68 A.D.2d 941 | N.Y. App. Div. | 1979
Appeal from a judgment in favor of claimant, entered September 6, 1977, upon a decision of the Court of Claims. On February 10, 1975, claimant, then an 18-year-old student at the State University of New York at Albany, severed part of his right index finger while operating a table saw in the university’s scenery shop. He thereafter filed a claim to recover damages against the State, alleging that his injury resulted from the State’s negligence in failing to provide a safety guard over the blade of the saw. Claimant was using a Rockwell table saw, which had a circular blade protruding one inch from the top of the table. In connection with a theatrical production which he volunteered to work for, he had been directed to build a butter churn. He was instructed in the cutting of a compound angle to make slats of wood for the butter churn, and his supervisor cut a "template”, a device used to guide a piece of wood at an angle through the blade for an angular cut. The wood to be cut and the template are advanced simultaneously through the blade in order to cut the wood at the desired angle. Claimant’s left hand was holding a piece of wood against the template and his right hand was holding a "push stick”, a safety device used to push both pieces through the saw blade, and he testified that as he was pushing both pieces through the blade, he "felt a pull and immediately after that my finger was in the blade”. There were no witnesses to the accident. At the time of the accident, and for some years prior thereto, the bevel-shaped, clear plastic safety guard supplied by the manufacturer of the saw to cover the rotating blade was broken off and never replaced. The Court of Claims concluded that the State’s failure to use the safety guard constituted negligence on the part of the State and awarded claimant $19,350. Upon this appeal, the State first contends that there was no negligence on its part which proximately caused claimant’s injuries. It argues that its failure to use the safety guard resulted from a professional judgment by claimant’s supervisors that the safety guard was actually a hazard, which experts for the State testified to, and citing Weiss v Fote (7 NY2d 579), it reasons that it is not liable for an error of professional judgment. We disagree. Claimant’s expert testified that the safest way to