Opinion
# 2016-041-510 Claim No. 124237
11-01-2016
RUBEN RIOS AND MARY RIOS v. THE STATE OF NEW YORK
STADTMAUER & ASSOCIATES By: Marc Stadtmauer, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas Kemp, Esq.
Synopsis
Claim alleging that defendant negligently caused claimant to be injured by defective portable fan is dismissed after trial where portable fan was not integral to, or a commonly used tool or piece of equipment in, claimant's work as an inmate porter and where no proof was offered to show that defendant either created, or had notice of, defective condition of portable fan.
Case information
| UID: | 2016-041-510 |
| Claimant(s): | RUBEN RIOS AND MARY RIOS |
| Claimant short name: | RIOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124237 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | STADTMAUER & ASSOCIATES By: Marc Stadtmauer, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas Kemp, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | November 1, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Ruben Rios (claimant) was injured on September 7, 2013 while an inmate in defendant's custody at Ulster Correctional Facility (UCF). Claimant alleges that he suffered a lacerated left thumb while handling a portable, upright pedestal fan located in the facility's infirmary, where claimant worked as an inmate porter. The fan had apparently been pressed into use because the facility's central air conditioning had been turned off and that particular day was very hot.
All references to claimant are to Ruben Rios alone.
The fan's rotating blades were shielded by a protective wire cowling or shroud, which, upon inspection after claimant's accident, was missing one wire spoke of about 18 inches in length. Claimant alleges that in the process of handling the fan for a second time that day, his thumb slipped through the widened opening in the cowling occasioned by the missing spoke and claimant was injured. Claimant and his wife, derivatively, bring this action.
Three witnesses testified at trial - - claimant, Correction Officer Yetunde Awopetu, who was stationed at the infirmary post the day in question, and Correction Officer Mark Keller, who had worked in the facility's infirmary for the six to seven previous years and who, while not observing claimant's accident, immediately responded to the scene after hearing claimant's yells of distress.
Additionally, certain deposition testimony of Bryan Brainard, deputy fire and safety officer at UCF, was read into the record. Defendant offered a portion of claimant's pre-trial deposition testimony into evidence (Defendant's Exhibit B) which claimant objected to as "uncertified." The Court reserved decision on claimant's objection and expressly permitted the parties to submit post-trial "submissions of any character" to address whether or not Exhibit B should be admitted. On the day following trial, defendant provided the Court and claimant with information (a copy of which is attached hereto and made a part hereof, as Court Exhibit 1) that defendant had previously supplied claimant with a certified copy of claimant's deposition identical to that marked as Exhibit B. Claimant has not disputed the information defendant provided. Those facts, combined with undisputed trial representations that claimant, in response to earlier receiving the transcript, failed to correct and/or sign the provided transcript within 60 days, as instructed by CPLR 3116(a), obviate claimant's objection. Claimant's objection is overruled and Exhibit B is admitted into evidence.
Each of the three trial witnesses was less than stellar. Their testimony ranged from limited or confused, at a generous description, to incredible. That claimant was injured by handling a portable fan on September 7, 2013 at UCF was undisputed. Little of consequence beyond that was established.
September 7, 2013 was Officer Awopetu's first day of being stationed at the UCF infirmary. Claimant, though, had been a porter in the infirmary for a number of months. All parties agreed that given the heat of the day, in late afternoon Officer Awopetu instructed claimant to move the fan in question down a hallway and to position it to cool her location. Claimant did so without incident after unplugging the fan. Claimant insists that the officer directed him to position a roll of toilet paper against the stand of the fan to better angle the rotating blades toward her. Officer Awopetu denied this. Officer Awopetu testified that claimant never advised her of the fan's condition or that it was broken, nor did anyone else advise her that there was anything "wrong" with the fan.
Both claimant and Officer Awopetu left the infirmary for dinner. Upon claimant's return to the infirmary a short while later, Officer Awopetu was no longer present. Claimant testified that the fan was now rattling and shaking. Believing that he was under a continuing "order" of Officer Awopetu to station the fan to cool her location and fearful of being written up for not following orders, claimant began to again adjust the fan. No one else was present. Claimant testified that, as the fan was running, in the process of again attempting to prop up the roll of toilet paper (which he said had fallen), his left thumb entered the area of the cowling unprotected by the missing spoke, and his finger was lacerated.
Claimant additionally testified that an "Officer La Cosa," regularly stationed in the infirmary during claimant's tenure there, had told him about two fans that were located in the infirmary, that claimant was never to touch "my two fans," that they (both fans, apparently) did not work properly, were dangerous and malfunctioning, and that were anybody to ever tell claimant to touch them, claimant was to consult Officer Keller.
Claimant repeatedly invoked Officer La Cosa's name and further testified that the officer had reported using dental floss to secure the rattling fan. Claimant emphasized at several points that Officer La Cosa had directed claimant to never touch "his" fans due to their condition, and that after claimant was injured, Officer La Cosa reproached him about ignoring the officer's earlier admonitions to never touch the fans. Notwithstanding these asserted warnings of Officer La Cosa, claimant denied having any prior knowledge about a defect in the cowling of the fan that injured him. Even more contradictorily, claimant expressly acknowledged in his pre-trial deposition to having prior knowledge that "the fans had protective coverings [around the fan blade] that were broken" (Exhibit B, pp 38-39).
