The trial of this claim was bifurcated by order of this court and this decision
addresses the issues of liability only. Claimant alleges injury after an
assault by another inmate while in a recreational module in the annex gym of the
medium security Groveland Correctional Facility (Groveland) on October 23, 1996.
He alleges in his claim that the Defendant was negligent in failing to properly
supervise inmates at Groveland and also that the Defendant negligently failed to
segregate or otherwise isolate the assaulting inmate from the general prison
population, based upon the Defendant's actual or constructive notice of his
violent propensities and past history.
Claimant was placed in the care, custody and control of the New York State
Department of Correctional Services (DOCS) and for the purposes of this decision
was assigned to Groveland. On October 23, 1996, Claimant went to the Groveland
Annex gym (gym) to participate in an authorized morning exercise module (a
period of approximately two and a half hours). He was engaged in a "two on two"
touch football game with three other inmates, to wit, John W. Schiemann, Richard
J. Liberio and Rocco V. Lazazzaro. He knew Schiemann, Lazazzaro and Liberio as
fellow inmates at Groveland. The game started at 8:30 a.m. and continued until
10:35 a.m. when Schiemann suddenly and without warning assaulted Claimant while
the football game was continuing. The four players did not use a football since
all footballs had been removed from the gym but substituted instead a boxing
speed bag ("bag") with the chain removed. Just prior to the assault Claimant
threw, flipped or tossed the "football/bag" to Schiemann to start the next play.
The bag struck Schiemann in his chest. Claimant was thereupon assaulted,
sustaining the personal injuries complained of. He describes the assault by
"I had my back to him and I got grabbed from behind, threw down and kicked.
That's all I remember."
The assault occurred at center court and Claimant
went to the infirmary for
The sole supervisor of the annex gym building on that morning was Correction
Officer Clifford B. Smith (Smith), who testified that his
is located thirty feet down a hall from the gym entrance and exit
and that the desk is the assigned work
station for the gym supervisor. When seated at that desk Smith was able to see
the middle of the gym area through the windows of the double doors but could
hear very little unless there was yelling or loud noises, as the doors were
usually closed. He enters the gym every half hour on his rounds and he is
supposed to make entries in the log book of anything that is unusual, anything
out of the ordinary, and anything that is not proper.
The gym consists of a basketball court, with a weight room, an equipment room
and the civilian recreation leader's
located in separate rooms off one side of the open gym area. Smith testified
that there used to be footballs in the equipment room prior to October 23, 1996,
but then "... somebody from the rec department came in one day and said there
is no more football and took them out."
He stated that the primary function
of his job is the safety of the inmates and to ensure that they obey the
Claimant's prison job was a gym porter working and assisting Smith in various
duties. He was aware that playing football was a prohibited activity at
Groveland. He also knew that Schiemann was formerly employed at a county
sheriff's office and that he had been involved in an altercation with another
inmate while at Groveland. Claimant also knew that Rocco Lazazzaro had been
involved in an incident with another inmate. On the morning of October 23,
1996, the log book entry indicated that Smith opened the gym at 8:00 a.m. and
that a Sgt. Perry made rounds inside the gym at 9:30 a.m. Sgt. Perry was
Smith's immediate supervisor and Lt. Richardson was Perry's supervisor.
Smith testified that as he and Perry made the rounds together they saw the
inmates playing touch football. The teams were Lazazzaro and Schiemann vs.
Schindler and Liberio. He said that Sgt. Perry told him that the football
"... really not a good idea or somebody might get hurt."
Perry nor Smith did anything to stop the game, even though Smith knew that
playing football was a prohibited activity at the Groveland Facility annex gym.
Smith was in the gym two or three times on his rounds between 8:00 a.m. and
10:30 a.m., and each time he saw the inmates playing football. Smith knew
Schiemann, Lazazzaro and Liberio and testified that they never gave him any
problems. He testified how he had learned of the prohibition: "I never saw
it in writing, I learned when the rec department came in and took the footballs
and said it wasn't allowed."
He also stated that while he saw the inmates
on prior occasions playing with the boxing speed bag he did not comprehend they
were playing football until the morning of October 23rd. I do not credit his
testimony concerning his lack of knowledge of the football activity prior to
Smith first learned about Claimant's injury when Lazazzaro and Schiemann came
out of the gym and told him that
"Schindler got hurt, he ran into a wall."
Smith immediately went into
the gym and saw Schindler laying face down in the center of the floor and he
"was pushing himself up.
" He noticed that Schindler was "... bleeding
profusely through his nose and mouth."
Schindler also told him that he had
run into the wall.
