Claimant did not establish that safety vests were required by any rule or regulation and failed to prove by a preponderance of the evidence that the lack of vests was the proximate cause of his injuries. Claim is dismissed.
|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||ROBERT GARCIA
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Ray A. Kyles, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 14, 2018|
|See also (multicaptioned case)|
Claimant brought this action seeking damages for injuries sustained on a work assignment while an inmate at Cape Vincent Correctional Facility (CVCF). A trial was held on May 3, 2017. Claimant was the sole witness.(1)
On November 8, 2011, at approximately 10:30 a.m., Claimant was on a community service crew which was working in the Village of Cape Vincent. The job that day was to rake piles of leaves into the road and shovel them into a garbage truck. While some of the crew were shoveling, Claimant moved ahead to rake the next pile of leaves from the yard into the street. His back was to the garbage truck while he did this. The truck had a metal bar which held tools and protruded approximately three feet perpendicularly from the side of the truck. The truck driver, a village employee, with no indication the State had any supervision or involvement with his work, apparently did not see Claimant, and drove toward the pile of leaves hitting Claimant's back with the metal bar, knocking him to the ground. Claimant testified he was in excruciating pain and had the wind knocked out of him. After being struck, Claimant went and laid in the back of the Department of Corrections and Community Supervision (DOCCS) van until lunchtime when he was taken to the infirmary.
Correction Officer (CO) Petranchuk was with the work crew that day and sent a memo(2) to Sergeant Paulin which said that Claimant was "bumped in the back by a bracket that was attached to the side of the Village of Cape Vincent's garbage truck . . ." The officer asked Claimant if he was okay and, according to the memo, Claimant said he was sore but he could still work. After lunch, Claimant told CO Petranchuk his back still hurt and he was taken to the infirmary.
Claimant's Inmate Injury Report(3) has both the CO and Claimant's statements that he was hit by the garbage truck. The nurse noticed a quarter-size abrasion on his mid-back, another abrasion to his lower left back, and some redness on his right shoulder. He was moving slowly but removed his shirt with a little difficulty. Claimant was seen by a doctor who ordered spinal
X-rays, Claimant stayed in the infirmary that night. The X-rays were negative for a fracture. Claimant was given ibuprofen for pain and ice for his back. On November 14, 2011, Claimant returned to the infirmary still complaining of lower back pain and that the Naproxen upset his stomach. His medications were changed to Tylenol and Flexeril.
Claimant was sent to physical therapy beginning January 2012, but said he could not do the exercises so it was discontinued. He was excused from his work assignments, programs, and gym from November 14, 2011 through December 13, 2011. Eventually, he was issued a back brace and a permanent permit for a bottom bunk. In March 2012, an MRI was ordered and it was performed on April 9, 2012. The results show Claimant has three bulging discs.
Claimant is no longer in State custody. He is currently on disability and has discussed surgical possibilities with his treating physician. He uses a cane to walk, and he is still on medication which, he said, does not relieve the pain, so he is seeing a pain management provider.
It is Claimant's position that the State was negligent by failing to provide reflective safety vests the day he was injured. The reflective safety vests were required on previous work assignments when Claimant was on outside work details. The vests were stored in the van used to transport the inmates to their work site. On November 8, 2011, the van typically used to transport the inmates was being repaired, so a replacement van was used which did not have the vests in it. He said he reported the incident to CO Petranchuk after he was hit and also complained at that time that he had not been provided with a safety vest. Later, he also filed a grievance. The grievance response said:
"The request is satisfied to the extent that the Department has a work safety program in place. This program addresses the proper personal protective equipment safety procedures that are to be followed dependent upon the type of work that is being performed."(4)
No other information was presented to the Court regarding the work safety program and its requirements.
Photographs of a similar garbage truck were received into evidence.(5) Claimant explained that where the hose is attached to the truck in the photo, the truck which hit him had a bracket. On cross-examination, Claimant agreed that given the height of the driver's seat, it is possible that even if he was wearing a safety vest, the accident could still have occurred. Claimant also stated that he heard that the driver was distracted and may have been using his cell phone, in which case, he testified, the accident probably would have still happened even if Claimant was wearing a vest because the truck driver was not paying attention.
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) it breached that duty; and (3) Defendant's breach 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 ; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Gonzalez v Povoski,149 AD3d 1472, 1473 [4th Dept 2017]). The State does have a duty to exercise reasonable care to provide for the safety of inmates in work programs at its correctional facilities (Letterese v State of New York, 33 AD3d 593 [2d Dept 2006]; Kandrach v State of New York, 188 AD2d 910, 913 [3d Dept 1992]). This duty includes the obligation to provide inmates in a work program "with reasonably safe equipment as well as sufficient warnings and instructions for the safe operation of the work and equipment." (Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]). This, however, does not mean that the State must provide a work environment free from any risk of injury, since to raise the State's duty to this level would make it an insurer where any accident or injury would warrant damages. Rather, the duty placed upon the State is that of reasonableness.
Claimant did not establish that safety vests were required by any rule or regulation and, although, it would have been a better practice to require safety vests, the failure to do so did not establish the State's breach of its duty to provide a safe work place for its' inmates. However, even if the failure to provide Claimant with a safety vest was a breach of the State's duty, Claimant has failed to prove by a preponderance of the evidence that the lack of vests was the proximate cause of his injuries (see Endieveri v County of Oneida, 35 AD3d 1268, 1269 [4th Dept 2006]). The driver was a village employee who may have been distracted which, Claimant acknowledged, could have resulted in the incident even if he had been wearing a safety vest.
The claim is hereby DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 14, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. The trial was scheduled to begin at 10:00 a.m. Claimant failed to appear at that time, and the case was dismissed without prejudice on Defendant's motion. The Assistant Attorney General sent his witness back to CVCF. Claimant arrived at 10:40 a.m., and explained that his bus from New York City was late. The Court reopened the case without objection from Defendant, however, the defense witness could not be reached. At the end of Claimant's case, the Assistant Attorney General decided not to call his witness.
2. Exhibit A.
3. Exhibit 2.
4. Exhibit 4.
5. Exhibit C.