Opinion
# 2012-040-014 Claim No. 114397
03-26-2012
PRENDERGAST v. THE STATE OF NEW YORK
Synopsis
Following trial, Court finds State failed to maintain a safe workplace for Claimant. Court finds Claimant 20% responsible for his injury. Case information
UID: 2012-040-014 Claimant(s): JOHN PRENDERGAST Claimant short name: PRENDERGAST Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114397 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY ANDREW F. PLASSE, P.C. Claimant's attorney: By: Andrew F. Plasse, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Douglas Kemp, Esq., AAG Third-party defendant's attorney: Signature date: March 26, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, John Prendergast, asserts that he sustained a burn injury to his left leg and foot on May 8, 2004 while incarcerated at Coxsackie Correctional Facility ("Coxsackie"), located in West Coxsackie, New York. For the reasons set forth below, the Court finds, by a preponderance of the credible evidence, that Defendant is 80% responsible for Mr. Prendergast's injury. The State failed to maintain a safe workplace because it did not provide Claimant with a reasonably safe workplace and equipment. The Court also concludes, by a preponderance of the credible evidence, that Claimant is 20% responsible for his injury on account of his failure to exercise ordinary care while pursuing a dangerous course of conduct.
A bifurcated trial, addressing liability issues only, was held on October 18, 2011, at the Court of Claims in Albany, New York. There were three witnesses: Claimant; Carl Barton, a fellow inmate who witnessed Claimant's accident; and Thomas M. Frese, Coxsackie's food service administrator. Thereafter, the parties requested and were granted additional time to order a transcript and to submit post-trial memoranda.
FACTS
Claimant and Mr. Barton usually worked together as cooks in Coxsackie's kitchen. Mr. Frese was responsible for the overall kitchen operation, including ordering food, sanitation, hygiene, inmate training, and equipment procurement. Approximately 60 inmates worked in the kitchen in two shifts of 30 inmates each, in a rotating schedule of four days on and three days off. In addition, three civilian cooks worked in the kitchen, as well as two correction officers. Claimant stated that the civilian cooks trained him to use various tools and equipment in the kitchen.
Claimant and Mr. Barton typically used two kettles for cooking, each of which held approximately 80 gallons. A third kettle was used to keep a ready supply of hot water available. Claimant and Mr. Frese each agreed that the kettles in the Coxsackie kitchen looked like the picture of a "fully jacketed gas kettle" in Exhibit 3 (see Ex. 3-A [Claimant further agreed that a drain valve was located approximately where it is on that illustration on the bottom of the outside of the kettle (small green circle)]), but that the drain valve itself was more like the one depicted on the image of a "gas kettle" that also is contained in that exhibit (see Ex. 3-B [Claimant identified valve circled in blue]).Claimant further stated that the drain valves he used were "almost identical" to the illustrations in Exhibit 4 and Mr. Frese also agreed that they were similar (Tr., pp. 30, 96). The inmates cooked a variety of foods, including oatmeal, farina, hot cereal, as well as rice, pasta, and potatoes.
The parties stipulated that Exhibits 1-4, inclusive, were not offered as precise examples of the equipment and/or tools utilized in the Coxsackie kitchen. Rather, they illustrate similar sorts of items in order to convey the size, shape, and configuration of the equipment/tools that were used there.
Kettles had to be cleaned after each meal was prepared. After the food was removed, any remaining liquid was drained from each kettle by opening the drain valve, which was a two-step process. First, a nut on the outside of the drain valve was unscrewed, by hand, thereby releasing the water pressure (see Ex. 4-A [Claimant identified the middle green circle on illustration #1 as the nut that had to be loosened]; see also illustration #2). Second, a spigot or faucet on the end of the drain valve was pulled out several inches, releasing a rubber gasket on the inside of the drain valve that was connected to the nut (see Ex. 4-B [Claimant agreed, blue circle on illustration #1 indicated the spigot that had to be pulled]). The liquid then could flow from a downward-facing spout on the underside of the drain valve into a metal grate that ran the length of the kitchen floor (see Ex. 4-A [Claimant identified the right-most green circle on illustration #1 as the downward-facing spout]). A round screen, about eight to ten inches in diameter, also sat in the bottom of the kettle, the purpose of which was to trap any food before it reached the drain valve. The empty kettle then was filled about one-third of its capacity with cold water. The inmates dipped stainless steel and green industrial pads into a solution of soapy water and sanitizer and scrubbed both the interior and the exterior of the kettle.
