New York State Court of Claims

New York State Court of Claims

RHODES v. THE STATE OF NEW YORK, #2001-019-017, Claim No. 94100


Claimant failed to establish a prima facie case of negligence against the State for his assault by another inmate; claim dismissed.

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):

Claimant's attorney:
LAW OFFICE OF HARRY I. KATZ, PCBY: Ira Thomas, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 14, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Tony Rhodes, alleges he was injured as a result of the negligent supervision of correction officers at the Woodbourne Correctional Facility (hereinafter "Woodbourne") while incarcerated there as an inmate on November 6, 1995. This matter was bifurcated and a trial on liability took place in the Binghamton District on June 6, 2001. Consequently, this Decision addresses the issue of liability only.

Claimant was housed in the E-3 housing block at Woodbourne located in Woodbourne, New York. On November 6, 1995, Claimant had refereed a basketball game and was returning from the gym to his E-3 housing area at approximately 10:00 p.m. He entered the recreation area of the housing unit and took an immediate left down a twenty-five-foot hallway to the dorm area of the housing unit. He stowed some of his personal belongings and secured the same while in the dorm area and within five minutes went back to the recreation area to get something to eat and to watch Monday night football on TV. Claimant testified there are two desks or posts in the E-3 housing unit, one in the recreation area and another in the dormitory area. The dormitory and the recreation area, as indicated above, are separated by a hallway approximately twenty-five feet long. Claimant testified that when he exited the dorm area to return to the recreation area there were two officers at the post in the dorm area engaged in some type of activity, but he was not certain as to what they were doing. When the Claimant entered the recreation area, he got something to eat and took a seat at one of the picnic tables in front of one of the television sets. Claimant observed two "groups"[1]
of inmates (seven to twelve inmates total) arguing behind him; one on each side of the recreation area. Claimant said that he saw weapons or knives in the hands of some of the inmates who were involved in this verbal altercation. He testified that at this time there were no correction officers in the recreation area, because both officers were still in the dormitory area. Claimant subsequently heard a bang and as he turned to look behind him he saw that a table was falling toward him. At the same time "several people" fell on top of him. Claimant felt a pain in his back and subsequently realized that he had been stabbed. Claimant testified that the correction officers were there within three to five seconds or "in a heartbeat" and separated the two parties that were fighting, but the damage was already done. Claimant testified that the two combatants who ultimately fell on top of him were inmates Ross and Chun. Chun had just been brought to the E-3 housing unit from keeplock only minutes prior to this altercation. By his own words, Claimant testified that this facility is an "abnormal place where abnormal behavior is normal." He further indicated that stabbings and the carrying of weapons are a way of life, it is simply "survival of the fittest".

The State called Correction Officer Paul Losito, a seven-year veteran of the Department of Correctional Services, who indicated he was on duty on the E-3 block at Woodbourne on November 6, 1995. He confirmed the floor plan of the E-3 housing unit showing the dormitory and recreation areas as well as the areas where the altercation took place as described by Claimant. (St. Ex. H). He testified that about 9:30 p.m. that same evening a separate incident had taken place involving an inmate by the name of Nelson who had started a fight in the recreation area over the channel being watched on the television set. Ultimately, the Nelson incident was quelled and Nelson was transferred to keeplock at which time keeplock officers transferred Inmate Chun back to Nelson's cell in the E-3 unit. The witness testified that he went back to the dormitory area of the E-3 unit where he was noting the Nelson record in the incident book as well as filling out paperwork and various reports pertaining to that misbehavior incident. Correction Officer Jeffrey Nickerson, a seven and one-half year veteran of the Department of Correctional Services, also testified that he was at the dormitory station with Correction Officer Losito filling out paperwork relative to the Nelson incident and making various log book entries. Consequently, at around 10:00 p.m. at the time that Claimant returned from the basketball game, both Correction Officer Losito and Nickerson were focused on the dormitory area of the E-3 housing unit and no one was stationed in the recreation area.

The testimony between Claimant and the Correction Officers vary, but the Court is satisfied that the recreation area post was unattended for somewhere between five and as much as twenty minutes. It was during this period of time that Claimant entered the recreation area and the subsequent argument broke out between Ross and Chun. Claimant testified the argument began as an exchange of verbal barbs lasting approximately seven to eight minutes before violence erupted which resulted in Claimant's injury. Both Correction Officers, however, testified that when they heard the loud crash that resulted from the physical fight between Ross and Chun, it only took them a matter of seconds to get from the dormitory area to the recreation room, and the parties were separated. The Correction Officers found no weapons or knives in the possession of any of the inmates or on the cell block.

Claimant alleges that the State was negligent in (1) improperly supervising both Ross and Chun for at least seven to eight minutes and (2) in leaving the recreation room post unattended anywhere from five to twenty minutes following the Nelson incident. Claimant further argues that under these circumstances the same amounted to inadequate or negligent supervision and as a result of that negligence the State failed to detect and quell an argument that brewed for seven to eight minutes prior to escalating into a physical fight. Claimant alleges that had an officer been present at the recreation room post the verbal argument could have been quelled; the fight could have been avoided; and Claimant would not have been injured.

It is well-settled that the State is not an insurer of the safety of inmates, although it must provide reasonable protection against foreseeable risks of attack by other inmates. (
Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). Nevertheless, the mere occurrence of an assault does not establish negligence. (Colon v State of New York, 209 AD2d 842). In order to establish the State's liability for an inmate on inmate assault, Claimant must prove that: (1) the Claimant himself was a known risk and the State failed to provide reasonable protection; (2) the State had notice that the assailant was particularly prone to perpetuating such an assault and failed to take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene and failed to do so. (Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833; Schittino v State of New York, 262 AD2d 824, lv denied 94 NY2d 752). Moreover, the mere fact that a guard may not have been present at a particular location is insufficient to support a finding that the State failed to exercise reasonable care, absent a showing that officials had notice of an "especially dangerous situation" at that site. (Padgett v State of New York, supra, 163 AD2d, at 915).

First, Claimant did not offer any evidence that he was a known risk himself. Secondly,

although Claimant was able to identify the two inmates who fell on him he was unable to specifically identify his attacker. As such, Claimant failed to offer any evidence establishing that the State had notice that his assailant was prone to attack yet failed to take safety measures. Finally, it is well-settled that the fact that a guard leaves inmates unsupervised at a certain locale within a facility at the time of an incident is insufficient, absent a showing that prison officials had notice of an especially dangerous situation, to support a finding that the State failed to exercise reasonable care. (Colon v State of New York, supra, 209 AD2d 842; Padgett v State of New York, supra, 163 AD2d 914). Here, Claimant did not offer any proof that the State had any advance notice of an "especially dangerous situation" at this site either due to the verbal argument or due to the prior Nelson incident. In fact, there was no testimony relating this incident to the Nelson incident. Nor was there any proof that the State had notice of the verbal argument before it escalated to a physical altercation. The fact that the verbal argument may have lasted as long as eight minutes does not, by itself, establish the existence of an especially dangerous situation and, in any event, there was no proof supporting the conclusion that the officers in the recreation area heard the exchange of verbal barbs. By way of comparison, if Claimant had alerted the officers to the brewing fight and the fact that he saw weapons which was then ignored by officers, then the State could be charged with notice of an especially dangerous situation. But Claimant did not report the incident even though he indicates the verbal exchanges lasted as long as seven to eight minutes and that he saw weapons. Rather Claimant merely turned his back on the incident and did not feel the need to remove himself from harm's way to an area of relative safety. By remaining seated at the table with his back to the antagonists, apparently even the Claimant did not find the situation to be "especially dangerous" - even in a facility where in Claimant's own words..."abnormal behavior is normal", the carrying of weapons is a way of life, and the rule of the day is..."survival of the fittest". In addition, even though the recreation area post was unattended for a period of time, the credible testimony at trial supports the conclusion that as soon as the officers heard a "loud bang" they immediately responded, as described by Claimant, "in a heartbeat". Consequently, Claimant has failed to establish that the State had notice of an especially dangerous situation, coupled with an opportunity to intervene, yet failed to do so; or that the State failed to exercise reasonable care in the supervision of the inmates of E-3 housing block on November 6, 1995.

In sum, the Court finds from the evidence and testimony offered at trial that Claimant has failed to establish a prima facie case of negligence against the State for his assault of November 6, 1995.

Based on the foregoing, Claim No. 94100 is hereby DISMISSED.


August 14, 2001
Binghamton, New York
Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.