New York State Court of Claims

New York State Court of Claims
LORICK v. THE STATE OF NEW YORK, # 2018-041-073, Claim No. 128569, Motion No. M-92223, Cross-Motion Nos. CM-92465, CM-92507

Synopsis

Claimant's motion for partial summary judgment as to defendant's liability, and defendant's cross-motion for summary judgment dismissing the claim, in inmate negligent supervision claim, are each denied where questions of fact exist as to the identity and training, if any, of fellow inmate who allegedly caused claimant's injury.

Case information

UID: 2018-041-073
Claimant(s): DERRICK B. LORICK, 05-A-6213
Claimant short name: LORICK
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128569
Motion number(s): M-92223
Cross-motion number(s): CM-92465, CM-92507
Judge: FRANK P. MILANO
Claimant's attorney: RYANNE G. KONAN, ESQ.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 13, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves (M-92223) for summary judgment on his claim alleging that claimant was injured, due to defendant's negligence, while working as an inmate-cook in the Mess Hall kitchen at Wallkill Correctional Facility (Wallkill) when an "unsupervised and untrained inmate . . . carelessly opened the cooking Kettle [and] [b]oiling hot water, pasta and steam, burst out of the cooking kettle and splashed on Claimant's elbow."

Defendant opposes the claimant's motion and cross-moves (CM-92465) for summary judgment dismissing the claim.

Claimant opposes the defendant's cross-motion and additionally cross-moves (CM-92507) to correct his "mistake" in failing to provide a complete copy of defendant's answer with claimant's motion for partial summary judgment, as required by CPLR 3212 (b).

Initially, the Court grants claimant's cross-motion (CM-92507) to correct his "mistake or defect" in failing to provide a complete copy of defendant's answer with his motion for partial summary judgment (M-92223).

The Court will next consider claimant's motion for partial summary judgment as to defendant's liability and defendant's cross-motion for summary judgment dismissing the claim.

The procedural law governing the Court's consideration of the dueling summary judgment motions is clear.

As a matter of procedure, a "motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [internal quotation marks and citations omitted]; see Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017]).

Further, "[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]).

The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).

The claim alleges that claimant was injured, due to defendant's negligence, while working as an inmate-cook in the Mess Hall kitchen at Wallkill when an "unsupervised and untrained inmate . . . carelessly opened the cooking Kettle [and] [b]oiling hot water, pasta and steam, burst out of the cooking kettle and splashed on Claimant's elbow."

The State owes a duty of care to protect inmates in its custody from reasonably foreseeable risks of harm, but it is not an insurer of inmate safety (see Sanchez v State of York, 99 NY2d 247, 253 [2002]). However, such duty does not require constant surveillance (see Sanchez v State of New York, 99 NY2d at 256). The State "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 807, 808 [3d Dept 2005] {internal quotation marks and citations omitted}).

In particular, the State's correctional authorities are under a duty to provide reasonably safe equipment and training to inmates participating in correctional facility work programs (Havens v County of Saratoga, 50 AD3d 1223, 1224 [3d Dept 2008], lv denied 11 NY3d 846 [2008]); see Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006]; Spiratos v County of Chenango, 28 AD3d 863, 864 [3d Dept 2006]; Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]).

Of course, "an inmate is required to exercise ordinary care" for his own safety (Muhammad, 15 AD3d at 808). If the inmate fails to exercise 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]).

The incident occurred on June 28, 2015 at the Wallkill Mess Hall during a Ramadan event. Claimant was a trained cook who had been given instruction in proper safety practices when using steam kettles, including instruction that in using steam kettles "[y]ou have to be careful like when you open the lids, when you have boiling water and stuff like that."

During the Ramadan event, like other religious events at Wallkill, both trained cooks and untrained volunteers were permitted to use the kitchen.

Claimant testified at deposition that at the Ramadan event "you have the Muslims and you have the Nation of Islam, both observing Ramadan." (C transcript 49). Claimant further testified at his deposition that just before the incident occurred he was cleaning a large kettle while two fellow Muslim inmates, Neill and Warren, "were standing right there behind me." (C transcript 49-50). Claimant testified that "[t]hey [Nation of Islam members] were using the kettle next to us." (C transcript 49). There were both trained and untrained Muslim and Nation of Islam members using the Wallkill Mess Hall kitchen at the time.

Claimant testified that "I could see from my peripheral like this bubbling up, and I feel this pain on my arm." (C transcript 49). Claimant noticed that "the kettle next to me was boiling" and testified that "the guy that opened the lid, he opened the lid, he said I am sorry, Man. My bad, I am sorry." (C transcript 50). Claimant suffered a burn to his arm and inmate Neill suffered a burn to his lip.