After the kettle had been washed, the drain valve also had to be cleaned. To perform that operation, the spigot on the end of the drain valve was turned and then pulled so that the entire spigot assembly could be removed from inside the drain valve. It was cleaned separately in a sink (see Ex. 4, illustration #3 [showing removal of spigot assembly]). The interior of the drain valve could then be accessed and cleaned with the soap/sanitizer solution. A two to three foot long tool called a kettle brush was used to clean the inside of the drain valve, which, in turn, had a diameter of about two to four inches (see Ex. 2 [illustration of kettle brushes]). Claimant said that the kettle brush would be shoved through the hole in the drain valve into which the spigot assembly fit until the end of the kettle brush extended into the inside of the kettle itself (see Ex. 4 [illustration #4 shows kettle brush being inserted into drain valve]). He said that Mr. Barton, who was already working in the kitchen, showed him how to use the kettle brush on his first day working there.
Claimant and Mr. Barton reported that, at some point in February 2004, the only kettle brush in the kitchen went missing. They each made several verbal requests to the civilian cooks, as well as Mr. Frese, that it be replaced. The inmates further said that, despite Mr. Frese's assurances that a new brush had been ordered, it was not replaced during the next several months.
Mr. Frese, by contrast, said that kettle brushes "[a]bsolutely" were available during that time period (Tr., p. 99). He further testified that, because kettle brushes essentially constituted a metal rod with bristles on one end, they were kept by the COs in the security office and were handed out by them to the inmates upon request. At the same time, Mr. Frese kept a backup supply of kitchen utensils in a closet at the back of his office. He could not recall anyone reporting that kettle brushes were unavailable and said that, if they had, another one would have been ordered.
The inmates said that, in lieu of the missing kettle brush, they tried to clean the inside of the drain valve with a rolled up green industrial pad. The pads proved to be less effective than the brush at cleaning the interior of the valve, however, and the drain valve periodically would clog, causing the kettle to drain very slowly. They encountered no such blockages when the kettle brush was available to clean the drain valve.
Claimant recalled an incident toward the end of February 2004, when he and Mr. Barton were trying to drain a kettle after cooking macaroni, but the water was flowing very slowly out of the drain valve. He said that Mr. Frese happened to come into the kitchen and told them to remove the macaroni quickly because he did not want to waste a kettle full of pasta by overcooking it. Claimant said that Mr. Frese directed the inmates to remove the nut and the spigot assembly. Mr. Frese then took a cooking paddle (see Ex. 1-A [Claimant identified cooking paddle circled in green, though he said the handle was much longer than as depicted in the picture]), turned it upside down, and shoved it through the hole and on into the kettle itself. When he pulled the paddle back out, hot, boiling water and macaroni came spewing out both vertically, through the downward-pointing spout, as well as horizontally, through the hole in the drain valve into which the spigot assembly fit. Mr. Frese then instructed Mr. Prendergast, who was wearing elbow-length, heat resistant, industrial gloves, to put the spigot assembly back in place in order to stop the flow from the horizontal hole. After that, the water drained freely from the downward spout. Mr. Barton also testified that the civilian cooks had told him about using the paddle to unclog the drain valve. Claimant said that he repeated that operation, removing the spigot assembly and shoving the paddle through the hole created thereby, once or twice a week over the course of the next several months. Mr. Barton, likewise, testified that the procedure was employed eight to ten times while they waited for a new kettle brush to be provided.
Mr. Frese, on the other hand, denied that he ever instructed Claimant to insert the end of a paddle into the drain valve to remove an obstruction. He said he "would never do that" (Tr., p. 101). First, he said it was a "safety hazard" because it was inevitable that hot water would come out of both openings if the nut was loosened and the spigot assembly removed while the liquid still was in the kettle (Tr., p. 101). Second, he noted that Coxsackie's was a new, "showroom" kitchen and he would not risk damaging the drain valve on such an expensive (about $15,000) piece of equipment (Tr., p. 102). He said that the kitchen was renovated around 2001 or 2002. Mr. Frese said that he would have been upset if he had ever seen an inmate insert a paddle handle into the drain valve. He further said that he would have counseled, and possibly disciplined, that individual. Moreover, he said that there were other ways to cool macaroni, or other food. For example, ice could be dumped into the kettle to rapidly bring down the temperature. He did not believe that slow draining kettles were a problem while Claimant worked in the kitchen unless, perhaps, someone neglected to put the screen in the bottom of the kettle.
Messrs. Prendergast and Barton were working in the kitchen cooking pasta or rice in one of the kettles on the morning of May 8, 2004. When it was time to drain the water from the food, Claimant said that the liquid "was not coming out very fast" (Tr., p. 43). The inmates said that they performed the same operation described above, with Claimant removing the spigot assembly and Mr. Barton using the paddle to free the blockage in the drain valve (see Ex, 4-C [blue dot shows where Mr. Barton inserted paddle into drain valve]). When Mr. Barton removed the paddle, boiling water rushed out both from the vertical, downward spout, as well as the horizontal hole created when the spigot assembly was removed. Claimant was wearing the elbow-length, heat resistant, industrial gloves and tried, unsuccessfully, to tighten the nut on the drain valve. At some point while he was trying to tighten the nut, Mr. Barton said the valve became too hot for Claimant to hold onto any longer, and Claimant dropped the valve. The hot, gushing water got into Mr. Prendergast's boot and burned his left leg and foot, although Claimant was not certain whether he was burned by water that came out of the vertical, downward spout, or the horizontal hole into which the spigot assembly fit.
