Claimant's causes of action alleging defendant's failure to provide reasonably safe working conditions; failure to properly instruct claimant; excessive force; and negligent hiring, training, and supervision are dismissed for claimant's failure to prove the causes of action by a preponderance of the credible evidence.
|Claimant short name:||PURDIE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Gary E. Divis, Esq.|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: G. Lawrence Dillon, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||February 27, 2018|
|See also (multicaptioned case)|
Claimant filed this action for damages sustained on August 9, 2014 when a correction officer pushed claimant, causing him to fall on a wet and slippery area of the floor in the mess hall at Ogdensburg Correctional Facility (OCF) (Claim ¶ 3). The claim alleges causes of action sounding in negligence; failure to provide reasonably safe work conditions; failure to instruct claimant and provide safety equipment; and negligent hiring, training and supervision (Claim ¶ 4). A trial was held on May 2, 2017 in Utica, New York.
On August 9, 2014, claimant was assigned to wash the pots in the kitchen at OCF. However, his usual position was to hand out spoons on the chow line. According to claimant, when he went to the pot room, there was a problem with a drain in one of the sinks. He reported the problem to Correction Officer Allen Rowledge who was standing by the "prep table" in the kitchen which, according to claimant, had a little water around it (T: 41).(1) He asked Officer Rowledge if there was another inmate who could show him how to fill up the sink. Officer Rowledge responded by saying: "oh you told the sergeant on me you ratted me out get your, get your black ass back in the pot room and learn how to do it yourself . . . " (T: 44) . Claimant asked Officer Rowledge what he said, and Officer Rowledge allegedly pushed or nudged claimant toward the pot room and told claimant to get back in there. The push caused claimant to twist his knee and fall to the floor. Thereafter, Correction Officer Joseph Fortin and Sergeant Thomas LaBrake entered the kitchen. Claimant relayed to Sergeant LaBrake what had transpired and Sergeant LaBrake sent him back to his dormitory on full bed status, meaning that he could not leave his cube without an officer escort.
Later on the same day, two correction officers escorted claimant to the infirmary from his cube. Sergeant LaBrake was present when claimant arrived at the infirmary. Claimant testified that the nurse asked him what happened and he told her that his knees hurt, but she did not examine him (T: 50-51). This statement contradicts a memorandum that Nurse C. Towne wrote to Lieutenant J. Rogers wherein she stated that she examined claimant on August 9, 2014 and found that he had no injuries on his body (Exhibit D). The Inmate Injury Report compiled by the nurse on August 9, 2014 also states that claimant stated that he did not have any injuries (Exhibit B). Claimant testified that he stated that he had no injuries and then signed the Inmate Injury Report (Exhibit B) because Sergeant LaBrake and two other correction officers threatened him while he was in the exam room. Two days after the incident, claimant went to sick call and reported that he was pushed and fell. Some swelling of the knee was noted (Exhibit 3).
On August 14, 2014, a Tier II Hearing was conducted for the charges contained in the Misbehavior Report that was issued to claimant on August 9, 2014 as a result of the incident giving rise to the instant claim. The charges included creating a disturbance and disobeying a direct order. At the hearing, claimant did not present any witnesses and did not state that he was pushed by Officer Rowledge, or that he fell and sustained injuries.
Claimant filed a grievance against Officer Rowledge regarding the August 9, 2014 incident. The grievance was found to be without merit by the OCF Superintendent due to the "documentation provided and the lack of witnesses and physical evidence" (Exhibit L). In appealing the Superintendent's decision to the Central Office Review Committee (CORC) within the Department of Corrections and Community Supervision, claimant wrote that he had two witnesses but he would not reveal their names for safety concerns. The Superintendent's decision was upheld by the CORC (Exhibit M).
At trial, claimant produced by subpoena William Neely, a former inmate who at the time of trial was still on parole. He was a dishwasher at OCF and was present on the day that the alleged incident occurred. He testified that he was aware of the plumbing problem in the pot room and noted that there was no floor drain there. When he worked there, he would tie a rag around the pipes but water would still overflow onto the floor. He testified that water from the pot room would track into the kitchen area outside the pot room where the prep table was located (see Exhibit 1). The floor around the prep area was made of tiles. The floor would not be mopped until the end of the day. On August 9, 2014, around 8:15 a.m., Neely was in the dishwashing room when he heard someone yelling. He observed claimant and a correction officer through the window in the dishwashing room. They were standing face to face near the prep table in the kitchen (see Exhibit 1). According to Neely, the correction officer yelled at claimant and then pushed him. Claimant fell to the floor. He regained his footing, but one of his legs was "stuttering" (T: 21).
The testimony of Officer Rowledge was submitted through his examination before trial (Exhibit N). He testified that he did not change claimant's assignment from giving out spoons to washing pots, rather, the assignment was made the previous day. He testified that claimant came out of the pot room, threw his things on the floor, and refused to work. According to Officer Rowledge, claimant said "I'm done, put me in the box" (Exhibit N, p. 10). Officer Rowledge denied pushing claimant or making any retaliatory or derogatory remarks to claimant (see also Exhibit F). The examination of this witness did not address instructing claimant on how to do his job or the failure to produce mops.
