New York State Court of Claims

New York State Court of Claims

ORMONDS v. THE STATE OF NEW YORK, #2000-014-113, Claim No. 85809


Claim seeking to predicate liability for an assault by a patient at a non secure State psychiatric facility, on the basis of inadequate security, is dismissed after trial. The determination of the level of privileges and the degree of supervision for a psychiatric patient is a matter of medical judgment, a breach of which sounds in medical malpractice, for which there can be no liability even if the judgment was erroneous, without a finding that the level of supervision was established without appropriate medical judgment. Nor does the record support the conclusion that security at the facility was inadequate security for a non secure psychiatric facility.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Moskowitz, Passman & EdelmanBy: Jeffrey M. Motelson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Diane G. Temkin, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 25, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This claim concerns an assault which occurred at Creedmoor Psychiatric Center, a non secure psychiatric facility operated by the State of New York. The facts of the assault are not in dispute. On October 22, 1991, at approximately 7:00 p.m., Cecilia Ormonds, a former patient at the facility, entered the grounds in order to speak at an Alcoholics Anonymous meeting that was being held at Building 62, located on the premises. The claimant testified that she entered the facility through an unmanned gate and began to walk on a road that led to Building 62, whereupon she saw a large man who she did not recognize shake, beat, and kick another smaller man. From the other side of the road claimant called out to the aggressor, "Hey what are you doing?" He retorted, "Do you want the same thing that he is getting?"

Claimant testified that she did not reply, and resumed walking to Building 62 where she intended to report the incident. According to the claimant the same man who had just threatened her then attacked her from behind and threw her to the ground where he kicked and beat her. She stated that she was eventually able to break loose from the attacker, at which point a facility safety van appeared on the scene with two uniformed men inside. She testified that she informed the safety officers of what had taken place and asked them to apprehend her attacker. According to her they ignored her. The claimant testified that she decided to proceed to Building 62 where she reported the assault to two employees of the independent agency sponsoring the program at which she was to speak, Professional Services Centers for the Handicapped. Creedmoor safety personnel and New York City Police Officers interviewed her later that night at Building 62.

The driver of the van, Safety Officer Bascomb, testified that at the time of the incident he was patrolling an assigned area of the Creedmoor Psychiatric Center in a van when the claimant approached him and reported that she had been assaulted by a man. She pointed at a man who was in the area and identified him as the attacker. He stated that in response to Ms. Ormond's complaint he questioned Benjamin Smith, a patient at the facility, and then returned to the safety building where he reported the incident to his superior, Sergeant Montanez. Sergeant Montanez testified that based on Officer Bascomb's report, Smith was arrested by the Creedmoor Safety Department and was then removed from the grounds by New York City Police Officers.

It is well settled that where the State provides medical and psychiatric care, it is engaged in a proprietary function and is thus held to the same duty of care as a private individual engaged in the same activity.
See, Schrempf v State of New York, 66 NY2d 289. The State, therefore, is liable for the negligence or malpractice of its employees, including its hospitals and other medical facilities. See, Becker v The City of New York, 2 NY2d 226.
The claimant does not proceed on a theory of medical malpractice, but seeks to hold the State liable on a theory of common law negligence. Generally, in order to establish a claim for common law negligence the claimant bears the burden of proving by a preponderance of the evidence that (1) the defendant owed the claimant a cognizable duty of care; (2) the defendant failed to exercise that duty; and (3) the claimant suffered injury as a proximate result of that failure
. See, Akins v Glens Falls City Schools, 53 NY2d 325. In addition, the injury suffered by the claimant must be reasonably foreseeable. See, Payne v City of New York, 277 NY 393.
The claimant argues that the State in its proprietary capacity as the landowner of the facility breached a duty of care owed to her when it failed to restrain, supervise and control Benjamin Smith, which was the proximate cause of her injuries. According to the claimant, the basis of the defendant's failure to exercise due care was inadequate supervision of Smith, and inadequate communication between the facility's indoor medical staff and the outdoor safety staff which constituted a failure to implement proper security procedures at Creedmoor Psychiatric Center. In addition, claimant asserts that the security at the facility was generally inadequate.

Benjamin Smith was a patient in the Community Preparation Unit [C.P.U.] at Creedmoor Psychiatric Center who, at the time of the incident, was assigned Level 3 privileges. Dr. Anand, his treating psychiatrist, testified that Smith had been assigned to the C.P.U. since December 1990. Dr. Malhotra, chief psychiatrist at Creedmoor Psychiatric Center, explained that when patients are first admitted, they are assigned to a locked unit with no privileges. When a patient's condition improves, more privileges are granted: Level 1-A permits a patient to go downstairs accompanied by a staff member; Level 2 allows a patient who is accompanied by a staff member to go on and off the grounds for program activities; and Level 3 indicates that a patient is clinically stable enough to come and go from the ward unsupervised.

Dr. Malhotra testified that Level 3 patients were free to walk the grounds when they were not otherwise scheduled for an activity, and were allowed to go off the grounds if given permission to do so by the staff. Dr. Malhotra further explained that the C.P.U., an open unit at the facility where there are no locked doors,[1]
houses only Level 3 patients, and that its primary purpose is to prepare them to be discharged into the community as independent individuals. These patients were free to interact with visitors to the facility. She noted that Creedmoor Psychiatric Center is not a locked facility and that visitors could come and go as they chose and that there is no means by which the facility prohibits a patient from talking to a visitor on the grounds.
Claimant relied on the testimony of Frank J. Kowaleski, a non-medical expert in the field of psychiatric institution security.[2]
Mr. Kowaleski is a nursing psychiatric supervisor at a private psychiatric institution located in Pennsylvania, where he oversees clinical as well as safety and quality assurance issues. He has been certified as an instructor in aggressive management training, and has written protocols and established policies concerning psychiatric patient intervention. He has taught doctors safe ways of engaging patients and has acted as intermediary between medical and security staff concerning psychiatric patients. In addition, Mr. Kowaleski was a State Conservation Officer for the State of Pennsylvania.
Mr. Kowaleski testified that given Smith's history of assaultive behavior[3]
while at the facility, he should have been placed in a more structured milieu, such as a more restrictive unit, thereby establishing a safer environment for the patient as well as the staff and visitors. He asserted that the failure of the medical staff to disseminate information concerning Smith's history of violence to the Creedmoor Safety Department, diminished its ability to control Smith, which resulted in a lack of supervision whereby Smith was free to roam about the hospital grounds in the proximity of visitors notwithstanding his history of violent behavior. Mr. Kowaleski opined that the failure to communicate information of Smith's violent tendencies was a substantial factor in the cause of the claimant's injuries.
On the evidence presented, assertions that Smith should have been in a more secure environment and supervised more closely do not constitute a basis for liability. The determination of the level of privileges and the degree of supervision for a psychiatric patient is a matter of medical judgment, a breach of which sounds in medical malpractice, for which there can be no liability even if the judgment was erroneous, without a finding that the level of supervision was established without appropriate medical judgment.
See, Topel v Long Island Jewish Medical Center, 55 NY2d 682; Amadon v State of New York, 182 AD2d 955. In order to establish the absence of reasoned medical judgment the claimant must offer expert medical testimony. The claimant has failed to put forth any such proof.
Similarly, Mr. Kowaleski's opinion that the medical staff should have informed the safety staff of Smith's prior behavior, is nothing more than an attempt to second guess a medical judgment concerning the supervision of a psychiatric patient, which implicates a professional standard of care. In the absence of expert medical testimony, it is unsupported.

The claimant's reliance on cases such as Greenfield v State of New York, 130 Misc 2d 161, and Joachim v State of New York, 180 Misc 963, is misplaced. In those cases, the negligence of the State concerned the failure to effectuate the degree of supervision which had been determined to be necessary.
The claimant also seeks to predicate liability on the basis that the Creedmoor Safety Department had prior knowledge that Smith had engaged in threatening and violent behavior while he was free on the grounds, but failed to take any action in response, either by reporting these events to the medical staff, or by more closely observing Smith while he was on the grounds.

The evidence in support of this assertion, the testimony of two employees of Professional Services Centers for the Handicapped, was insufficient to establish that the safety staff was aware of prior violent behavior by Smith on the grounds.[4]
Both of these witnesses testified that over a period of several months prior to the assault on the claimant, they had received reports of a group of men who had threatened visitors on the grounds, and that these reports had been communicated to the safety staff. Officer Bascomb testified that when he confronted Smith on the evening of the assault on the claimant, he did not recognize him or know if he was a patient at the facility. Sergeant Montanez testified that he did not have any prior knowledge that Smith had been involved in previous incidents on the grounds. In the face of this conflicting testimony, there is insufficient evidence to conclude that the safety staff was on notice that Smith had engaged in such activity.
Finally, it is the claimant's contention that the security at the facility was inadequate, and that such was the cause of the assault on her. From the testimony of Officer Bascomb and Sergeant Montanez it appears that on the evening in question, from 4:00 P.M. to midnight, six safety officers, including 1 supervisor, were on duty. Two officers were on patrol of the grounds, which includes approximately 20 buildings, one was assigned to the main gate, one was stationed in the main building, and one served as a dispatcher. The supervisor, Sergeant Montanez, stated that he also made rounds of the entire facility. He testified that there were six gates where people could enter the grounds.

Nothing in the testimony of the claimant's expert, Mr. Kowaleski, supports the conclusion that the foregoing was inadequate security for a non secure psychiatric facility.
See, e.g., Johnson v New York City Health and Hospitals Corporation, 246 AD2d 88, 94. Indeed, the only testimony he offered which, arguably, did not directly or indirectly implicate the issue of medical judgment (discussed, supra), was his statement that he would consider posting warnings to visitors that psychiatric patients were on the grounds. Thus, the claimant offered no evidence by way of acceptable expert testimony, or otherwise, to demonstrate that the safety force at the facility, or their actions, constituted a breach in security. Cf., Rattray v State of New York, 223 AD2d 356. Claimant points to no statute, rule, or regulation to the contrary.
To impose liability upon the State, on these facts, would render meaningless the distinction between secure and non secure State psychiatric facilities, a recognized distinction which is well established.
See, 14 NYCRR § 541.1(z); People v Ortega, 69 NY2d 763, 764-765.
In accordance with the foregoing, the defendant's motion to dismiss the claim for failure to make out a
prima facie case, upon which decision was reserved, is granted; the claim is dismissed.
All motions at trial not specifically ruled upon are denied.

All proposed findings of fact and conclusions of law inconsistent with the foregoing are rejected.


July 25, 2000
New York, New York

Judge of the Court of Claims

[1] She testified that the doors were locked at night, when the patients were required to return to the unit.
[2] The defendant's motion to strike Mr. Kowaleski's testimony, renewed in its post trial brief, is denied.
[3] It appears from a review of Smith's records at the facility (Claimant's Exhibit 5), there were as many as 8 instances of violent behavior, over a period of 19 months; the most recent was nearly 6 months before the incident underlying this claim. Based upon the testimony of Dr. Malhotra, Dr. Anand, and Safety Officers Bascomb and Montanez, it does not appear that any of these incidents were reported to the safety staff at the facility.
[4] The defendant's motion to preclude the testimony of these two witnesses, on the ground that they were not named during disclosure, is denied. Their names were included in the facility's safety log book for October 22, 1991, in connection with entries concerning statements made by them on that date. In any event, the defendant declined to take advantage of the opportunity for a continuance in order to call any State witnesses in connection with their testimony.