Kevin Zernel v. State of Illinois

OPINION

KAPLAN, J. This claim is before the Court upon a recommendation from Commissioner LaGuina Clay-Clark following an evidentiary hearing.

Claimant is seeking compensation for injuries sustained to his right thumb after he cut the tip of it off with a meat slicer while incarcerated at Dixon Correctional center due to the State’s alleged harassment and negligence in providing a safe work environment. On May 21, 2004, Claimant filed a complaint with the Court of Claims seeking $15,000. The claim, sounding in tort, was filed pursuant to Section 8(d) of the Court of Claims Act. 705 ILCS 505/8(d)(1996).

FACTS

An evidentiary trial was conducted before the designated commissioner on November 19, 2004. Claimant appeared pro se via video teleconferencing and testified on his own behalf. Testifying on behalf of the State were Daniel Segretto. A Correctional Officer at Dixon Correctional Center (“DCC”) and Nursing Supervisor, Vianne Carroll - both appeared via video teleconferencing. Entered into evidence were Claimant’s exhibits, including two affidavits, and the State’s departmental report which included Claimant’s medical records, among other documents.

Claimant, an inmate at DCC, was assigned work in the kitchen as a butcher. One of his duties was to cut large quantities of meat. Claimant’s job entailed the use of an electrical meat slicer. On August 14, 2003, while using the meat slicer to cut ham, Claimant cut off the very tip of his right thumb.

Claimant testified that the accident was due to three factors: 1) harassment from Officer Segretto; 2) a dull blade on the meat slicer; and 3) an unsafe and hostile work environment because of the harassment and the dull blade.

Concerning the harassment, Claimant testified that soon after his assignment to the third shift in the kitchen in April of 2003, Segretto began to harass and discriminate against him over the course of five months. Claimant described the harassment and discrimination as “referring to [me as] very foul names, like walking up and threatening to shake a person down, discriminating against me as an inmate, making statements as ‘I hate all ‘M[*216]Fing’ inmates and I hate you especially, and I’ll see to it that you go to segregation.’” Claimant testified that he wrote “approximately thirty” complaints and slid them under the door of an IDOC officer, Eykamp; but did not keep copies for himself. Included within the State’s departmental report is a statement from Eykamp in response to Claimant’s allegations stating that “On 5/14/03, [she] wrote an incident report regarding the alleged harassment of [Claimant] and forwarded all complaints to Internal Affairs for their handling;” and that “[Claimant] did not make 30 complaints to [her].”

Claimant entered two affidavits from inmates into evidence concerning the harassment. Both affiants state that they personally witnessed the alleged harassment of Claimant from Segretto. Both affidavits also stated knowledge of the dull blade and the condition of meat slicer.

Concerning the dull blade, Claimant testified that the blade on the meat slicer was very dull and therefore dangerous. Claimant testified that on the day of the incident, he told an IDOC officer that the blade was dull but was ordered to cut the meat anyway. He further testified that “there was three work orders turned in…personally by me” concerning the dull blade.

According to Claimant, afterwards a “sharpening stone” was brought in to sharpen the blade. However, Claimant stated, “You cannot use that stone on hardened steel disk…and expect to have a sharp edge.” Included within the department report, in response to Claimant’s allegations regarding the blade on the meat slicer, Eykamp stated in pertinent parts, that, [She reviewed daily…the work order log book and has found no documentation of any deficiencies with the meat slicer being reported as faulty, deficient or dangerous for safe operation; that they were having problems with the manual feed; however, the slicing was always done using the automatic control;…[an IDOC officer] did advise [her] that the meat slicer was in need of sharpening.

[She} does not recall [Claimant} making a request to have the meat slicer repaired or replaced, nor did he fill out a work order requesting any type of repair.

[An IDOC officer], not [Claimant] requested the sharpening stone be replaced as the blade was dull and the stone wore out. [Claimant] did not request the slicer be sent out for sharpening. Past practice has always been to use the sharpening stone.