At trial, defendant call Officer Fortin as a witness. He was the first officer in charge of the logbook in the kitchen area on August 9, 2014. Officer Rowledge was second officer in charge of the mess hall where the inmates eat. Officer Fortin observed Officer Rowledge and claimant talking and heard claimant say that he did not want to work in the pot room and something along the lines of "f*** it you can send me to the box[,] I'm not working here" (T: 76). Claimant then threw his apron on the floor. Officer Fortin did not witness Officer Rowledge touch or bump claimant (see also Exhibits G, H). Officer Rowledge then called the area supervisor, Sergeant LaBrake. The examination of this witness did not address instructing claimant on how to do his job or the failure to produce mops.
At trial, Sergeant LaBrake testified that Officer Rowledge contacted him on August 9, 2014 and informed him that claimant was refusing to work. Sergeant LaBrake escorted claimant to the quiet recreation area where claimant informed Sergeant LaBrake that Officer Rowledge pushed him. Sergeant LaBrake testified that when an inmate claims that a correction officer physically touches him, certain protocols take place. The protocol includes bringing the inmate to the infirmary for examination and taking photographs of the inmate. The staff member(s) involved in the incident must also write a memorandum about the incident. Sergeant LaBrake wrote a memorandum to his superior, Lieutenant J. Rogers, summarizing his investigation into the incident. He concluded in that memorandum that he could not find any evidence that Officer Rowledge put his hands on claimant at any time (Exhibit E).(2) Contrary to claimant's testimony, LaBrake testified that he escorted claimant directly to the infirmary from the quiet recreation room. As for the wetness on the kitchen floor, he testified that he did not encounter it during the mess hall run, but a mopping of the floor or steam kettles could cause the floor to be wet. Wet floor signs would be put up as the mopping occurs. He also testified that if there was a problem with the sink, maintenance would be called to fix it.
LAW AND ANALYSIS Claimant has the burden of proving his case by a preponderance of the credible evidence. In determining whether claimant has met his burden, the Court, as a finder of fact, must weigh the evidence presented after assessing the credibility of the witnesses, and resolving conflicting evidence and the relative strength of conflicting inferences that may be drawn therefrom (Zi Guang v State of New York, 263 AD2d 745, 746 [3d Dept. 1999]; Brooker v State of New York, 206 AD2d 712 [3d Dept. 1994]). After considering all of the testimony, and observing the witnesses and their demeanor as they testified, the Court finds that claimant has not demonstrated by a preponderance of the credible evidence that defendant breached a duty of care owed to claimant on any alleged cause of action.
"To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, [c]laimant must demonstrate by a preponderance of the credible evidence that: (1) [d]efendant owed [c]laimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) [d]efendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by [c]laimant" (Tucker v State of New York, UID No. 2012-040-008 [Ct Cl, McCarthy, J., Feb. 3, 2012], citing Solomon v City of New York, 66 NY2d 1026, 1027 ; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept. 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept. 2007]; DeLuke v City of Albany, 27 AD3d 925, 926 [3d Dept. 2006]).
Further, "[i]t is undisputed that defendant, through its correctional authorities, owes a duty to provide inmates engaged in work programs 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], citing Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept.1998]; Martinez v State of New York, 225 AD2d 877, 878 ). However, "defendant '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 at 808, quoting Auger v State of New York, 263 AD2d 929, 930 [3d Dept.1999] [citation omitted]).
To the extent that claimant argues that defendant failed to provide claimant with a safe workplace, safe equipment, and proper instructions, these causes of action are dismissed. The Court has reviewed all the evidence including the witnesses' testimony and their demeanor.(3) Claimant failed to prove by a preponderance of the credible evidence that defendant created a dangerous condition by allowing water to accumulate on the pot room floor, or that his alleged injury was caused by slipping on water by the food prep table due to a push from Officer Rowledge. Claimant also failed to show that defendant failed to provide him with safe equipment or the proper instructions for closing the valves in the sink in the pot room.
Regarding claimant's allegation that defendant knew or should have known that a dangerous condition existed in the pot room, Neely testified that the pipes connected to the sink in the pot room were constantly overflowing, such that Neely would tie rags around the pipes when he was working in the pot room (T: 17-18). Although Neely testified that water would "track everywhere" (T: 18), claimant testified that there was "a little water" around the food prep table on the day of the incident (T: 42). According to Sergeant LaBrake, if there had been a problem with the sink, maintenance would have been called (T: 110). Sergeant LaBrake also testified that the only times that the floor in the kitchen became wet were when it was mopped after the mess hall runs concluded, and sometimes when steam kettles were used (T: 89-90). No testimony or documents were produced about how many mops were located in the kitchen, what staff was responsible for mopping, or whether the kitchen floor was mopped on the date of the incident. Furthermore, no maintenance records or personnel were produced to corroborate that there was an ongoing problem with the kitchen sink in the pot room or that defendant knew of the problem.
