After trial, Court found defendant 95% liable for former inmate's claim for injuries received when tailgate of truck fell off while he was opening it, and defendant had prior knowledge of dangerous condition and multiple opportunities to remedy the condition.
|Claimant short name:||MEASE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||DOLCE PANEPINTO ATTORNEYS AT LAW
BY: Rene Juarez, Esq., of counsel
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Ray A. Kyles, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 1, 2019|
|See also (multicaptioned case)|
Claimant seeks to recover damages for personal injuries incurred when he was opening the tailgate of a pickup truck and it fell to the ground while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) and working at Cayuga Correctional Facility (Cayuga). Trial of the matter was bifurcated and was conducted in Syracuse, New York on June 26, 2018 before the Honorable Nicholas V. Midey, Jr.(1)
At trial, claimant testified that he was injured on December 26, 2012 while working at the Cayuga recycling facility. He had been working at this job assignment for five or six months. Correction officers (COs) would bring recyclables to the inmate work crew in the back of a pickup truck. On the day of his accident, claimant was the only inmate working on the recycling detail, but two COs were present.
The normal procedure is that a CO would bring cardboard, plastics and cans in the back of a pickup truck to a pole building for sorting. On this particular day, the CO driving the truck backed up to the cardboard compactor because most of the load was cardboard. Claimant said that normally he would get into the back of the truck to unload the recyclables. When he opened the tailgate to get into the back of the truck, the tailgate fell off the truck and onto the ground, injuring claimant's right shoulder in the process. He said that "both of [the COs] were standing right there" (T:16).(2)
Claimant testified that the tailgate on this truck had been difficult to open for several months, and that in order to open it the inmates would have to disengage the latch holding it in place on one side, rather than it being disengaged when the handle in the middle of the tailgate was lifted. Claimant said that any inmate who opened the tailgate would have been aware of this problem, as would the COs since they were always in the immediate vicinity observing the inmates. Claimant had not made any complaints about the tailgate prior to his accident, but did file a grievance after the fact. Claimant did not return to the recycling job due to his injury.
On cross-examination, claimant noted that after it fell, the COs picked up the tailgate and put it back on the truck. He said they observed it fall and "they [had] seen me go down on my knee and grab my shoulder" (T:24). Claimant stated that he initially thought he had only pulled a muscle, and did not believe it was necessary to immediately go to the infirmary. He said that after going to sick call the next day, he was advised not to use the shoulder and was sent to physical therapy for several weeks. He was eventually diagnosed with a rotator cuff tear by a Veteran's Administration provider after being discharged from Cayuga.
Joseph Sears also testified on claimant's behalf. At the time of the accident, he was working as a motor vehicle operator at Cayuga, and part of his duties included picking up parts needed for repairs at the facility from outside vendors, based upon information on purchase orders placed in his inbox daily. Sears identified three documents(3) as purchase order requests of the type he would receive daily. The first was dated July 10, 2012, and requested purchase of two tailgate cables. The justification written on the purchase order states: "Tail Gate Cables on 01-4021 (cay77) Dodge 1500 . . . Need to be replaced."(4) The second purchase order was dated August 14, 2013, and the justification given was "01-4021 (Cay 77) Dodge P/u Needs Tail Gate Cables Replaced."(5) The third purchase order is dated November 17, 2014. The justification states: "Cay 77 01-4021 needs Tailgate Strapes [sic] they are broken."(6) Sears testified that purchase orders for vehicle parts would be filled out by the facility's garage mechanic. On cross-examination, Sears acknowledged that he had no personal knowledge regarding the specific vehicle designated as Cayuga 77.
Thomas Napoli, the inmate grievance supervisor at Cayuga at the time of claimant's accident, also testified on claimant's behalf. Napoli processed the grievance(7) claimant filed regarding his injury. He indicated that prison facilities identify their vehicles by number, and that the truck number for the truck involved in claimant's injury was Cay(uga) 77. Napoli stated that claimant's grievance was granted to the extent that the vehicle involved had already been repaired, and that it further indicated that claimant was receiving appropriate medical care. Napoli further noted that claimant appealed the grievance to the facility's superintendent, who responded in part: "[t]he vehicle in question was repaired in a timely manner. A vehicle will not be used if it does not pass a safety inspection."(8) Napoli was asked whether he would have verified that the repair was actually performed, and he stated that he would not have done so, and that the information that the vehicle had been fixed would have been provided by the facility's superintendent.
Claimant also introduced into evidence the deposition testimony of both Joan Daly and David Stallone. Daly is Deputy Superintendent for Administration at Cayuga, and was in that position at the time of claimant's accident. She was responsible for approval of purchase orders such as the ones requesting purchase of the tailgate cables requested by the facility's mechanic. She did not know whether the tailgate cables had been purchased, acquired and the repairs made between the date when it was requested on the purchase order dated July 10, 2012 and the date of the identical request on August 14, 2013. She had not seen the third purchase order request dated November 17, 2014 prior to the date of her deposition. She acknowledged that the third purchase order was requested by P. McQueeney, whom she said was "the current motor equipment mechanic."(9) She further acknowledged that this purchase order request had handwritten notations indicating "got parts," then the notation "not done," with the "not" crossed out. She said that she did not know where the Superintendent got the information that the repair to the tailgate of Cayuga 77 had been performed in a timely manner. She had not seen any documents indicating that a repair was made to Cayuga 77 prior to the filing of claimant's grievance on February 7, 2013. She also stated that a facility vehicle could be taken out of service by the motor equipment mechanic, and any employee could recommend that a vehicle be taken out of service.