On the day of the accident, August 14, 2003, Claimant testified that he began to slice ham at approximately 9:00 p.m.; and Segretto came into the kitchen a few times “making derogatory remarks, being very insulting and [*217] rude,” demanding 14 pans of ham. Claimant testified that even though Segretto distracted him he shut the machine off, “because the machine was very dangerous.” Claimant stated that “about five minutes after the last time Segretto entered the kitchen, the door opened once again, however it was not Segretto, but was Supervisor Peterson. It was at this moment that Claimant sliced his thumb. Claimant testified that Segretto was a “contributory factor to the incident.” He continued, “I am not saying that Segretto pushed me or actually stood there and made sure that I was hurt, no, but him continuing - his continuous harassment, coming in there, calling me names, it was happening everyday of the week…” During the course of the hearing, Claimant described the incident several different times. When asked by the Court to, “Describe what happened when Mr. Peterson came in, because you indicated that the prior times Mr. Segretto came in, you always turned off the meat slicer and then you would look up? So what was difference when Mr. Peterson came in that you did not turn off the meat slicer?” Claimant responded as follows, in pertinent part, The door had started to open, and I glanced up thinking it was Segretto, and when I glanced up, the machine jerked forward and took my hand into the cutting disk.

During direct, he testified in pertinent part:

About five minutes after that, the door opened once again and this time it was Supervisor Gerald Peterson. I glanced up, and this machine doesn’t work on manual.

It only works on automatic, and it works on high speed automatic, so with the guard in place on top of the butt of ham, my hand was in this position, and when the machine backed up, it’s a pause kind of stop for a moment, I glanced up and it jerked forward and took my right thumb into the cutting disk, and at that time I jumped back.

During cross-examination, Claimant stated in pertinent part, There was enough for about four slices a piece off, and that was another eight servings, and when you get low, you particularly have to pay attention, and when it was cutting, like I said, the door opened, and I glanced up and the injury occurred.

When questioned further regarding “glancing up,” Claimant replied in pertinent part:

[*218] I heard the door open, I didn’t move my head. I glanced up with my left eye. My right eye followed, and at that time it jerked forward and it took my right hand into the blade, that fast, because it has that much power.

Still upon further cross-examination, when asked, “When you glanced up to look at the door, could you still see your right hand? Claimant responded, in pertinent part, Barely, out of the corner of my right eye, because I’m standing on the work table, the machine is here, and I glance like that, just out of side vision, just barely I could see my right hand.

Segretto, an eight year correctional officer with the Illinois Department of Corrections testified that he was in charge of food deliveries at the time of Claimant’s injury and stated that he is familiar with Claimant. Upon direct examination, when asked if he was aware of Claimant’s allegations, he responded, “At the time he cut himself I was not in the building. I was making deliveries.” Segretto testified that he had been in the room twice before the incident in order to find out how long it would take Claimant to prepare the 14 pans of ham and when he came back a third time, Claimant was no long there. Segretto denies any form of harassment, discrimination or threats against Claimant. Segretto also testified that he never told Claimant that he hated him, but continued that during a separate incident he and Claimant had some words over a particular chair. Segretto stated he wanted to sit in the chair because the chair’s back was up against the wall and he felt secure in that position, but Claimant told him “to get up and I told him I don’t have to get up.” Upon cross-examination, when asked about the incident, Segretto responded as follows, A. I was sitting where I normally sit, and you told me to get up.

Q. Where you normally sit, was there a typewriter in that particular desk area that day?

A. Yes, that day there was.

Q. Was there food preparation reports laying there?

A. I do not know.

[*219] Q. Was there any other materials laying there such as papers, pens or any other documents around this typewriter at the time you come in to sit down there?

A. Probably.

Q. And was the claimant sitting in the chair at the time you walked in?

A. You might have been.

Q. Did you ask the claimant to get out of the chair or did you say look, motherfucker, get out of my chair?

A. I did not curse.

Q. But you do admit that there was a typewriter, and claimant was using that work area when you came in?

A. And I moved it for you.

Q. And you moved it for claimant, because what was the importance of that seat as opposed to all the other chairs in that area?

A. I felt more secure in that seat.

After slicing his thumb, Claimant was taken to the medical unit where he received treatment. Carroll, the nursing supervisor at DCC, testified that she reviewed Claimant’s injury report and medical records which were contained within the State’s departmental reports compiled by DCC and offered as prima facie evidence of the facts contained therein pursuant to Section 790.140 of the Rules of the Court of Claims (74 Ill. Adm. Code 790.140). Menard County Health Department v. State of Illinois (1989), 41 Ill.

Ct. Cl.200,201. Upon direct examination Carroll stated, “First of all, the injury occurred at the GP dietary kitchen, and it was stated that he had - this is what the inmate says at the time he comes over, that he sliced his thumb with a knife, and they asked him why did the injury occur, and the inmate replied he wasn’t paying attention.” Pertinent parts of Carroll’s cross-examination proceeded as follows:

Q. Now can you please - this is an inmate injury report, am I correct? Why does this one say sliced the end of the thumb while cutting ham but it doesn’t mention a knife or how it was done, but yet this one here says that it was sliced with a knife?

