New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2002-029-233, Claim No. 100086


Claimant, a visitor at Green Haven CF, was attacked by the inmate she was visiting. Court finds claimant failed to establish any negligence on the part of the State. Court also finds no special duty owed to claimant as a visitor at a correctional 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):

Claimant's attorney:
Virag & ViragBy: Jonathan Ginsberg, Esq., of Counsel
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Mary B. Kavaney, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 23, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for personal injuries sustained by Maria Rosario on October 16, 1998 when she was assaulted by an inmate at Green Haven Correctional Facility (hereinafter Green Haven). The trial of this action was bifurcated and this decision deals only with the issue of liability.

Claimant, Maria Rosario, testified at trial with the aid of a Spanish speaking translator. Claimant testified that several years ago she visited a cousin who was incarcerated and he told her about an inmate named Manolo Abreu who wanted to meet her; commencing in 1996, she spoke to Abreu several times by telephone, then visited him for the first time at Green Haven in November 1996; Abreu told her that he was in prison "for violence" but that he was innocent and she believed him. Claimant testified that when she entered the prison on the first visit, security procedures took about 20-25 minutes before she was allowed to enter the visitors' room. She stated that she had to pass through a stationary metal detector and then a hand-held metal detector was used.

Ms. Rosario stated that she again visited Abreu at Green Haven about a month after the first visit and that the second visit occurred in a different, much larger, visitors' room which was referred to as the "New Visitors Rooms" (hereinafter NVR). She further testified that the security procedures were similar to those she encountered on her first visit to the prison; that there was a bathroom in the NVR for visitors to use and another bathroom but she did not know if it was for the inmates' use only. The witness stated that when she visited Abreu in the NVR typically there were two or three correction officers in the room. They were usually at a fixed post but sometimes one would walk around the room.

Ms. Rosario stated that in 1997 Abreu falsely told the Department of Correctional Services (hereinafter DOCS) that she was his wife. Therefore, she was able to participate in the Family Reunion Program and have an overnight trailer visit with Abreu. She testified that she was in love with Abreu and felt safe visiting him. Claimant and Abreu had two conjugal visits in the trailer with the second trailer visit occurring about seven months after the first in June or July 1998. During this period she also visited him in the NVR, sometimes once a month, sometimes twice a month. The witness stated that during the second trailer visit she "got a little nervous" when Abreu told her a story of how an inmate could have killed his wife during a trailer visit. After the second trailer visit, she visited Abreu in the visitors' room and she felt safe there because the visitors were searched, correction officers were present and it was her belief that the inmates were also searched prior to visits.

On October 16, 1998 claimant arrived at Green Haven in the morning to visit Abreu. She went through the usual security procedures prior to her entry into the NVR. She testified that she visited with Abreu for four or more hours. During this visit they talked about the fact Abreu was being released from jail that year and their life together and how happy they would be. At about 2:45 p.m., visiting hours were just about over and claimant started to get up to leave but Abreu told her not to leave yet because there were other visitors still around; he gave her a hug and kissed her, told her he had to go to the bathroom and not to leave until he got back; when he came back, they were standing about 5 to 10 feet in front of the correction officer's post and Abreu turned claimant so her back was to the officers; then as if he was going to kiss her, he went to touch her face and said here, take this; that he then let her go and he began to run; that she started screaming because she was bleeding. Claimant stated she was attacked on the left side of the face behind the cheekbone. She does not know what weapon cut her. She stated she never saw the weapon. She also stated that she has not had any contact with Abreu since that day.

On cross-examination, claimant stated that between October 1996 and October 16, 1998 she visited Abreu over 30 times; that visiting hours were from 9:00 a.m. to 3:00 p.m. and that she usually arrived as close to 9:00 a.m. as possible and stayed as close to 3:00 p.m. as she was allowed. She agreed that each visit lasted at least several hours. Claimant stated that she never advised any DOCS employee that she was afraid of Abreu prior to the assault nor did she advise any DOCS employee about the story Abreu told her in the trailer regarding the other couple. Claimant testified that during her many visits with Abreu they never raised their voices or yelled at each other, they never had a verbal altercation and she never asked for assistance from the correction officers because she never felt afraid of Abreu. She stated that on the date Abreu attacked her, she and Abreu were physically affectionate; that they sat together and held hands; that Abreu did not appear angry nor did he tell her he was angry with her; that he did not yell at her.

Correction Officer (C.O.) Charles Grima was called as a witness by claimant. The witness stated that he is currently assigned to Green Haven and has been working at that facility for almost 13 years. He stated that in October 1998 the facility regulations did not require a strip frisk of inmates prior to entering the visiting rooms for a visit, however, following a visit the inmates were subjected to a strip frisk. C.O. Grima testified that he was working the 3:00 p.m. to 11:00 p.m. shift at Green Haven on October 16, 1998, that following the assault on claimant Sergeant (Sgt.) Cardarelli interviewed witnesses; that the Sgt. then told Grima to begin a search of the NVR for a weapon; that he searched the NVR and recovered a weapon about 10 feet from where he saw blood and the blood was located near the officer's post (see Exhibit 10 [Floor Plan of NVR]); that the weapon appeared to be a blade from a razor. C.O. Grima stated that the facility issued safety razors to the inmates for shaving purposes; that the blade cannot be removed from a safety razor. He said he does not know where the blade came from but conceded that when he wrote the Inmate Misbehavior Report issued to Abreu he wrote that it appeared to be a safety razor issued by the State and altered into a weapon. The witness stated that he was not sure of the guidelines for issuance of safety razors in 1998 but that new razors were given out when the inmate returned an old one.

C.O. Grima stated that prior to entering a visitors' room an inmate is pat frisked; that is, the inmate removes his shoes and they are searched, then the inmate's hands are viewed by a C.O., then the seams of his clothes, his pockets, the waistband, cuffs of his pants and his shirt collar. A hand-held metal scanner is then used on the inmate to supplement the pat frisk. C.O. Grima stated that this is done for the safety of the inmates, C.O.s and visitors.

Claimant submitted into evidence DOCS Directive 4910 "Control of and Search for Contraband" (Exhibit 19) and then rested. The State then made a motion to dismiss for failure to prove a prima facie case. The Court reserved decision on the motion.

The State called Sgt. Carmelo Cardarelli as a witness. The Sergeant testified that he has been employed by DOCS as a C.O. since December 1983 and was employed at Green Haven in 1998. The witness described how a C.O. performs a pat frisk of an inmate prior to the inmate entering the visitors' room. His testimony was consistent with C.O. Grima's testimony regarding the procedure. He said that the pat frisk and metal scan takes three to five minutes.

Sgt. Cardarelli testified that in 1998 only those Green Haven inmates with a clean disciplinary record and no restrictions for a period of 90 days were allowed to receive visitors in the NVR; that the NVR was a nicer room than the other visitors' rooms and use of the NVR was considered a reward for inmates who had good behavior; that he was working the 3:00 p.m. to 11:00 p.m. shift on October 16, 1998 at Green Haven and he was the supervisor of the left side of the front of the facility; that he became aware of an incident involving Inmate Abreu in the NVR; that in the course of preparing for this trial, he reviewed Abreu's disciplinary history and from 1996 when Abreu entered DOCS custody until October 16, 1998, the date of this incident, Abreu had no disciplinary history - he was not involved in any incidents.

The witness also testified that in 1998, C.O.s on the 7:00 a.m. to 3:00 p.m. shift were responsible for distributing razors to the inmates; that each inmate was allowed two razors for which he was responsible; that in order to get a new razor, the inmate had to return one; that during cell searches an inmate had to produce his razors or he would be issued a misbehavior report. The Sgt. also stated that in 1998 the visiting rooms as well as the bathrooms in the visiting rooms were searched for contraband both prior to and after visiting hours. He stated that in 1998, as well as today, inmates could not be strip searched prior to a visit unless an officer had probable cause to believe that an inmate was concealing contraband; that this is the result of Court decisions; that strip searches of inmates are conducted following a visit to ensure that no contraband was brought into the facility.

On cross-examination, the witness stated that he entered the NVR within a few minutes of the attack upon claimant; that he conducted an interview of Abreu and claimant; that C.O. Jiming acted as a translator; that Abreu stated he smuggled the razor into the NVR in his underwear; that Sgt. Cardarelli told C.O. Grima to search the NVR for the razor and based upon information provided by Abreu told C.O. Grima what part of the NVR to search. Sgt. Cardarelli also stated that if a pat frisk and hand-held metal detector scan is properly performed a C.O. should be able to detect the presence of a razor on an inmate's person.

On re-direct examination, Sgt. Cardarelli stated that prior to October 1998 he had performed over 1,000 pat frisks of inmates and that during these frisks he had recovered about 50 weapons. He said that inmates hide weapons in various body cavities and in their hair. He stated that if a weapon is hidden in an inmate's body cavity, even if a pat frisk is performed properly, chances are the weapon will not be found.

It is well settled that the State is responsible for the protection of others in the operation of its institutions (
Dunn v State of New York, 29 NY2d 313). The operation of a State institution is a governmental function and the State is immune from liability resulting from administrative decisions, such as the level of staffing (Crawford v State of New York, 60 AD2d 729, affd 47 NY2d 884). The State as a landowner is subject to the same rules of liability as a private landowner (Miller v State of New York, 62 NY2d 506). The defendant's duty includes the protection of the public entering upon its premises from foreseeable risk of attack (Sebastiano v State of New York, 112 AD2d 562). The State is not an insurer of the safety of those entering its institutions and the mere happening of an incident does not create an inference of negligence (see, Mochen v State of New York, 57 AD2d 719).
Claimant asserts that she was attacked by Inmate Abreu with a single-edge razor which had been fashioned into a weapon and smuggled by Abreu into the NVR. She asserts that the State was negligent in that Abreu was not properly pat frisked prior to his entry into the NVR. Claimant relies upon Sgt. Cardarelli's statement that if a pat frisk and metal detector scan is properly performed the presence of a razor on an inmate's person should be detected.

In order to establish a claim for common law negligence, claimant bears the burden of establishing by a preponderance of the evidence that (1) she was owed a duty of care by the defendant; (2) the defendant failed to exercise the duty; (3) that claimant suffered injury as a proximate result of that failure (see,
Akins v Glens Falls City School Dist., 53 NY2d 325). In addition, the injury suffered must be reasonably foreseeable (see, Payne v City of New York, 277 NY 393). Here, the Court finds that claimant has failed to prove by a preponderance of the credible evidence that the State breached a duty of care owed to claimant.
The State established that all inmates were pat frisked and a metal detector scan of them was performed prior to entry into the NVR on the date claimant was attacked. While Sgt. Cardarelli stated a proper search
should have found the weapon Abreu smuggled into the NVR, he did not state that a proper search would have found the weapon. No evidence was presented to establish that the search of Abreu was improper, in violation of standard procedure or otherwise negligently conducted. No expert testimony was elicited on this issue. The fact that an inmate was able to smuggle a weapon into the visitors' room does not, per se, provide an adequate basis to find culpable conduct by defendant (Smith v State of New York, Claim No. 94804; filed October 27, 1998, Bell, J.; see also, Sanchez v State of New York, Claim No. 89153, filed October 18, 1995, Bell, J.). To hold the State liable for its failure to find a weapon during a pat frisk supplemented by use of a metal detector would raise the State to the level of an insurer. As stated previously, it has been long held that the State is not an insurer of the safety of those entering its institutions (see, Mochen v State of New York, 57 AD2d 719, supra). "The history of assaults with sharp instruments in State correctional institutions demonstrates that inmates can be especially ingenious in crafting and concealing weapons that diligent searches by correctional facility personnel do not uncover" (Parsley v State of New York, Claim No. 90411, filed February 25, 1999, Bell, J., slip opinion p 7).
The Court further finds that claimant has failed to establish by a preponderance of the credible evidence that the State was negligent in the distribution or supervision of the single edge razors it provided to inmates.

Claimant further asserts that the State failed to provide adequate supervision of inmate Abreu. The State does not have a duty to provide "unremitting supervision" unless it has some notice that a particular location or procedure within a correctional facility creates an unusually dangerous situation (
Leibach v State of New York, 215 AD2d 978). Claimant's burden was to demonstrate by competent evidence that the State provided inadequate supervision to prevent harm that was reasonably foreseeable (Colon v State of New York, 209 AD2d 842, citing to Flaherty v State of New York, 296 NY 342, 346). Here, there was no evidence presented to establish that there were frequent assaults in the NVR that would require different procedures be employed or that Abreu had a history of assaultive behavior in the facility which would require closer supervision of him.
Finally, in an effort to avoid the operation of the general rules that a government agency may not be held liable for injuries resulting from a failure to provide police protection (see,
Mastroianni v County of Suffolk, 91 NY2d 198, see also, Clark v Town of Ticonderoga, 291 AD2d 597) claimant asserts the existence of a "special relationship" between her and the State. The elements of this "special relationship" are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (Cuffy v City of New York, 69 NY2d 255, 260; see, Shinder v State of New York, 62 NY2d 945, 946, see also, Sorichetti v City of New York, 65 NY2d 461, 469).
Here, the Court finds claimant has failed to establish by a preponderance of the credible evidence an assumption, by the State, through promises or action, of an affirmative duty to act on behalf of claimant individually. Claimant failed to establish that a State employee acted on claimant's behalf or made any promises or assurances to claimant. Thus, the State did not assume any affirmative duty upon which claimant might have justifiably relied (see,
Sostre v City of New York Housing Auth., 150 AD2d 766). In fact, the evidence established that claimant sat and talked with Abreu for almost five hours on the date she was assaulted. The evidence also failed to establish that claimant ever told a correction officer she was worried or feared Abreu or that she requested any special protection from an officer. Thus, there was no proof of some form of direct contact between claimant and the State's employees and nothing in the record indicates anything to distinguish claimant from any other visitor to a state facility. In these circumstances, the claim must fail.
Based upon the above analysis, the Court finds that claimant has failed to establish the existence of a special relationship between claimant and the State. Based upon the record, the Court finds that claimant has failed to establish that this cowardly and heinous assault upon claimant by Abreu was proximately caused by any negligence on the part of the defendant. Accordingly, the claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision are now denied. The Chief Clerk is directed to enter judgment accordingly.

October 23, 2002
White Plains, New York

Judge of the Court of Claims