The Court further finds that even if claimant had established that a dangerous condition existed in the kitchen, he failed to show that "such condition was a substantial factor in the events that caused the injury suffered by [c]laimant" (Tucker v State of New York, UID No. 2012-040-008 [Ct Cl, McCarthy, J., Feb. 3, 2012] [citations omitted]). Regarding claimant's allegation that Officer Rowledge pushed him, the Court finds the testimony of the three correction officers, that claimant just refused to do his job that day, to be more persuasive than the testimony of claimant and Neely. Officer Rowledge testified at his deposition that on the day of the alleged incident, claimant left the pot room, threw his things on the floor and refused to work (Exhibit N, p. 10). Officer Rowledge then notified Sergeant LaBrake that claimant refused to work, and claimant was escorted out of the kitchen (Exhibit N, p. 11). Officer Rowledge unequivocally denied pushing claimant (Exhibit N, p. 10-11). Officer Fortin corroborated Officer's Rowledge's version of events. Officer Fortin testified that he observed the interaction between claimant and Officer Rowledge, and observed claimant state that "he didn't want to work in the pot room" (T: 76). He then observed claimant take off his apron and throw it. During the interaction between claimant and Officer Rowledge, Officer Fortin did not see Officer Rowledge push claimant, and he did not see claimant fall (T: 77). Sergeant LaBrake testified that when Officer Rowledge contacted him on August 9, 2014, he told Sergeant LaBrake that claimant was refusing to work (T: 91). Although claimant told Sergeant LaBrake that Officer Rowledge pushed him, Sergeant LaBrake did not recall whether claimant stated that he was injured. When claimant went to the infirmary on the day of the incident, he reported that he had no injuries on his body after the alleged fall (Exhibit B). The nurse who took that statement wrote a memorandum to Lieutenant J. Rogers corroborating Sergeant LaBrake's testimony that claimant did not report any injuries on the date of the incident (Exhibit D). Claimant reported an injury to his knee two days later during a sick call. Further, Officer Rowledge issued a misbehavior report to claimant, but claimant chose not to produce witnesses at the Tier II hearing regarding that misbehavior report. Only when claimant appealed the Superintendent's decision denying claimant's appeal of the Tier II hearing disposition did claimant reveal that he allegedly had two witnesses to the incident who feared for their safety (Exhibits C, L). Neely was never asked at trial if he was one of those witnesses, which would have corroborated claimant's appeal statement (Exhibit L). While claimant's later physical examinations indicated that he had a torn meniscus in his left knee, the weight of the evidence does not support that it was caused by a push or nudge by a correction officer while claimant stood on a wet floor in the kitchen.
The Court also finds that there was no violation of the requirement for defendant to give instructions to inmates. As for the instructions for washing pots, the act is self-explanatory. The Court finds that it was more probable that claimant refused to work as a pot washer that day, annoyed that he could not perform his regular task of just handing out spoons. Furthermore, even if claimant had not been properly instructed on how to wash pots, the failure to do so would not have been the proximate cause of his injury.
To the extent that the claim avers a cause of action for the use of excessive force against claimant, " '[i]n situations involving inmate allegations of excessive force by a [CO], such as here, the credibility of the respective witnesses is often the dispositive factor' " (Flemming v State of New York, UID No. 2015-040-061 [Ct Cl, McCarthy, J., Dec. 2, 2015], quoting Clark v State of New York, UID No. 2003-029-272 [Ct Cl, Mignano, J., Apr. 4, 2003] [additional citations omitted]). Again, as stated above, the Court credits the testimony of Officers Rowledge and Fortin that Officer Rowledge did not push or nudge claimant before he fell. Even if Officer Rowledge had slightly pushed or nudged claimant back to his assigned position in the pot room, 7 NYCRR 251-1.2 (b) allows the use of physical force when necessary and where the degree of force is reasonable. As testified to by Officer Fortin, claimant threw down his apron and used a vulgar word before he announced that he was not going to do his job. Assuming without deciding that claimant had a tantrum about working in the pot room, it would have been reasonable for Officer Rowledge to nudge him back into the room (see 7 NYCRR 251-1.2 [b] ["Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used."].
Based upon the Court's review of the credible evidence, including observing the witnesses and assessing their demeanor, the Court dismisses the claim in its entirety including the remaining alleged negligent supervision cause of action, due to the failure to offer any proof to support such allegation.
Let judgment be entered accordingly.
February 27, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. References to the trial transcript are indicated here as (T: ).
2. He acknowledged that he inadvertently put the incorrect date of the memorandum (T: 97).
3. The Court notes that it did not have the opportunity to observe the demeanor of Officer Rowledge, whose deposition testimony was introduced as an exhibit that was stipulated to by both attorneys.