Daly said that records for each facility vehicle are maintained in a file folder designated for each specific vehicle. The folder for Cayuga 77 apparently contained a repair sheet(10) for the vehicle, copies of the vehicle inspections, and copies of the three purchase order requests. Daly believed that the Cayuga 77 vehicle was the vehicle most often used to pick up recycling and cardboard and take it to be sorted.
David Stallone was the Superintendent at Cayuga at the time of claimant's accident. At his deposition, he said that when he was notified that he would be deposed he spoke to both Napoli and Daly. Napoli sent Stallone a copy of claimant's grievance for his review. Stallone stated that the Superintendent's response(11) noted on the grievance would have been prepared by Napoli. Stallone said he did not review anything that confirmed when the vehicle was repaired, but would rather have left that to Napoli and the grievance committee. When asked how Napoli got the information that the vehicle had been repaired in a timely manner, Stallone speculated that Napoli would have contacted the facility's mechanic. Stallone did not discuss the matter with the mechanic, Vince Avoli, prior to his deposition because Avoli was no longer employed at Cayuga. Stallone again asserted that he would not have known whether or when the vehicle was repaired, but would have instead relied on Napoli for that information.
Stallone also signed the first purchase order request. He said that after a part had been obtained in response to a purchase order request, there should be a log indicating that the vehicle had actually been repaired. Stallone never saw any documents that confirmed that a repair had been made to the Cayuga 77 vehicle. He never inspected the vehicle himself. Stallone said that if a work order had been filled out requesting a repair to a vehicle (perhaps by a CO), that work order would have been kept in the file folder maintained for each vehicle.
As set forth previously herein, Claimant's Exhibit 2 is the Repair/Service Record for the facility vehicle designated Cay 77 01-4021. The first entry on that document is dated June 29, 2012. There is no indication on that document that the tailgate cables were repaired or replaced prior to December 26, 2012, the date of claimant's accident, although it appears that there were five different repairs made to the vehicle between June 29, 2012 and that date. There are entries dated May 7, 2014 and October 15, 2014, but neither of those pertain to the tailgate. On January 6, 2015 there is a notation of several repairs to the vehicle. One of the repairs noted is the replacement of the tailgate cables. The document contains no other reference to tailgate cables.
Claimant rested his case at the close of Napoli's testimony. Defendant presented no witnesses. The Court reserved decision, and the parties submitted post-trial memorandums.
It is undisputed that the State, through its correctional authorities, owes inmate work crews a duty to provide safe equipment, as well as adequate warnings and proper instruction in the safe use of that equipment (Martinez v State of New York, 225 AD2d 877 [3d Dept 1996]; Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]). Despite this obligation, however, defendant is "not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]). Moreover, an inmate is required to exercise a reasonable degree of care while working on a work crew, with equipment (Martinez, 225 AD2d at 878; see also Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]). However, the special constraints under which an inmate operates also must be considered, including the risk of potential disciplinary action if the inmate challenges an assigned task (Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006]; Lowe v State of New York, 194 AD2d 898, 899 [3d Dept 1993]).
In this instance, claimant's testimony that the act of the tailgate falling off the truck caused his injury was not controverted by defendant. Further, the evidence established that an order was placed on July 10, 2012 for broken tailgate straps for the truck involved in claimant's injury, which occurred more than five months after that order was placed. Moreover, two additional orders were later placed for the same items for the same truck. The repair record for the truck indicates that the tailgate straps were repaired shortly after the third order to purchase the tailgate straps, but no such indication is present after the first two orders.(12)
The testimony regarding the response to claimant's grievance in which defendant claimed that repairs to the vehicle had been timely made was clearly contradictory. The grievance supervisor stated that this information would have been provided by the facility's Superintendent. The Superintendent stated at his deposition that this response would have been prepared by the grievance supervisor and his committee, and that he would have relied upon that representation. The Court finds that defendant failed to establish by any credible evidence that repairs to the broken tailgate straps had been made prior to claimant's accident. Moreover, it is clear based upon the first order for the straps that defendant's employees were aware of this dangerous condition prior to claimant's accident. The Court accordingly finds that claimant has established an adequate basis for defendant's liability by a preponderance of the evidence.
While claimant did not engage in risky behavior in his actions leading up to the accident, he did testify that he was aware that there were problems with the tailgate, and that he had worked on the recycling detail using that vehicle for a number of months. Claimant must consequently be charged with some small responsibility for failing to take sufficient care in opening the tailgate, although he could hardly have expected the tailgate to actually fall off. Based upon the foregoing and upon due consideration, the Court hereby apportions liability to defendant in the amount of 95% and to the claimant in the amount of 5%.
The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied. Let interlocutory judgment be entered accordingly.
May 1, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
1. The claim was reassigned to this Court after the trial was concluded and the parties' memoranda submitted, but before decision was rendered. By stipulation "so ordered" on Apr. 30, 2019, the parties agreed to have this Court render a decision based upon the record of the trial, including the exhibits that were received into evidence.
2. All references to the trial transcript are designated by "T."
3. Claimant's Exhibit 1.
4. Id. at 1.
5. Id. at 2.
6. Id. at 3.
7. Claimant's Exhibit 3.
8. Id. at 3.
9. Claimant's Exhibit 4 at 27.
10. The repair sheet which Daly referred to in her deposition was subsequently introduced at trial as Claimant's Exhibit 2.
11. The response states that the vehicle was repaired in a timely manner.
12. At trial, defendant did not object to the admissibility of the vehicle's repair record. In its post-trial submission, defendant comments in a footnote that it is well-established that post-accident repairs or modifications are generally not admissible to show negligence, citing Ramundo v Town of Guilderland (142 AD2d 50, 54 [3d Dept 1988]). The Court would note that it did not consider the documentation of the post-accident repair as an indication of negligence, but rather that this evidence strongly suggested that any such repair would have been documented if it had taken place after the first order had been placed, and prior to claimant's accident.