New York State Court of Claims

New York State Court of Claims

SCHINDLER v. STATE OF NEW YORK, #2001-005-006, Claim No. 96692


The State is liable in damages for its negligence in permitting inmates to participate in a touch football game despite Groveland Correctional Facility's prohibition, for negligent supervision and for allowing the game to continue even after a sergeant told a correction officer that someone could get hurt. This negligence was a proximate cause of the injuries sustained by Claimant when he was assaulted by another inmate while being allowed to continue to participate in a prohibited activity.

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):

Donald J. Corbett, Jr.
Claimant's attorney:
Cellino & BarnesBy: Stephen J. Lacher, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 30, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

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 Schiemann as:
"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 treatment.[1]
The sole supervisor of the annex gym building on that morning was Correction Officer Clifford B. Smith (Smith), who testified that his desk[2]
is located thirty feet down a hall from the gym entrance and exit doors,[3] 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 office,[4]
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 rules.
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 activity was
"... really not a good idea or somebody might get hurt." Neither Sgt. 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 October 23rd.
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." He then went to Smith at his desk and told him that "Mike ran into a wall." He 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 facility.
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." Liberio 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 him."
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 nature." 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.
Perry continued
"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 Smith.

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[5] at 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 them.
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 York, 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 (see, 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, supra); (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 York, supra). 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 dismissed.
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, supra). 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 DOCS.
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 been injured.
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 consideration.

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.

March 30, 2001
Rochester, New York

Judge of the Court of Claims

[1] Exhibits 10 and 11.
[2] Exhibit 4.
[3] Exhibits 2 and A.
[4] Exhibit 1.
[5] Exhibit 12.