Letterese v State of New York

[*1] Letterese v State of New York 2004 NY Slip Op 51933(U) [21 Misc 3d 1124(A)] Decided on November 9, 2004 Ct Cl Mignano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 9, 2004
Ct Cl

Teresa Letterese, Claimant,

against

The State of New York, Defendant.



102909



APPEARANCES:For Claimant:

Belovin & Franzblau, LLP

By: David A. Karlin, Esq.

For Defendant:

Hon. Eliot Spitzer

Attorney General of the State of New York

By: J. Gardner Ryan, Assistant Attorney General

Stephen J. Mignano, J.

This claim for personal injuries alleges that the State was negligent in failing to properly

supervise and train claimant in the use of a ladder while she was an inmate at Beacon Correctional Facility (hereinafter Beacon). The trial was bifurcated and this decision deals only with the issue of liability.

Claimant testified that she was incarcerated at Beacon in 1999. She stated that she was part of an inmate work crew that was assigned to painting jobs outside of the correctional facility. She stated that prior to the accident on October 5, 1999, which is the subject of this claim, her work crew painted a church and a firehouse. She stated that her painting duties at both those buildings did not require her to use a ladder because she painted baseboards, stairwells and trim.

Claimant stated that the instant accident occurred on Tuesday, October 5, 1999 at the Department of Transportation (hereinafter DOT) garage in Poughkeepsie. She stated that the work crew started painting the garage the previous Thursday and she also worked there on Friday and Monday. She said that on the previous Friday and Monday when she painted, she stood on a platform which held traffic signs. On Monday afternoon she finished painting the wall where the platform was located and had just enough time to set up her materials on the other side of the garage. Ms. Letterese stated that Correction Officer (C.O.) Rodriguez was the regular C.O. in charge of the work crew and was present at the DOT garage on Thursday, Friday and Monday. However, on Tuesday, C.O. Gonzalez was in charge of the work crew. On Tuesday morning, claimant went to set up the ladder where she left off on Monday afternoon. She placed the ladder in the corner. No other member of the work crew was with her to secure the ladder. She stated that she climbed the ladder while holding in her hand a paint roller and extension, which were [*2]about two feet long. The ceiling was about 20 feet high. Ms. Letterese went up the ladder to paint the corner of the wall by the ceiling. Her paint pan was on the ground and it was her intention to climb up and down the ladder each time her paint roller was dry. Claimant described the ladder as an "A" frame ladder about 10 to 12 feet high. She climbed to the very top of the ladder, reached out to paint the wall and the ladder started to rock so she started to climb down the ladder, the ladder fell over and she fell. She stated there was no sign on the top step of the ladder. She did not observe any writing on the top step or the next to the top step of the ladder.

Ms. Letterese testified that she never received any instruction or training regarding the proper use of the ladder or the use of the top step of the ladder.

On cross-examination, claimant testified that C.O. Rodriguez told her on Monday to work in that corner and on Tuesday morning C.O. Gonzalez told her that she knew what to do, so go do it. Claimant did not request assistance in setting up the ladder. She made sure the ladder was steady and all four feet were on the ground before she ascended it.

Claimant called as an expert witness Dr. William Marletta, a certified safety professional. Dr. Marletta testified that he has a PhD in Occupational Safety and Health from New York University. The witness testified to his educational background and professional experience. He stated that he had been qualified as an expert witness 50 to 60 times by New York State Courts. Following his testimony regarding his extensive background, and without objection from the defendant, the Court accepted Dr. Marletta as an expert in the field of occupational and workplace safety.

Dr. Marletta reviewed claimant's Exhibit 1 and identified it as a photograph of a 10 foot standard "A" frame ladder. The space between the rungs of a ladder is 12 inches. He stated that the top of an "A" frame ladder is called the top cap.

