New York State Court of Claims

New York State Court of Claims
WILSON v. THE STATE OF NEW YORK, # 2018-032-012, Claim No. 127966


Claimant, an inmate proceeding pro se, brings the instant claim alleging unsafe working conditions at Five Points Correctional Facility. Following a trial, the Court dismisses the claim. Defendant had no duty to instruct or train claimant on how to remove bags of food from kettles.

Case information

UID: 2018-032-012
Claimant(s): ROBERT WILSON
Claimant short name: WILSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127966
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Robert Wilson, Pro Se
Defendant's attorney: Hon. Barbara D. Underwood, NYS Attorney General
By: Ray A. Kyles, Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:
Signature date: June 27, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed the instant claim on May 20, 2016, alleging that defendant State of New York created an unreasonably unsafe working condition that caused claimant to suffer severe burns on his left arm (Verified Claim 1-4). Specifically, claimant was injured on March 11, 2015 when he attempted to remove onions and peppers from a kettle while working in the kitchen at Five Points Correctional Facility ("Five Points") (id. 4). He alleges that, on numerous occasions, claimant advised defendant that heavy duty splash gloves were necessary for work in the kitchen, and that heavy duty splash gloves would have prevented his injuries caused by steam generated from the kettles (id. 3, 5). The claim proceeded to trial on March 21, 2018.


Claimant testified that on March 11, 2015, at approximately 8:45 p.m., he was assigned to work in the Five Points mess hall.(1) At that time, he was instructed to put onions and peppers into a kettle to cook. After approximately an hour and a half, he was instructed to remove the onions and peppers from the kettle. When claimant removed the top from the kettle, steam escaped and burned his left arm. He went to the infirmary for medical care.

Medical staff at the infirmary diagnosed claimant with a second degree burn on his left forearm (see Exhibit 1). His left forearm was bandaged for approximately two weeks. After two weeks, claimant returned to the infirmary. At that time, medical staff removed the bandage and gave claimant a cream to apply to the burn.

On March 22, 2015, claimant filed a grievance which stated that the kitchen should have heavy duty splash gloves available to workers, not just wrist-length yellow gloves. Claimant testified that on April 22, 2015, the Food Service Administrator told claimant that he would look into getting heavy duty splash gloves for the kitchen. On May 1, 2015, claimant received a response to his grievance from the Inmate Grievance Review Committee (IGRC). The IGRC accepted the grievance, and recommended that the Food Service Administrator order heavy duty splash gloves for the kitchen. Although claimant won the grievance, he appealed the IGRC's decision in order to exhaust his administrative remedies. On appeal, the Superintendent disagreed with the IGRC's response and denied the grievance. The Superintendent stated that claimant was properly trained on the procedure for opening the kettle lid, and that claimant needed to be more attentive when performing his duties in the kitchen (Exhibit 2). Claimant appealed the Superintendent's decision to the Central Office Review Committee (CORC). CORC denied the grievance and upheld the Superintendent's decision. In so holding, CORC "note[d] that inmates working in the messhall [sic] are provided with elbow height gloves. CORC asserts that higher gloves are not necessary" (Exhibit 2).

On cross-examination, claimant testified that he worked in the Five Points kitchen in 2013, left in 2014, and then returned in 2015. In January 2015, he received training on how to open the kettles and on kitchen duties, generally. Exhibit 3, an Inmate Progress Report, is dated January 23, 2015 and states that "[claimant] has been trained in food service." Exhibit 3 also includes a document titled "Record of Training" and shows that claimant received training regarding working with kettles on April 28, 2015, a month and a half after the accident. Claimant testified that he was not required to sign a Record of Training prior to his accident. Claimant further testified that he received only wrist-length gloves while working with the kettles prior to the accident. These gloves were available for washing dishes, but no heavy duty gloves were issued until after claimant's accident. Although claimant was burnt while working near the kettles prior to March 11, 2015, he never filed a grievance.

Defendant's only witness was Marc Antonik, Head Cook at Five Points. Mr. Antonik worked as a Cook at Five Points since 2005, and was recently promoted to Head Cook. In his position, he is familiar with training and procedures as to mess hall duties and policy and procedures regarding safety equipment in the kettle area. He is familiar with the training and progress sheets submitted as Exhibit 3, and testified that inmates are evaluated every 90 days. During his tenure, Mr. Antonik worked with claimant.

Mr. Antonik testified that inmates are issued gloves prior to working in the kettle area and are trained in the use of those gloves. He further testified that heavy duty elbow-length gloves would have been available on the date of claimant's accident, but he was unsure whether the gloves available on that date were black or green. However, the gloves would have been the same heavy rubber material as the gloves offered into evidence as Exhibit 6. Yellow gloves were available in the kettle area, but they are not appropriate for working with kettles. In 2015, he was not aware of any complaints regarding the issuance of heavy duty gloves in the kettle area, and he was also not aware of claimant's grievance regarding heavy duty elbow-length gloves.

On cross-examination, Mr. Antonik testified that if he saw claimant or another inmate wearing yellow gloves, he would have told them that they should use more appropriate gloves.


To establish a prima facie case of negligence, the claimant must demonstrate, by a preponderance of the evidence: (1) defendant owed claimant a duty of care; (2) defendant breached that duty of care; and (3) defendant's breach substantially caused the events that led to the claimant's injuries (Keating v Town of Burke, 86 AD3d 660 [3d Dept. 2011]; Solomon v City of New York, 66 NY2d 1026, 1027 [1985]).

When the State is performing activities traditionally performed by private entities, it is deemed to be acting in a proprietary capacity and is subject to the same principles of tort law that govern private actors (Sebastian v State of New York, 93 NY2d 790, 793-794 [1999]). As set forth in Prendergast v State of New York, UID No. 2012-040-014 [Ct Cl, McCarthy, J., March 26, 2012]), defendant's operation of a kitchen with inmate employees is a proprietary action. Accordingly, and as further set forth in Prendergast,

"[I]nmates 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. 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. Nevertheless, the State does have a common-law duty to provide inmates engaged in work programs 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 (citations omitted)."

"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. 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 (citations omitted)." (Prendergast v State of New York, UID No. 2012-040-014 [Ct Cl, McCarthy, J., March 26, 2012]).

In determining whether claimant has carried his burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes (Shirvanion v State of New York, 64 AD3d 1113 [3d Dept. 2009]). It is claimant's burden to prove his case by a preponderance of the credible evidence (Ellis v Collegetown Plaza, 301 AD2d 758 [3d Dept. 2003]).

Applying the aforesaid principles to the facts in this case, the Court finds, after listening to all the testimony and assessing the credibility of each witness, that claimant failed to prove his claim by a preponderance of the credible evidence. First, the Court finds that "defendant had no duty to train, instruct or direct the claimant in the performance of so common and ordinary an act as removing a bag of [vegetables] from a kettle of hot water" (Wright v State of New York, UID No. 2008-015-088 [Ct Cl, Collins, J., Nov. 18, 2008]). The risk associated with removing food from a hot kettle "should be obvious to one using ordinary common sense" (id., citing Smith v Stark, 67 NY2d 693 [1986]; Stephen v Sico, Inc., 237 AD2d 709 [3d Dept. 1997]). Moreover, claimant testified that he had been trained in how to properly use the kettles (see Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept. 2005]). Although it surely would have been "better practice" to provide heavy duty elbow-length gloves, claimant failed to show that defendant failed to provide the gloves (see Garcia v State of New York, UID No. 2018-018-911 [Ct Cl, Fitzpatrick, J., Feb. 14, 2018]). Mr. Antonik, who worked in the kitchen at Five Points since 2005, testified that the yellow gloves that claimant was wearing at the time of the accident were not appropriate, and that heavy, elbow-length gloves were available to inmates working in the kettle area on March 11, 2015. CORC's determination on claimant's appeal supports Mr. Antonik's testimony. The response to claimant's appeal of the Superintendent's decision states "that inmates working in the messhall [sic] are provided with elbow height gloves. CORC asserts that higher gloves are not necessary" (Exhibit 2).

Even assuming that defendant did create a dangerous condition by failing to provide claimant with proper gloves, the Court finds that claimant failed to show by a preponderance of the credible evidence that there were prior complaints or accidents involving use of the kettle and a lack of heavy duty elbow-length gloves (Hemby v State of New York, UID No. 2014-040-014 [Ct Cl, McCarthy, J., Mar. 19, 2014]). Although claimant testified that he had previously sustained a burn while working with the kettles, he stated that he never filed a grievance regarding the incident. Additionally, Mr. Antonik testified that he was unaware of any complaints regarding the availability of heavy duty elbow-length gloves in the kettle area.

Accordingly, the Court finds that claimant failed to prove his claim that defendant was negligent in failing to provide heavy duty elbow-length gloves in the kettle area. All motions and cross motions are denied as moot, and all objections upon which the Court reserved determination during trial are now overruled. Claim number 127966 is dismissed.

Let judgment be entered accordingly.

June 27, 2018

Albany, New York


Judge of the Court of Claims

1. Claimant testified that the time was 8:45 p.m., however, the claim alleges that the incident occurred at 8:45 a.m. (Claim, 4).