A portion of Deputy Fire and Safety Officer Brainard's deposition testimony was read into the record. Beyond acknowledging, upon his inspection of the fan subsequent to claimant's injury, the dangerous condition of the fan in question at that time, the most salient aspect of his testimony was that Officer Brainard indicated that he did not know who Officer La Cosa was.
The final trial witness, Officer Mark Keller, testified that he had worked in the infirmary for several years and that for a number of years preceding claimant's accident, he was a regularly assigned infirmary officer on the 3:00 p.m. to 11:00 p.m. shift, and as such, was claimant's "boss," an assertion which contradicted claimant's testimony that Officer La Cosa was regularly claimant's boss. Significantly, Officer Keller also testified to being unaware of any individual named Officer La Cosa, and further, to being unaware of any Officer La Cosa who worked in the infirmary.
Officer Keller also testified to conducting daily safety inspections in the infirmary, including its equipment, and that he had never previously observed, nor did he observe on September 7, 2013, a defect in the fan in question. Finally, Officer Keller testified that claimant never spoke to him about the fan on the day of the accident, had never complained to him about the fan (contradicting claimant's testimony), nor was the officer previously aware of any problems with the fan prior to claimant's injury, despite having inspected it hundreds of times prior to September 7, 2013.
Claimant's deposition testimony and trial testimony were, by turn, self-serving, confusing, internally contradictory, contradictory of each other and, at times, incredible. Claimant demonstrated several substantial testimonial deficiencies about a number of material and relevant facts. For example, claimant testified either confusingly or inconsistently about whether he spoke at all with Officer Keller on the day of his accident about the dangerous condition of the fan, whether he consulted with Officer Keller about the fan's condition before or after he first turned the fan on at Officer Awopetu's direction, whether a roll of toilet paper was ever utilized that day (claimant never mentions in his deposition testimony using toilet paper to stabilize the fan) and whether prior to the accident he knew or didn't know about the defective nature of the fan. Further, by claimant's testimony and the testimony of Officers Awopetu and Keller at trial, a serious question arose about whether or not an Officer La Cosa, the individual claimant repeatedly testified had forewarned him of the fan's malfunctioning condition and dangerousness and the individual who had previously warned him to always avoid handling the fan, even existed.
The Court found claimant's testimony, taken as a whole, so deficient and, on several material points, incredible, that the Court discredits claimant's testimony in its entirety, and finds that it provided no evidence of material facts with probative value.
Claimant, in his post-trial submission, seeks to cast his claim as one involving workplace safety/workplace equipment. The Court disagrees and views the facts of the case as a premises liability claim.
First, no proof was offered that the portable fan, regularly stored in a supply room, was integral to or a commonly used tool or piece of equipment in claimant's work as an inmate porter in the infirmary. Claimant described his duties as a porter, variously, as delivering food trays, taking garbage out, cleaning floors and doing laundry. Moreover, the fan's presence on September 7, 2013 was aberrational and uncommon, necessitated only because the facility's central air conditioning was not in use that day, and because the day was unusually hot. The defective fan presented an environmental condition similar to the potential danger that a torn rug or a rain slicked floor would present, as in a premises liability claim.
Nevertheless, the law of each theory of liability will be examined.
The State of New York's correctional authorities are under a duty to provide reasonably safe equipment and training to inmates participating in facility work programs (Havens v County of Saratoga, 50 AD3d 1223, 1224 [3d Dept 2008], lv dismissed1 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]).
However, defendant "is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Muhammad, 15 AD3d at 808 [internal quotation marks and citations omitted]).
Additionally, "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]).
Importantly, where the alleged failure to provide a safe workplace arises from a dangerous condition on the work site, instead of the methods or materials used by claimant in performing the employer's work, liability arises when the evidence shows that defendant created the dangerous condition causing the injury or when defendant failed to remedy the dangerous condition of which it had notice (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011]).
Minorczyk v Dormitory Auth. of the State of N.Y. (74 AD3d 675 [1st Dept 2010]), explains:
"Because the Labor Law § 200 and common-law negligence claims were based not on the injured plaintiff's employer's methods or materials but on a dangerous condition on the site, it was not necessary to show that Liro or the City exercised supervisory control over the manner of performance of the injury-producing work; the only issue was whether they had notice of the condition."
Next, with respect to premises liability claims, "[a]s a landowner, [defendant] owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], lv denied 68 NY2d 611 [1986]; see Preston v State of New York, 59 NY2d 997, 998 [1983]).
However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).
In a premises liability case, "claimant has the burden of establishing a dangerous or defective condition that defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" (Gonzalez v State of New York, 60 AD3d 1193, 1194 [3d Dept 2009], lv denied 13 NY3d 712 [2009], rearg denied 15 NY3d 820 [2010]; see Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept 2007]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Malossi v State of New York, 255 AD2d 807, 807 [3d Dept 1998]). The existence of a dangerous condition is generally a question of fact dependent upon the particular facts and circumstances of each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).
Further, the defendant's liability for a dangerous condition is dependent upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).
Viewed under each theory, claimant must still prove that defendant had actual or constructive notice of either the defective workplace equipment or the defective premises condition, respectively. Ultimately, under either theory, the claim fails as a matter of trial proof.
The claimant failed to prove any material facts. More specifically, he failed to prove, as was his obligation, how long the fan's defective condition had existed prior to his accident, and he further failed to prove that defendant had either actual or constructive notice of its defect. Accordingly, the claimant failed to prove his claim by a preponderance of the credible evidence.
The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
November 1, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims