Opinion
# 2018-054-097 Claim No. 125765
09-11-2018
AGRIPPA BROWN v. THE STATE OF NEW YORK
AGRIPPA BROWN Pro Se HON. BARBARA D. UNDERWOOD Attorney General for the State of New York By: Matthew Feinberg, Assistant Attorney General
Synopsis
Inmate claimant burned hand when removing asbestos from pipes. No negligence on part of defendant, no proof the State breached any duty.
Case information
| UID: | 2018-054-097 |
| Claimant(s): | AGRIPPA BROWN |
| Claimant short name: | BROWN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125765 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | AGRIPPA BROWN Pro Se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD Attorney General for the State of New York By: Matthew Feinberg, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 11, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim arises out of an injury that claimant sustained on January 10, 2014 during his incarceration at Sing Sing Correctional Facility (Sing Sing) while he was performing a work assignment.
Claimant was engaged in an asbestos removal project in the correction officers' locker room at Sing Sing when he sustained a ½ inch by ½ inch first degree burn to the palm of his left hand (Exs. B, C). Claimant contends that the State is liable for his injury based upon the negligent supervision of his civilian supervisor, William Muncey, who directed claimant to wet wrap a hot steam pipe without the appropriate high temperature glove bag. Claimant further argues that the State was negligent in its failure to provide claimant with a high temperature glove bag.
It is well established that "[t]he State - just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346 [1947] [citations omitted]) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]). The State correctional facilities owe a duty to provide inmates engaged in work assignments with reasonably safe work conditions (see Manganaro v State of New York, 24 AD3d 1003 [3d Dept 2005]). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). The inmate workers are also required to use ordinary care when engaging in work programs (Manganaro, 24 AD3d 1003). As was stated by the Court of Appeals in Ingersoll v Liberty Bank of Buffalo (278 NY 1, 7 [1938]):
"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury."
(see also Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]).
Claimant cites to specific sections of the manual that he was issued during his week long training program prior to his work assignment to support his claim that the State was negligent in failing to provide him with a high temperature glove bag (Ex. 6). Those sections are as follows:
"[s]team or hot water distribution networks should be shutdown, if at all possible, prior to insulation removal. If these systems must stay on line, special consideration must be given to prevent heat stress by workers as well as measures to avoid skin burns. Insulating suits and gloves for use under these circumstances are available . . .
[g]love bags are available . . . depending on specific applications requirements . . . [h]igh temperature glove bags . . . are also available . . .
[n]ever perform glove bag removal on hot pipes (over 150 degrees) unless special materials and equipment, designed for such removals, are available"
(id. at pp 13, 18, 19).
Critical to the establishment of claimant's case is whether claimant was directed by his supervisor to work on a hot pipe which was over 150 degrees without a high temperature glove bag (Ex. 6, p 19). The only proof offered by claimant as to the temperature of the pipe was his testimony that the temperature was "definitely" over 150 degrees because, according to claimant, "I would say that the burn of my type wouldn't be caused by a warm pipe." It is undisputed that claimant sustained a ½ inch by ½ inch first degree burn on the palm of his hand (Exs. B, C). The Court, however, finds that claimant's first degree burn alone, without any independent evidence of the pipe's temperature, is insufficient to establish that the pipe in issue was over 150 degrees. Additionally, it is noted that the State's witness, Daniel Gaston, the industrial superintendent for the asbestos abatement program for the New York State Department of Corrections and Community Supervision who had 30 years of experience in asbestos abatement, testified that high temperature glove bags were never purchased because inmate workers would never be directed to work on hot pipes that required the use of high temperature glove bags. Gaston further testified to Muncey's qualifications as a supervisor and the absence of any issues with Muncey's supervision of inmates working on the asbestos removal project. While claimant and his wife, Rosalind Brown, provided credible testimony that claimant's wife contacted the New York State Department of Labor (DOL) regarding claimant's work conditions and the State's purported failure to provide claimant and the other inmate workers with high temperature glove bags, claimant did not establish that DOL found any issues with the work site or the equipment issued by the State. Additionally, Gaston testified that DOL did not issue any citations to the State regarding any failure to provide a safe workplace or the failure to issue the proper equipment related to claimant's work assignment.
All quotations are to the trial audio recording unless otherwise indicated. --------
Thus, upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant failed to establish by a preponderance of the credible evidence the State was either negligent in its supervision of claimant while performing his work assignment or that the State was negligent in its failure to provide claimant with a high temperature glove bag. Without proof that the State breached any duty to claimant, the Court need not reach the issue of proximate cause. Accordingly, while it is unfortunate that claimant sustained an injury during his work assignment, claimant has failed to establish that the State was negligent and that such negligence was a contributing cause of his injury (see Chunhye Kang-Kim v City of New York, 29 AD3d 59, 59-60 [1st Dept 2006]).
Thus, the Court finds that claimant failed to meet his burden of establishing by a preponderance of the credible evidence that the State was negligent in its supervision of claimant while performing his work assignment and that the State was negligent in its failure to provide claimant with a high temperature glove bag.
Accordingly, the State's motion to dismiss made at the conclusion of trial, is hereby GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 125765.
September 11, 2018
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims