New York State Court of Claims

New York State Court of Claims

CABA v. THE STATE OF NEW YORK, #2002-005-007, Claim No. 98827


The Defendant is not liable for Claimant's injuries sustained when a fellow inmate assaulted him with a weight plate or barbell in an outdoor weight lifting area, not withstanding Department of Correctional Services' subsequent directive regarding the welding of such equipment.

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:
Finkelstein & Partners,By: Julio E. Urrutia, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, while an inmate in the custody of the New York State Department of Correctional Services (DOCS), alleges that at approximately 9:55 p.m. on July 5, 1998, he was assaulted by another inmate with a hard object causing him personal injury at the Livingston Correctional Facility (Livingston). The State's liability is predicated on essentially two theories: (1) that the Defendant failed to protect the Claimant from a foreseeable risk of being attacked by another inmate, and (2) that the Defendant was negligent in failing to provide adequate security/supervision at Livingston. The trial of this claim was bifurcated, and this decision will address only issues related to liability.

Correction Officer Keith Emminger testified that he was in the yard with two fellow correction officers when a verbal argument, in Spanish, between Claimant and inmate Juan Duran erupted. Emminger intervened and took both inmates' identification cards. He ordered Duran to start exiting toward the gate area, and directed Caba to remain with him, telling him that he would be the last to leave the yard. At that time there were some 50 to 75 inmates in the yard and it was scheduled to close at 10:00 p.m. Emminger did not see Duran actually exit the yard, but testified that he walked Caba to the gate and that Claimant was the last inmate to leave the yard. He did not see Duran assault Caba that evening, and did not see them enter or leave the bathroom in the yard.

At the time of this incident, when the inmates had exited the yard, the procedure in effect was to "eyeball" the outdoor weight area to be sure that all items were accounted for, albeit not to take an inventory. While the exact instrumentality was not able to be specified, it appears that the hard object with which Duran assaulted Claimant likely was a weight plate or dumbbell or barbell from the outdoor weight area. After Duran returned to his dorm, he notified a correction officer that he had "had a fight earlier in the yard with inmate Caba," and when Caba returned to his dorm, both inmates were escorted to the infirmary for medical examinations. After those examinations, the injury to Caba was discovered and documented.

Lieutenant Robert Escudero was the vacation relief watch commander on July 5, 1998, and as such was in charge of the Livingston Correctional Facility. On that evening there were three correction officers assigned to the yard, and he received notice from a correction sergeant that Claimant had been injured. Escudero drafted an Unusual Incident Report for transmission to DOCS headquarters in Albany. In essence the Unusual Incident Report indicated that Duran assaulted Caba with a hard object which Caba blocked with his arm, causing injury. The assault was unwitnessed and occurred during yard activities, prior to Emminger's first involvement when he took both inmates' identification cards at which time Emminger did not notice any injury to Caba. The assault was with a hard, blunt object, possibly a weight plate or weight bar. Caba did not tell any correction officer that he had been assaulted while in the yard, and he admits that other correction officers did not notice his injury, as it was not visible. Furthermore, Claimant did not report the alleged assault to any correction officers. Nonetheless, and despite his injury, Claimant then went to the gate, asked for his identification card, and then went back to his unit.

Claimant's trial testimony diverged from the accounts described above. However it also did not comport with earlier testimony he provided at his Tier II hearing on July 10, 1998 (Exhibit D). At trial Claimant testified that when Emminger first separated the two inmates after the verbal dispute, he had no fear of Duran as there had been no prior fight or argument with Duran. Claimant then testified that he was assaulted when he left the yard bathroom after Emminger's involvement and the surrender of their identification cards. However, at his Tier II hearing held on July 10, 1998, just five days after the incident, he testified that the alleged assault took place prior to Emminger's involvement, and that he intentionally withheld any information about the assault and that he intentionally did not report any injury.

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, by their very nature, house violent criminals, 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; Smith v State of New York, 284 AD2d 741). Claimant does not make any allegations and offered no proof of inadequate staffing of the security in the yard; there were no prior threats or disputes between the two inmates, and no evidence was offered with respect to the assaulting inmate's disciplinary history or proclivity for violence.
To the extent that the claim herein sounds in negligence because of the Defendant's alleged failure to protect the Claimant from a foreseeable risk of being attacked by another inmate, it may not stand. Primarily this is so because Claimant's proof regarding notice was equivocal. Claimant testified at his Tier II hearing that the assault took place prior to the verbal altercation, after which the inmates were separated and their identification cards confiscated. However, at trial Claimant testified that the assault took place after the first incident, near the bathroom, and that he was injured in a second incident some 15 minutes later, theoretically providing the State with a sufficient opportunity and notice that provided sufficient foreseeability to have prevented the assault. Given this equivocal testimony regarding when the assault took place, to wit, as a part of the initial verbal confrontation between Claimant and Duran, or afterwards, when Emminger returned the Claimant's identification card that had been confiscated as a consequence of the verbal dispute, I decline to hold the State liable in negligence. Reliance upon the initial verbal confrontation as providing the requisite foreseeability is misplaced, because of the absence of any credible evidence that the assault took place in a second later confrontation. Without any prior notice whatsoever, Claimant has not shown that the assault by inmate Duran was foreseeable in any respect. That cause of action is dismissed.

Claimant also relies upon a theory that the Defendant failed to protect the Claimant from a foreseeable risk of being attacked by another inmate, because weight plates, barbells or dumbbells in the outdoor weight area of the exercise yard were not secured or inventoried in a manner similar to those in comparable indoor facilities. At the date of this assault, DOCS directives did not mandate or require that an outdoor weight area be fenced or specifically secured or that individual weights be welded to the bar. After this incident different regulations were issued.[1]

Emminger testified that he had second-hand awareness from other correction officers of other incidents at other facilities, but not at Livingston, where weights, barbells and the like had been used in assaults between inmates.[2]
Lt. Escudero testified similarly that at the time of the incident there was an existing policy that an inventory took place in the indoor weight room (as opposed to the unfenced outdoor weight area) at the end of each day so that the weights and barbells were counted both for safety purposes and to keep indoor weight equipment from being exposed to outdoor weather conditions.
Escudero testified similarly that at the time of the incident, in the two years that he had been assigned to Livingston, he was unaware of any assault upon an inmate using any weights or barbells at Livingston. He acknowledged that he was aware of other instances in other facilities in which weights or barbells had been utilized in inmate assaults. He also acknowledged that he had not discussed implementation of any inventory policy with respect to the outdoor weight area prior to this incident. Thus it appears from the evidence before me that there were no prior incidents at Livingston Correctional Facility, prior to the instant assault, but that such assaults had occurred at other facilities. It also appears that an inventory system existed prior to the incident in question with respect to the indoor weight room.[3]

Claimant would have me impose liability because of the absence of a written policy or directive with respect to the outdoor weight area. The regulations issued on November 23, 1998 (Exhibit 1) imposed directives with respect to fencing outdoor weight areas and the welding of "free weight plates." This policy was imposed some 4 ½ months after the incident in question. Lt. Escudero testified of his awareness of some four to five incidents prior to the incident in question where assaults using weight plates or barbells occurred during his then-nineteen years of service with DOCS. It cannot be said on the record before me that such a history, even where such a directive apparently did exist with respect to indoor facilities, can be relied upon to infer negligence for the failure to have imposed such policy with respect to outdoor weight yard areas, and it certainly does not form a basis upon which foreseeability can be founded. Indeed, it may be argued that this incident provided the very degree of foreseeability which resulted in the implementation of the new directive. This cause of action is similarly dismissed.

This trial was very well-litigated and Claimant's arguments were cogently presented. Unfortunately for Claimant the circumstances here, particularly because of his contradictions between his testimony at trial and his earlier disciplinary hearing do not implicate any culpable conduct by the Defendant. Accordingly the claim must be dismissed.

All motions not heretofore ruled upon are now denied. Let judgment be entered accordingly.

July 30, 2002
Rochester, New York

Judge of the Court of Claims

[1] Exhibit 1.
[2] No number of incidents was quantified, and it was not clear whether any such assaults involved welded or unwelded weight plates, or whether such incidents preceded any directives regarding inventorying indoor weight room equipment.
[3] No DOCS directives with respect to inventorying of indoor weight room equipment was offered into evidence.