[*220] A. We are stating exactly what you, the inmate says when you come over to the healthcare unit. That’s not even written in our own words. That is per inmate.

Q. Okay. So the inmate would have said that it was cut with a knife. How many times did you say the inmate was seen by the nurses - physicians assistant?

A. I believe you had five or six visits.

Q. So then it would be safe to assume that the inmate fully complied with medical orders?

A. Yes.

Regarding Claimant’s injury, Carroll further testified that Claimant’s injury was Classified as an avulsion which means he basically sliced the very end, the very tip of his thumb completely off.

There was nothing there that anyone could - they couldn’t put steri strips on it and they couldn’t suture it.

Basically what happens, like I said, the tip of that finger is just simply sliced off. The main important area for the healthcare staff was to make sure that the area was cleansed really good and that dressings were applied.

The area was cleansed thoroughly with hydrogen peroxide and with Betadine…the thumb area was completely wrapped in dressings, and then he followed up quite frequently over at the healthcare unit until we could see the healing process was taking place, and then he was discharged from any further care.

Carroll stated that about half of Claimant’ thumbnail was sliced off; however, she testified that based upon the medical records it did not appear as if any of his bone was cut. Carroll was asked by Respondent to examine Claimant’s nail and testified, “I see a - actually it looks like even part - most of his nail has grown back. I’m not seeing any type of - there’s just no scarring at all. There is a little discoloration right at the tip of the thumb. It’s probably - the thumbnail is probably the most affected, and it’s just the corner of it, the inside - corner of the thumbnail.” When asked what happens to the tip that was cut off, Carroll replied that a “granulation process occurs” and new skin forms to take the place of the cut-off skin. She continued, “He’s got a natural looking thumb. There’s no malfunction there at all.”

[*221] Claimant filed a Committed Person’s Grievance dated September 5, 2003 alleging harassment, discrimination, an unsafe work environment and poorly maintained equipment. When describing his accident, Claimant wrote, “[An officer] entered the meat room with another inmate, Grievant glanced up, thinking it was Segretto, at which time the machine was set on high speed, the only feature that worked, Grievant’s right thumb was pulled into the cutting disk.” Included within the departmental report is the Grievance Officer’s Report dated October 14, 2003 that reads in pertinent part, “This Grievance Officer notes allegations of staff misconduct has not been substantiated…Segretto denies these allegations…Eykamp indicates [Claimant] did speak to her about Segretto…and she referred the issue to Internal Affairs…There is no way to substantiate [Claimant’s] allegations.”

Claimant’s grievance was denied and he then appealed to the Administrative Review Board, which on January 14, 2004 also denied the grievance.

Claimant argues that his injury was a direct result of discrimination, harassment and an unsafe work environment and faulty meat slicer. Claimant asserts that even though Segretto was not in the room, Segretto’s alleged constant harassment created the environment that caused Claimant’s accident.

Respondent denies any form of discrimination and harassment. Respondent argues if the meat slicer was unsafe, Claimant was well aware of the hazard since he claims to have reported it to IDOC. Therefore, if negligence is found, Claimant should be held contributorily negligent for failing to exercise due care for his own safety.

POST TRIAL

Following the hearing, Respondent was ordered to produce an incident report dated May 14, 2004; a departmental memo dated on or about August 25, 2004 and any documents from Claimant concerning harassment of Segretto and the condition of the meat slicer and addressed to Eykamp during the dates in questions. Respondent was also ordered to produce any and all documents pertinent to this claim. Claimant was granted leave to file a post trial brief in response to the aforementioned documents; and Respondent granted leave to file respond. Respondent responded to the order, but was unable to find any of the specific documents. Claimant did file a post trial brief reiterating the allegations within his complaint and his testimony during the hearing. Respondent filed no response.

LEGAL ANALYSIS

In order to prevail against the State for negligence, Claimant must prove by a preponderance of the evidence that the State had a duty to protect him from harm that the State negligently breached that duty and that negligence was the proximate cause of Claimant’s injuries. Reed v. State (1999), 52 Ill. Ct. Cl. 316, 317. An inmate of the penal institution is not ordinarily free to refuse to perform tasks assigned to him even if he considers [*222] the working conditions unsafe. An inmate is not with liberty of choice available to those in private industry and must therefore work under conditions that are assigned to him. Reed v. State at 319; Rickets v. State (1995), 48 Ill. Ct. Cl. 142, 145. The Court’s case law has developed whereby it finds liability where aggravating circumstances occur. Accordingly, absent aggravating circumstances, awards are not made where the hazardous condition was, or should have been known, to the Claimant. Blankenship v.

State (1995), 49 Ill. Ct. Cl. 265. In another case summarizing the extent of the law where a hazard existed, the Court noted that recovery could not be had if the danger was, or should have been apparent to the Claimant. The court pointed to the fact of concealment or lack of knowledge as being an important element of proof. Rodriguez v. State (1994), 46 Ill. Ct. Cl. 290.

In the case at the bar, we are confronted with three issues while deciding this case. The first issue is whether or not Officer Segretto harassed Claimant and if so, did the harassment contribute to the accident. The second issue is whether or not the condition of the meat slicer was unsafe and therefore contributed to his injuries; and the third and most controlling issue is whether or not the alleged harassment and the meat slicer together were the direct cause of Claimant’s injury.

Concerning the harassment issue, we find that even with the two affidavits from the inmates, there is simply not enough tangible evidence to prove harassment of Claimant from Segretto. Even though the record indicates that Claimant complained of Segretto to IDOC officers, there was never a finding of harassment to substantiate his allegations. Segretto admitted that he and Claimant had a prior disagreement over a chair, but also testified that he never harassed Claimant. Without further evidence, we cannot find for Claimant on this issue. Even if we were to find that Claimant had proven his allegations of harassment, we cannot connect the verbal harassment of Segretto with Claimant’s own specific act of slicing his thumb. At the time of Claimant’s accident, Segretto was not in the same room, indeed, not even in the same building with Claimant as he cut his thumb.

Next, we look at the meat slicer issue. Claimant contends that he injured his thumb because the blade was dull and that the machine only operated on the “automatic” setting. First, we must note that neither the meat slicer nor the blade in questions were entered into evidence; and that there was no expert testimony declaring when a blade is considered dull and what degree of dullness is considered unsafe for operation of that particular model meat slicer. However, the record indicates that it is undisputed that a sharpening stone was used to sharpen the blade of the meat slicer before the accident occurred. Claimant seems to make the argument that the sharpening stone was not adequate and if the blade had been properly sharpened when his thumb was cut, somehow his injury would not have been as serious.

Notwithstanding the condition of the blade, the questions that arises now is whether it made a difference if the blade was dull or sharp when Claimant’s thumb got caught by the blade. The answer is “no.” It is of no consequence whether the blade was dull or sharp when Claimant got injured. For it remains [*223] a fact that the blade is unable to cut a thumb unless the thumb comes into contact with the blade first. We find that it was Claimant’s own action of glancing-up while in the process of cutting the ham that caused his thumb to come into contact with the blade. Additionally, there is no medical testimony to indicate that Claimant’s cut was worsened by a “dull” blade as opposed to a sharp blade. Therefore, we find that the alleged “dullness” of the blade was not a nexus that caused Claimant to slice his thumb. As to the “automatic” setting of the machine, Claimant testified that he worked in the kitchen for five months and was in fact in the process of training another inmate on how to operate the slicer. Claimant stated that he was well aware of the machine’s operations and testified that the slicer operated powerfully on the automatic setting, and had to be shut off whenever he was interrupted while running the machine. Unfortunately, Claimant became distracted and “glanced-up” without turning off the slicer.

Since we find no harassment and because we find that the condition of the meat slicer did not cause the accident, we can only find the third issue moot - that is, Claimant’s injury was not caused by a hostile and unsafe work environment.

CONCLUSION

Based on his own testimony, the Court finds that Claimant was the sole cause of his accident. Claimant was in fact injured by his own negligence.

Claimant plainly and clearly repeated numerous times that he “glanced-up” as the kitchen door opened for the third time. He stated the same thing within his grievance, as well as within his complaint filed in this action. Claimant self-assessed the blade as dull and was fully aware that the machine operated powerfully while on automatic. Where it is true that Claimant had no choice in his work assignment, other choices were available to him. He knew that he was operating an inherently dangerous machine and felt it more dangerous primarily because of the “dull” blade. He understood that he should turn the machine off whenever he had a distraction - and in fact had done just that two times directly before the accident. Despite that, Claimant “glanced-up” and regrettably failed to turn off the machine on this particular incident.

Claimant failed to use the proper degree of care for his own safety while operating a machine that he assessed and believed to be dangerous. Scott v.

State (1998) 50 Ill. Ct. Cl., 116, 129.

Based on the foregoing, we find that on the day in question, when Claimant sliced his thumb, neither the meat slicer nor the alleged harassment were the causes of Claimant’s accident. We have determined that Claimant is not entitled to relief.

IT IS HEREBY ORDERED that this claim be denied.