Mr. Frese did not recall being present when Claimant was injured, or if Mr. Prendergast missed any time from work. In fact, he said that he probably did not become aware of the accident until the time for his deposition in connection with this Claim. He further noted that 60 inmates were under his supervision in the kitchen and that many inmates come and go from Coxsackie. Moreover, he believed the accident occurred on a Saturday,at the end of the inmates' weekly shift. Thus, they would not be back at work until the following Thursday. He said he might not have been in the kitchen on that next Thursday or Friday, or he could have been involved with other matters. As a result, he said that two weeks could have elapsed from the time of the accident until the next time he saw Claimant and Mr. Barton.
The Court takes judicial notice of the fact that May 8, 2004 did, in fact, fall on a Saturday.
LAW
To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, [3d Dept 2011]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, Ct Cl, Claim No. 107632, June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
When the State "acts in a proprietary capacity" by engaging in activities traditionally performed by private entities, it is subject to the same principles of tort law that govern those private actors (Miller v State of New York, 62 NY2d 506, 511-513 [1984]; see Sebastian v State of New York, 93 NY2d 790, 793-794 [1999]). The Court concludes that Defendant's operation of a kitchen and inmate food service work program constitute such a proprietary function.
Accordingly, inmates 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 (Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]; D'Argenio v Village of Homer, 202 AD2d 883, 884 [3d Dept 1994]; Garcia v State of New York, Ct Cl, Claim No. 112312, December 24, 2009, Ferreira, J. [UID No. 2009-039-160]). 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 (see Killeen v State of New York, 66 NY2d 850 [1985]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]). 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 (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]).
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 (Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]; Carter v State of New York, 194 AD2d 967 [3d Dept 1993]). 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 (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]).
DISCUSSION
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has met his burden, and established, by a preponderance of the credible evidence, that Defendant was negligent in connection with his burn accident at Coxsackie. At the same time, as discussed below, the Court further determines that Claimant must bear some culpability for his accident.
As a preliminary matter, the Court notes that each witness provided generally sincere and forthright testimony. Nevertheless, the witnesses were not equally persuasive. The Court found the recollections of the inmates, Claimant in particular, to be more complete, persuasive, and, thus, credit-worthy, than those of Mr. Frese. It is understandable, perhaps, that some of the points in controversy would be recalled more vividly by Claimant than by Mr. Frese since the latter was in charge of Coxsackie's overall food service operation and, thus, had many more responsibilities that required his attention. In fact, Mr. Frese did not even know that Claimant had been injured until depositions were being conducted during disclosure. Moreover, the Court notes Mr. Frese's own very high opinion of Claimant as an "[e]xcellent" worker, "eager," "intelligent," and interested in bettering himself (Tr., pp. 100, 110). That assessment comports with the Court's own observation of Mr. Prendergast's straightforward, credible demeanor at trial. The Court also rejects Defense counsel's suggestion that Claimant was rushing in order to go on break. Mr. Prendergast denied that, and further stated that cooks were not able to take such breaks because they needed to begin working on the next meal as soon as the previous meal was finished. Moreover, the suggestion is inconsistent with Mr. Frese's unstinting praise for Claimant's work habits.
The Court finds that the inmates did make repeated requests that the kettle brush be replaced, even if Mr. Frese sincerely could not recall anyone having done so (cf. Muhammad v State of New York, supra at 808 [no State liability where safety gloves were readily available upon request]). The Court further concludes that the kettle brush was not replaced for several months preceding Claimant's accident. Mr. Frese simply was mistaken when he said that they "absolutely" were available. In that regard, Claimant's counsel points to an apparent disconnect in Mr. Frese's testimony. On the one hand, he said that kettle brushes were kept by the COs, presumably because there was a risk that they might be wielded as weapons. On the other hand, Mr. Frese said that extra supplies, including those same kettle brushes, were kept in his office closet, which appears to be inconsistent with the security concern necessitating that the kettle brushes be under the control of the COs. Moreover, and in any event, it was the uncontroverted testimony of both inmates that, without a kettle brush, they had to use rolled up green industrial pads to clean the interior of the drain valve. There would seem to be no reason for the inmates to adopt that more arduous and less effective cleaning regimen if a kettle brush had been available.
The Court also finds that organic matter built up and periodically blocked the inside of the drain valve because there was no kettle brush to clean it. Mr. Barton said that food clogged the hole (Tr., pp. 72, 77). Claimant thought so too, although he conceded that he did not know for sure what caused the drain valve to clog (Tr., pp. 40, 61-62). They said that such blockages did not occur, however, when they had a kettle brush to clean the drain valve. Mr. Frese agreed, moreover, that the kettle brush was the "specific tool" to clean the drain valve (Tr., p. 97; see also p. 109). He said it was used to "prevent build up" of things like sauce, soup, or "starch that is stuck to the valve itself" (Tr., p. 110) by cleaning out "any debris or you know something that would stick in [the drain valve] and cause bacteria," otherwise food, starch, and bacteria would be transferred from one batch of food to the next (Tr., p. 97). Thus, the Court finds that it was foreseeable that blockages would occur if, as in this case, the specific cleaning tool intended to prevent such accumulations of organic matter was unavailable for several months. The State's contention that Claimant did not know what clogged the drain valve is unavailing.
The Court credits Claimant's testimony that an incident occurred at the end of February 2004 during which Mr. Frese instructed the inmates to loosen the nut and remove the spigot assembly so that he could use a paddle to remove a blockage in the drain valve. There is no evidence that the inmates were given instructions regarding the safe performance of that operation. Indeed, it appears that no such instructions could be given since, as Mr. Frese stated, the procedure itself was a "safety hazard" because it was inevitable that hot water would come out of both openings if the nut was loosened and the spigot assembly removed while hot liquid still was in the kettle. Moreover, Mr. Barton said that civilian cooks told him about using the paddle to clear blockages, further indication that Defendant's employees utilized that method and instructed the inmates to employ it.
Accordingly, and for the foregoing reasons, the Court concludes that the State did have a common-law duty to provide Claimant, as an inmate engaged in a work program, with a reasonably safe workplace, including reasonably safe equipment, as well as sufficient warnings and instruction for their safe operation. Defendant breached that duty, however, because the safety measures taken were not "reasonable and adequate under the circumstances"(Maldonado v State of New York , supra at 631). The State failed to provide the inmates with a kettle brush, the "specific tool" they needed in order to properly clean the interior of the drain valve assembly, or any alternative safe method of doing so. As a result, organic material collected in the drain valve and periodically blocked it. When this occurred, the inmates followed the unsafe practice, shown to them by Mr. Frese and described to Mr. Barton by the civilian cooks, of using a paddle to try to clear the blockage. Thus, the Court concludes that Defendant's failure to provide a safe method for cleaning the interior of the drain valve assembly was a substantial factor in the events that caused Claimant's injury.
Finally, the Court determines that Claimant must bear some responsibility for his accident. Mr. Prendergast did agree that he knew hot water would rush out of the drain valve when the paddle was removed. He also knew that he needed to wear protective gear and to keep his feet away from the hot water that was draining. The need for care must have been impressed upon him further because he said that he performed this operation once or twice a week over the course of several months. Thus, Claimant cannot avoid some measure of responsibility for failing to exercise ordinary care while pursuing a dangerous course of conduct. At the same time, the Court takes "into consideration the special circumstances that confront an incarcerated inmate in assessing" any comparative negligence owing to the fact that the inmate must choose between following orders, or risking disciplinary sanctions (Bernard v State of New York, 34 AD3d 1065, 1068 [3d Dept 2006]). In this instance, Claimant was not engaged in a "relatively simple task" (cf. Layou v State of New York, Ct Cl, Claim No. 109621, August 6, 2007, Midey, J. [UID No. 2007-009-174] [Claimant 50% liable for burns sustained when top of lid came off while attempting to rotate 10-gallon urn filled with hot coffee]; see also Spiratos v County of Chenango, 28 AD3d 863 [3d Dept 2006] [Defendant not liable where inmate burned when he lost grip and accidently dropped one-gallon aluminum vessel containing boiling water]; Wright v State of New York, Ct Cl, Claim No. 112408, Motion Nos. M-75212, CM-75246, November 18, 2008, Collins, J. [UID No. 2008-015-088] [Defendant had no duty to train/instruct inmate re: how to remove bags of cabbage from pot of boiling water]). Rather, the Court finds that Claimant was attempting to perform an inherently-dangerous operation that he had been instructed to implement. Accordingly, the Court apportions 80% of the liability for this accident to Defendant and 20% to Claimant.
CONCLUSION
By a preponderance of the credible evidence that was presented, the Court finds Defendant 80% responsible for the injuries sustained by Claimant in this accident and Claimant 20% responsible.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter interlocutory judgment accordingly. The Claim will be scheduled for trial on the issue of damages as soon as practicable. Instructions concerning the creation of a discovery schedule will be provided under separate cover.
March 26, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims