the fact that Claimant was directed by Bryant to help Baker-Watkins cut material, and a table saw and clamps were not made available at the painting vocational shop. Stated differently, Claimant's use of the circular saw stems from and is connected to the primary fault of Defendant's failure to provide safe equipment (i.e. a table saw and clamps) (see White, 137 AD2d at 869). However, because Claimant's conduct contributed to his injuries, apportionment of liability is appropriate (see Bernard, 34 AD3d at 1067; Kandrach, 188 AD2d at 914; Prendergast, UID No. 2012-040-014; Layou v State of New York, UID No. 2007-009-174 [Ct Cl, Midey, Jr., J., Aug. 6, 2007]).
Courts "take into consideration the special circumstances that confront an incarcerated inmate in assessing whether the inmate was comparatively negligent," recognizing an inmate must choose between following orders, or risking disciplinary sanctions (Bernard, 34 AD3d at 1068; Lowe v State of New York, 194 AD2d 898, 899 [3d Dept 1993]; Prendergast, UID No. 2012-040-014). In this instance, Claimant was not engaged in a "relatively simple task" (cf. Layou, UID No. 2007-009-174 [holding the claimant 50% liable for burns sustained when top of lid came off while attempting to rotate 10-gallon urn filled with hot coffee]; see also Spirato s v County of Chenango, 28 AD3d 863, 864-865 [3d Dept 2006] [the defendant is not liable where inmate burned when he lost grip and accidently dropped one-gallon aluminum vessel containing boiling water]; Wright v State of New York, UID No. 2008-015-088 [Ct Cl, Collins, J., Nov. 18, 2008] [finding the defendant had no duty to train/instruct inmate regarding how to remove bags of cabbage from pot of boiling water]). Essentially, Claimant alleges he was faced with either obeying the order to assist Baker-Watkins with his project or subject himself to possible disciplinary measures, including the loss of his IPA certificate and position. Although Claimant testified he believed he would be sanctioned, he offered no evidence that any of those sanctions would be imposed. Claimant's testimony was purely speculative. The fact of his incarceration and the circumstances surrounding his accident do not relieve him of fault for his actions (see Whedon, UID No. 2019-038-103).
Therefore, upon consideration of the testimony of the trial witnesses, observing their demeanor while testifying, as well as examining the evidence received at trial and reviewing the applicable law, the Court finds that Defendant is liable to Claimant for the failure to provide reasonably safe equipment and adequate supervision and that Claimant's comparative negligence was also a proximate cause of his accident and injury. Accordingly, the Court apportions fifty percent (50%) liability of this accident to Defendant and fifty percent (50%) liability to Claimant. The Chief Clerk is directed to enter an interlocutory judgment to this effect.
Any 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. All other causes of action alleged in the Claim that are not specifically addressed herein are hereby dismissed.
The Claim will be scheduled for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
May 11, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims