MOCHRIE v. THE STATE OF NEW YORK, #2002-019-030, Claim No. 99680 by 6RL903


									MOCHRIE v. THE STATE OF NEW YORK, #2002-019-030, Claim No. 99680


        Claimant failed to establish that State failed to provide adequate instruction, training
and/or safe equipment to inmate Claimant hurt while trimming trees. Claimant's descision to
climb tree was in violation of prior training and proper procedure and his own actions were sole
cause of fall. Claim dismissed.

                                       Case Information

UID:                                 2002-019-030
Claimant(s):                         DONALD MOCHRIE, JR.

Claimant short name:                 MOCHRIE

Footnote (claimant name) :

Defendant(s):                        THE STATE OF NEW YORK

Footnote (defendant name) :          The court has sua sponte amended the caption to reflect the
                                     State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                     99680

Motion number(s):

Cross-motion number(s):

Judge:                               FERRIS D. LEBOUS

Claimant’s attorney:                 ZWIEBEL, BRODY, GOLD & FAIRBANKS, LLP
                                     BY:     Jeffrey M. Brody, Esq., of counsel
Defendant’s attorney:                HON. ELIOT SPITZER, ATTORNEY GENERAL
                                     BY:     James E. Shoemaker, Assistant Attorney General,
                                     of counsel
Third-party defendant’s attorney:

Signature date:                      September 26, 2002

City:                                Binghamton


Official citation:

 The court has sua sponte amended the caption to reflect the State of New York as the only
proper defendant.
Appellate results:

See also (multicaptioned case)

         Claimant, Donald Mochrie, Jr., brings this Claim alleging he was injured as a result of the negligence of the
New York State Department of Correctional Services (hereinafter “DOCS”) while in their custody on October 30,
1998. This Claim was tried in the Binghamton District on September 17, 2002 and was bifurcated. Consequently,
this Decision addresses the issue of liability only.

         On October 30, 1998, Claimant was an inmate at the minimum security facility of Camp Pharsalia, located
in South Plymouth, New York. The unrefuted testimony establishes that Claimant was a model prisoner at Camp
Pharsalia and due to having prior logging and landscaping experience he was assigned to an outdoor work crew
upon arrival at Camp Pharsalia. These work crews were taken out of the facility to clear trees, shrubs, brush, and
grass, from cross-country trails and hiking paths at sites mostly on public lands. Claimant was designated an
“A-man”2 within his work crew, which made him responsible for the collection of tools both before and after the
work shifts. Under normal circumstances his crew was assigned to the supervision of Correction Officer Richard
Mahannah. On October 30, 1998, Claimant and his crew were taken to State land off Whaupaunaucau Road in
Chenango County to clear a cross-country ski trail of some branches, limbs, and other obstructions. This crew
consisted of approximately seven to eight inmates and they were divided into groups and working at different
locations along the trail. On that day the tools assigned to Claimant’s crew were two bow saws, two 10-foot pole
saws, and two whips or weed choppers.

          Claimant testified that the work assignment on October 30, 1998 was very similar to prior work
assignments that he had engaged in since arriving at Camp Pharsalia. Claimant testified that he had prior logging
experience from the ages of 12 to 18, working with various family members in felling trees, trimming trees and
shrubs, and was fully familiar with the profession and its tools through six plus years of experience. Claimant
testified that on the date of the accident his work crew was working along a portion of the Whaupaunaucau Road
trail and that in order to clear some of the tree limbs and to trim them flush to the tree trunk it was necessary for him
to climb one of the trees in order to get an overhanging limb that was approximately 18 to 20 feet off the ground.
Claimant testified that he had climbed numerous trees in the past, at least on 60 to 70 occasions, and had done so in
the presence of Correction Officer Mahannah in order to perform his trimming tasks. On this date, Correction
Officer Mahannah was not in the immediate vicinity of Claimant and his small work crew when Claimant climbed a
tree with a bow saw to be used for trimming and flushing the limb. Claimant scaled the tree, to cut off an
overhanging limb that was too large to be cut with a pole saw, and attempted to position himself securely in the tree.
Before he commenced cutting, Claimant hung the bow saw on another limb against the trunk of the tree. At that
time a gust of wind came along, shaking the tree sufficiently to cause Claimant to grab a hold of the tree trunk to
prevent him from falling. In doing so he grabbed the blade of the bow saw resulting in a laceration injury to fingers
on his left hand.

         Claimant testified at trial that he had been instructed by Correction Officer Mahannah to cut the limbs as
best he could. Moreover, he stated that although the educational tape he previously viewed while at Camp
Pharsalia in logging and landscaping indicated that they should not climb trees to trim branches and limbs, that rule
was honored more frequently in the breach. It was Claimant’s position that Correction Officer Mahannah had seen
Claimant climb trees on 60 to 70 occasions to cut limbs and had even encouraged Claimant to climb trees to perform
his trimming tasks. Claimant contends that he and his crew were encouraged to work quickly and efficiently and
upon early completion of assigned daily tasks they would be rewarded with extra privileges such as going out for
pizza, relaxing, or swimming at the various State locations where their work was being performed. Claimant
implied that it was this effort to expedite the tree trimming process which prompted Correction Officer Mahannah to
often look the other way when inmates climbed trees to trim branches and limbs.

    Unless otherwise indicated, all quotations are from the Court’s trial notes.
          At trial the State called Correction Officer Richard T. Mahannah, who is a twenty-six year veteran of the
Department of Correctional Services and has been assigned to Camp Pharsalia on and off since 1977. The witness
testified that while he instructed inmates to cut limbs and clear trails as “best they can”, he did not authorize nor
did he have any knowledge of Claimant and/or any other inmates climbing trees to bring down limbs. To the
contrary, Correction Officer Mahannah stated that inmates are not allowed to climb trees to clear trails, but instead
are instructed to cut the low level branches with the bow saw and cut higher branches with the pole saw which
extends approximately 12 feet into the air. He further testified that he specifically instructed the Claimant and the
other inmates never to climb trees; however, he cannot remember if he gave that instruction on the date of this
accident. Moreover, he counters Claimant’s testimony by stating he never saw inmates or the Claimant climb trees
in his presence to perform their tasks. To the contrary, the witness points to the instructional video viewed by
Claimant, as well as Claimant’s own signed acknowledgment (State’s Ex. B), to establish Claimant was in fact
instructed on the proper methods and procedures for performing his tasks while part of this work crew. Aside from
the testimony of the Claimant and the testimony of Correction Officer Mahannah, no other testimonial evidence was
received by the Court.

          Claimant relies upon common law negligence, as well as violations of Labor Law 27-a (1), (2), (3 [a]), (c),
(4 [a]) and 200 (1). (Claimant’s Pre-Trial Memorandum).

          It is well settled "[t]hat when the State, through its correctional authorities, directs a prison inmate to
participate in a work program during incarceration, it owes the inmate a duty to provide reasonably safe machinery
and equipment with which to work and adequate warnings and instructions for the safe operation of such machinery
and equipment [citations omitted]". (Kandrach v State of New York, 188 AD2d 910, 913; Martinez v State of New
York, 225 AD2d 877). 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. (Condon v State of New York, 193 AD2d 874). Also, where an
inmate fails to use ordinary care and pursues a dangerous course of conduct, the inmate will be assessed some if not
all the responsibility for his own negligence. (Hicks v State of New York, 124 AD2d 949, 949-950). Finally, Labor
Law provisions relating to worker safety do not govern relationships and duties between the State and inmate
workers, but they may provide a standard of care applicable to the State in a common law action for negligence.
(Fitzgerald v State of New York, 28 Misc 2d 283, 285; D’Argenio v Village of Homer, 202 AD2d 883).

         Here, the Court finds most credible Correction Officer Mahannah's testimony that Claimant was provided
adequate and appropriate instructions with respect to training and use of the equipment and that the equipment was
reasonably safe for its intended use. Additionally, Claimant, himself, acknowledged that he received instructions
on the proper technique for trimming trees both at the facility and prior to his incarceration. In short, there is no
evidence that Claimant received any inadequate training or equipment or that he was negligently trained with respect
thereto. Rather, the State provided Claimant with reasonably safe equipment and training to perform the assigned
job. In sum, the Court finds that Claimant climbed the trees of his own accord outside the presence of Correction
Officer Mahannah and in violation of prior training and proper procedure. Claimant's own actions were the sole
cause of his near fall and resulting injuries, if any.

         Based on the foregoing, Claim No. 99680 is DISMISSED.

        Any and all motions on which the Court may have previously reserved or which were not previously
determined, are hereby denied.


                                                                                              September 26, 2002
                                                                                           Binghamton, New York

                                                                                      HON. FERRIS D. LEBOUS
                                                                                     Judge of the Court of Claims

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