Dr. Marletta opined that claimant should have been instructed or trained in the proper use of a ladder. He stated that OSHA (Occupational Safety and Health Administration) § 1926.1060 requires that employees be trained in the use of and hazards related to ladders. He stated that claimant should have been advised of fall hazards related to the use of a ladder. Dr. Marletta stated that he spoke to claimant and reviewed all the documents related to her accident. He stated that the failure to so train claimant regarding the use of a ladder was a deviation from good and accepted safe practice. Dr. Marletta also stated that the failure to have the ladder held or tied down was a departure from good and accepted safe practice in the industry. The witness stated that the top cap and the step just below the top are not safe to use. The second step below the top cap is the highest rung of a ladder that should be used. He opined that the safest way to paint the corner of the wall where claimant was attempting to paint was by use of either a scaffold or an extension ladder.

On cross-examination, the witness reviewed Exhibit E, a photograph of the ladder and the wall claimant was attempting to paint, and stated that the area on the wall where the white patch of paint is located is safely accessible from the "A" frame ladder by a person of claimant's height (5 foot, 4 inches).

The defendant called C.O. Albert Dodd as a witness. C.O. Dodd was the fire and safety officer at Beacon on the date of this accident. He stated that on the day following the accident, he went to the DOT garage and conducted an investigation of the incident. He took photographs of the ladder and the corner of the garage where claimant was working when she fell (Exhibits [*3]

C - G). Exhibit B is a copy of the accident report he prepared following his investigation. As a result of his investigation, C.O. Dodd determined that there were no witnesses to the accident. He does not recall seeing any area above the paint patch (see Exhibit E and F) which appears to be painted. The witness examined the ladder and determined it was a commercial-grade ladder in good condition without any apparent defects.

William Bain, the DOT resident engineer in Poughkeepsie in October 1999, stated that DOT provided the inmate work crew with all the equipment and materials needed to paint the DOT garage. The Department of Corrections did not bring any equipment or materials to the job site.

Corrections Lieutenant David Michael testified that in October 1999 he was employed at Beacon and was the officer in charge of assigning inmate work crews to jobs outside the correctional facility. He testified that there is no particular training that an inmate had to go through before being assigned to a work crew. He said that if an officer had seen claimant on a ladder without a person holding the ladder, the officer should have intervened.

It is well settled that when the State, through it correctional authorities, directs an inmate to participate in a work program during incarceration, it owes the inmate a duty to provide a reasonably safe workplace and reasonably safe equipment with which to work (Martinez v State of New York, 225 AD2d 877; Kandrach v State of New York, 188 AD2d 910). Although inmates who are injured while working in a prison work program are not entitled to the full protection afforded other workers by the Labor Law, they are entitled to a reasonably safe workplace (Kandrach v State of New York, supra). The State is not an insurer of an inmate's safety and the mere happening of an accident does not require the imposition of liability (Condon v State of New York, 193 AD2d 874).

An inmate is responsible for the failure to use ordinary care (see Carter v State of New York, 194 AD2d 967) and his or her prior experience and training is a factor to be considered in determining the reasonableness of both the State's actions and the actions of the particular inmate (Martinez v State of New York, 225 AD2d 877, supra). Further, "[t]here is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense" (Felle v W.W. Grainger, Inc., 302 AD2d 971, 972; see Liriano v Hobart Corp., 92 NY2d 232, 241-242; Carbone v Alagna, 239 AD2d 454, 456). "The open and obvious nature of [the] risk negates any duty to warn on the part of the [defendant]" (Lamb v Kysor Indus. Corp., 305 AD2d 1083, 1085; see Felle v W.W. Grainger, Inc., supra at 972; Lauber v Sears, Roebuck & Co., 273 AD2d 922; Scardefield v Telsmith, Inc., 267 AD2d 560, lv denied 94 NY2d 761; Banks v Makita, U.S.A., 226 AD2d 659, 660, lv denied 89 NY2d 805).

The State does not have a duty to provide uninterrupted supervision of its inmates, including those in its work programs (Colon v State of New York, 209 AD2 842). In this case, the Court finds that claimant has failed to establish by a preponderance of the credible evidence that her actions in climbing to the top cap of the ladder were condoned by the officer in charge of the work crew or that adequate supervision had not been provided.

I now turn to the issue of the training provided to claimant. The evidence adduced at trial established that claimant was not trained by the defendant regarding how to properly use a ladder. Claimant's expert, Dr. Marletta, testified that the failure to so train claimant was a [*4]violation of OSHA regulation § 1926.1060. He stated that the OSHA regulation requires that employees be trained in the use of ladders and be advised of the hazards of falling. However, an inmate worker is not considered an employee, thus the State cannot be said to have violated this OSHA regulation. Further, as stated above, there is no duty to warn of an open and obvious danger of which the product user is aware or should be aware as a result of ordinary observation or as a matter of common sense (Lamb v Kysor Indus. Corp., 305 AD2d 1083, supra; Felle v W.W. Grainger, Inc., 302 AD2d 971, supra; Liriano v Hobart Corp., 92 NY2d 232, supra).

Claimant testified that prior to her incarceration, she had used a ladder to get an item from a high shelf or to change a light bulb but she had never painted while on a ladder. As matter of common sense, the Court concludes that claimant should have appreciated the danger of standing on the top cap of the ladder. When one stands on a rung of a ladder, a person can lean into the ladder or grab the ladder if he/she loses his/her balance. When one stands on the top cap of a ladder, it is very obvious that one does not have the ability to stabilize oneself should he/she lose his/her balance. There is nothing to "lean into" or grab onto when standing on the top cap. The open and obvious nature of the risk negates any duty to warn on the part of the defendant (Lamb v Kysor Indus. Corp., 305 AD2d 1083, supra; Felle v W.W. Grainger, Inc., 302 AD2d 971, supra; Lauber v Sears, Roebuck & Co., 273 AD2d 922, supra).

Dr. Marletta also asserted that defendant failed to provide claimant with a safe workplace in that Industrial Code Rule § 23-1.21 (e) (3) (hereinafter 12 NYCRR § 23-1.21 [e] [3]) was not complied with. This rule provides:

"Standing stepladders shall be used only on firm, level footings. When work shall be performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means".

Here, the evidence was uncontroverted that the ladder from which claimant fell was neither steadied by a person nor secured by mechanical means.

Upon review of 12 NYCRR Part 23, the Court concludes that this provision is not applicable to the current situation as 12 NYCRR § 23-1.3 provides that the rule applies to employees engaged in construction, demolition and excavation operations and their employers "obligated by the Labor Law to provide such persons with safe working conditions and safe places to work". As already stated, inmate workers are not employees, therefore, are not covered by the Labor Law.

Assuming arguendo, 12 NYCRR § 23-1.21 (e) (3) were applicable to claimant, I find it would not apply to the situation at bar. Dr. Marletta stated that while the ladder claimant was using was a 10-foot ladder, when it is open, as shown in Exhibits 1 and C, it is really only about 9 feet 6 inches high. 12 NYCRR § 23-1.21 (e) (3) provides that the ladder must be steadied or secured when work is being performed from a step of the ladder 10 feet or more above the footing. Assuming the top cap is a step, claimant was performing work from a step of the ladder that was 9 feet 6 inches above the footing, not 10 feet above the footing. Therefore, the provision is not applicable.

Based upon the foregoing, the Court concludes that claimant failed to meet her evidentiary burden to establish that the State failed to (1) properly supervise or train her and (2) [*5]provide her with a safe workplace. There is no basis for finding that the State was negligent. The Court finds the sole proximate cause of the accident was claimant's own negligence. The claim is hereby dismissed. All motions made at trial, upon which decision was reserved, are now denied. The Chief Clerk is directed to enter judgment accordingly.