Lazazzaro testified that prior to this incident he had heard that playing
football was not allowed, but never saw any rules in writing prohibiting it. He
admitted he was involved in a two on two touch football game on October 23
rd, and the players set their own rules and supplied their own "referee", yet
another inmate. He describes the assault on Schindler: "He (Schindler) got
into an altercation with Mr. Schiemann and he got hurt. ... John (Schiemann)
hurt him. He threw him to the ground and he kicked him twice."
went to Smith at his desk and told him that "Mike ran into a wall."
thinks that the reason for the assault was that Schindler tossed the boxing
speed bag into Schiemann's chest after a play. Lazazzaro testified that he knew
that the football game was not an authorized activity but that the inmates did
not attempt to conceal the game from the staff at the
Schiemann was called and sworn as a witness for the Claimant, but he exercised
his constitutional right to refuse to testify on the grounds that his answers
might tend to incriminate himself. He relied upon the Fifth Amendment and his
testimony was not taken.
Liberio (Claimant's teammate) was a deposition witness who basically confirmed
the testimony at trial, with the exception that he stated that the same four
participants played football about ten times in the few weeks just prior to
October 23, 1996, and that Smith was the correctional supervisor of the gym. He
also recalled that
"Schindler threw the ball (bag) back as normal. It was in their possession,
therefore their ball. It deflected off Lazazzaro and hit Schiemann. ...
Schiemann broke into a fit of rage; threw Mike Schindler down from behind and
then commenced to stepping on him, his face and neck area."
continued, "I believe he hit him with his left hand to the back of his head
area which knocked Schindler to the floor at that point. Immediately upon his
hitting the floor he was stepping on him, crushing
Sgt. Perry testified that he went into the gym with Smith for rounds at about
9:35 a.m., observed the actions of the inmates and asked Smith what was going on
and Smith said the inmates were playing catch. After observing the situation
for five minutes it became obvious to Perry that the inmates were playing
football, as he stated,
"It was definitely a football game, but it was a casual football game. There
was laughing and joking around ... There was no cause for concern of any
He saw no other persons on the gym floor at that time. He stated
that he had been assigned to Groveland since 1992 and had never observed
football being played, inside or outside, until October 23, 1996, when he was in
the annex gym with Smith.
"Football in itself is an outlawed sport. And it's only outlawed because,
not because of the combatancy (sic) of the sport, they don't consider that the
problem. They consider the problems arising from the gambling that
surrounds the game and injuries that are subsequent to the game, possibly. It's
not because they expect the guys, the players to get to the combatant stage and
do harm to each other, that's not the case."
He did not find, during the
five minutes he observed the game, that this was one of those occasions where it
was "incendiary." As he testified, "On this particular day, there was
laughing and joking around between each point. And you could see that they were
into the game. I don't think they even paid attention to us after the initial
walk into the room."
He then reminded Smith of the Groveland policy prohibiting football, that the
game was an unauthorized activity and that it was not a good idea as someone may
possibly get hurt. However, he did not personally direct the players to stop
playing football and he never returned to the gym to see if his "reminder" about
not playing football had been effectuated by Smith. He had previously
determined that the four inmates were friendly with each other, as had
Lieutenant David R. Richardson testified as a deposition witness. He testified
that he was the shift watch commander of the annex on the day of the assault.
He stated that football at Groveland
"... is not authorized, ... we don't even allow football..."
and that he
had never seen football games played inside Groveland. He said the rules or
facility policy concerning Athletics/Sports
Groveland were not posted in the annex gym; were not stated in the inmates'
handbook, and that the only way inmates would know what athletic activities were
permitted would be if a correction officer or civilian recreation aide told
With respect to assaults by one inmate upon another in State correctional
facilities, the law is generally well settled. The State must provide
reasonable protection from foreseeable risk of harm, including the foreseeable
risk of attacks by other inmates (Flaherty v State of New York
, 296 NY
342; Blake v State of New York
, 259 AD2d 878; Colon v State of New
, 209 AD2d 842; Sebastiano v State of New York
, 112 AD2d 562).
Correctional facilities, per force, house violent criminals in their
populations, and inevitably face the potential of violence within their walls
, Jones v North Carolina Prisoners' Labor Union
, 433 US 119,
132). Thus the prospect and reality of assaults and fights between inmates are
all too common.
The State is not, however, an insurer of the safety of inmates and the fact
that an assault occurs does not give rise to an inference of negligence(
Padgett v State of New York
, 163 AD2d 914, lv denied
76 NY2d 711;
Schittino v State of New York
, 262 AD2d 824). Generally, liability in a
claim asserting negligence on the part of the State when one inmate assaults
another inmate must be predicated upon one of the following grounds: (1) the
victim was a known risk and the State failed to provide protection
(Sebastiano v State of New York
); (2) the State had notice
that the assailant was particularly prone to perpetrating such an assault and
failed to take precautionary measures (Littlejohn v State of New York
218 AD2d 833; Wilson v State of New York
, 36 AD2d 559), or (3) the State
had ample notice and ample opportunity to intervene but failed to act
(Huertas v State of New York
, 84 AD2d 650).
Here clearly there are no allegations that Schindler was a known risk. And,
while Claimant has addressed the disciplinary record of Schiemann, the
assaulting inmate, consisting of one prior fight in a single incident, it cannot
be said that there was an apparent proclivity to violence, nor was there a
history of animosity between the two inmates of which the State was or should
have been aware (see,
Hull v State of New York
, 105 AD2d 961; Wilson v State of New
). Indeed, to all observers, as set forth in the record
before me, prior to this incident Claimant and Schiemann appeared to get along
with one another, and even prayed together. Thus, to the extent that Claimant
relies upon a theory of culpability of the Defendant for the negligent failure
to segregate or otherwise isolate Schiemann because of his purported violent
propensities, there is inadequate proof and that part of the claim is
But my review now focuses on the question of notice and the opportunity to
intervene and the failure to act, essentially the failure to properly supervise
the Claimant, Schiemann and the other football players. The standard of care is
that of reasonable supervision, and whether with adequate and proper supervision
by correction officers reasonably attentive to their duties, the assailant would
in all likelihood have been stopped and the assault prevented (
Huertas v State of New York
). I so find. Here, despite
the fact that the correction officer and his supervising sergeant both observed
the playing of football, with the expressed knowledge and understanding that it
was prohibited and that somebody could get hurt, both allowed it to proceed
without supervision. This negligent supervision allowed the unprovoked attack
to take place. I find that it was foreseeable that an incident or situation
could occur and the State has violated its duty of protecting against
foreseeable risks. While a proximate cause of this assault and subsequent
injuries are the actions of Schiemann, another proximate cause was the lack of
supervision in allowing a prohibited activity. Indeed, the Defendant's
negligence was exacerbated by CO Smith when he allowed the prohibited activity
to continue even after having been advised of the risk that someone could get
hurt by Sgt. Perry, and, in any event, in failing to provide any greater level
of supervision after having been put on such notice.
Thus, I find that a proximate cause of the assault by Schiemann on Schindler
was the fact that
Perry and Smith each individually breached their duty to properly supervise
the four inmates and their failure to enforce the rules of Groveland. By
tacitly permitting an unauthorized activity, it created an unsupervised and
unauthorized situation which allowed the safety of Schindler to be compromised
on October 23, 1996. In addition, DOCS staff at Groveland did not inform either
the inmates or their own staff that football was an unauthorized activity by
publishing written rules and standards in this instance. There is not a
scintilla of proof presented at this trial that there was any publication of the
football prohibition by the Groveland administration or the central office of
I reject Defendant's well-reasoned but misdirected argument that liability
should not attach here as this was merely a sporting event and that it is a risk
of participation in sport that a participant might lose his cool or control.
Thus, the State implies that if I were to assess liability here, sporting
activity in the correctional facilities might have to be curtailed. I do not
intend, and the evidence here certainly does not support, a finding that all
sports competition could lead to violence, and thus the State, to protect itself
from future exposure, would have to limit or control sports activities in its
correctional facilities. And I further do not find that football is inherently
a dangerous sport.
To the contrary, what I do hold, and nothing more should be inferred, is that
an articulated prohibition against participation in a football game, which is
ignored and thus tacitly approved by staff, coupled with a lack of supervision,
combined to be a proximate cause of the incident complained of. I was persuaded
by the holding in
Derdiarian v Felix Contr. Corp.
, 51 NY2d 308, where the Court of Appeals
held that an injured party need not demonstrate the precise manner in which an
accident happened, and that liability is not precluded because a defendant
"could not anticipate the precise manner of the accident ... or injuries ...
where the general risk and character of injuries are foreseeable" (id
at 316-17). The Defendant's cognizance was demonstrated by Perry's observation
to Smith that playing football was not a good idea because somebody might get
hurt. Thus the Defendant here allowed Claimant to participate in an
unauthorized and unsupervised football game, with the articulated risk that
someone could get hurt, and absent that negligence, the Claimant would not have
I reject the Defendant's implication that Smith was exercising his discretion,
and that perhaps some immunity might flow therefrom, in allowing the football
game to continue until the end of the recreation module because his observations
during his rounds were that the players were not being overly aggressive. Since
football was perceived to be unsafe, for whatever reasons, and prohibited at
Groveland as a matter of policy, there is no proof in the record that Smith, as
a correction officer, was empowered to override policy decisions. Furthermore,
I have excluded any prior disciplinary actions with respect to CO Smith from
In sum, the Defendant was negligent in that (1) Smith permitted the football
game with the foreknowledge that it was prohibited; (2) Smith failed to
adequately supervise and monitor the gym activities, his occasional rounds to
the contrary, and (3) Perry observed the violation of the football prohibition,
failed to stop it himself, and never checked to see if it had been stopped. Of
course, the failure to publish or post the rules in the gym or elsewhere,
irrespective of the tacit understanding of the prohibition, contributed as well.
I find that Claimant was not responsible for this incident in any fashion, and
engaged in no culpable conduct. Specifically I find that he did not forcefully
throw the football/bag provoking Schiemann and bears no partial responsibility.
The Defendant must answer in damages.
All motions not heretofore ruled upon are now denied.
Let interlocutory judgment be entered accordingly. The parties shall appear at
a calendar call before the court on May 2, 2001 at 9:15 a.m. to schedule the
trial on damages.