Claimant did not see anyone open the lid of the kettle which allegedly caused injury to him and inmate Neill (C transcript 60, 65).

Claimant and inmate Neill immediately reported the incident and filed a grievance regarding safety issues in the Wallkill Mess Hall kitchen. The grievance resulted in a determination requiring "appropriate corrective action to insure that all inmates cooking for special events are adequately trained."

Claimant essentially argues that defendant was negligent in permitting untrained volunteers to use the Wallkill Mess Hall kitchen during the Ramadan event and that defendant's negligence resulted in an untrained volunteer opening the lid of a steam kettle, causing claimant's injury.

Defendant primarily argues, in response, that claimant is relying upon speculation because claimant has offered no proof that an untrained Nation of Islam volunteer, as opposed to a trained Nation of Islam cook, or someone else, lifted the kettle lid and caused his injury.

Defendant offers the affidavit of the long-time Head Cook at Wallkill who was supervising the Wallkill Mess Hall kitchen when the incident took place. The Head Cook states that he did not witness the incident because he was in another area of the kitchen when it occurred. He also states that while volunteers were permitted in the kitchen during designated religious events, only "inmates who had received training as cooks were allowed to use the kettles . . . . Had I personally witnessed a non-trained volunteer using the kettles, I would have directed him not to." The Head Cook stated that the "only inmates I witnessed utilizing the kettles were those inmates who had been trained as institutional cooks."

The Court is well aware that "negligence cases do not usually lend themselves to summary judgment" (Smith v Moore, 227 AD2d 854, 855 [3d Dept 1996]). Consequently, the claimant in a negligence action "will generally be entitled to summary judgment 'only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances'" (Andre v Pomeroy, 35 NY2d 361, 365 [1974], citing 4 Weinstein-Korn-Miller, N Y Civ Prac, par 3212.03).

Put simply, the determination in a negligence action as to whether a defendant's conduct falls short of the standard of ordinary care is an issue that "'can rarely be decided as a matter of law'" (Ugarriza v Schmieder, 46 NY2d 471, 475 [1979], quoting Andre, 35 NY2d at 364).

The Court finds that questions of fact preclude summary judgment from being granted to either claimant or defendant.

In particular, the Court recognizes that defendant has discretion to determine the training and staffing requirements required for special inmate religious events such as the Ramadan event at issue. Whether defendant in some manner exceeded or abused that discretion in this case is a question of fact.

A question of fact is raised whether defendant negligently caused claimant's injury by permitting an untrained volunteer to assist in the Wallkill Mess Hall kitchen during the Ramadan event. In this regard, claimant is unable, even after a grievance proceeding and completion of disclosure in this action, to offer any admissible proof that an untrained volunteer, as opposed to a trained cook, or someone else, lifted the kettle lid and caused claimant's injury.

If the person who allegedly lifted the kettle lid was a trained cook, a fact question additionally exists as to whether defendant was able to foresee such an act in view of the comprehensive training (according to claimant's own deposition testimony) which defendant provided to all of its cooks.

Contrary to claimant's contention, the alleged apology to claimant from the unidentified inmate who allegedly lifted the kettle lid is not an admission by defendant. The unidentified inmate had no authority to speak for defendant (see Raczes v Horne, 68 AD3d 1521, 1522 [3d Dept 2009]).

In addition, the grievance determination is not binding on this Court because, among other reasons, there is no identity of parties or issues. Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 (1985) requires that:

"The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action"

The issue in the grievance was whether correctional facility policy should require kitchen volunteers at religious special events to be given "closer supervision and training" while the issue in the present action is whether claimant is entitled to money damages from the State of New York for negligently causing claimant to be injured. Further, there was no full and fair opportunity to litigate that issue in the grievance proceeding.

Claimant's motion for partial summary judgment as to defendant's liability is denied. Claimant's request that the Court sanction the Head Cook is denied. Defendant's cross-motion for summary judgment dismissing the claim is also denied by reason of the previously identified issues of fact.

November 13, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion (M-92223) for Partial Summary Judgment, filed May 4, 2018;

2. Affirmation of Ryanne G. Konan, dated May 2, 2018, and attached exhibits;

3. Defendant's Notice of Cross-Motion (CM-92465) for Summary Judgment, filed June 27, 2018;

4. Affirmation of Michael T. Krenrich, dated June 26, 2019, and attached exhibits, including affidavit of Louis Capozzoli, sworn to June 27, 2018:

5. Claimant's Notice of Cross-Motion (CM-92507), filed July 9, 2018;

6. Affirmation of Ryanne G. Konan, dated July 3, 2018, and attached exhibits;

7. Reply Affirmation of Michael T. Krenrich, dated August 20, 2018.