New York State Court of Claims

New York State Court of Claims

KENNEDY v. THE STATE OF NEW YORK, #2002-029-235, Claim No. 98378


Liability only - Court finds State negligent in the discharge of firearms at correctional facility firing range. Bullets traveled over a half mile and struck claimants' house.

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:
Michael J. O'Connor, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: John M. Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for property damage sustained to claimants' home and for the emotional distress suffered by claimants as a result of the State's negligence and reckless discharge of firearms at Fishkill Correctional Facility (hereinafter Fishkill) on July 10, 1996. The trial of this action was bifurcated and this decision deals only with the issue of liability.

The testimony at trial established that on the morning on July 10, 1996, at about 9:30 a.m., Mrs. Kennedy was awakened by a loud noise; that she went from the bedroom to the living room to get her husband; that Mr. and Mrs. Kennedy went to the bedroom and saw broken glass on the bed and floor; that Mr. Kennedy saw a nick in a window blind and when he lifted the blind he noticed that the window was broken. Mr. Kennedy also saw a bullet on the floor of the bedroom. He called the State Police and when they arrived they found a bullet on the driveway and several bullet holes in the side of the house (Exhibits 1-34 are photographs of bullet holes in the house, the broken window and glass on the bed and floor of the bedroom).

The documentary evidence established that on July 10, 1996 members of the Department of Correctional Services Inspector General's Escape/Absconder Unit arrived at the Fishkill firing range for weapon re-qualification between 9:30 and 10:00 a.m. (see Exhibit 44, Pages 6-9, 11 and 12); that a second round of fire commenced at approximately 9:45 a.m., (see Exhibit 42, Page 1); that Mr. Kennedy called the State Police in Poughkeepsie at 9:50 a.m. to report that shots were fired at his residence (see Exhibit 44, Page 22); that according to the lab reports on the spent rounds, the rounds were consistent with having been fired from the guns of the Escape/Absconder Unit members. However, the rounds lacked sufficient microscopic detail for positive identification (see Exhibit 44, Pages 25, 27 and 30); that the distance from the Fishkill firing range to claimants' house is approximately 3,237 feet, a little more than a half-mile (see Exhibit 44, Page 32) and that a bullet from a Glock 9 mm semi-automatic pistol that the State employees were using at the range on July 10, 1996 could travel a maximum range of one and one-half miles (see Page 22, Deposition Transcript of Senior Investigator Vincent Guarino, read into evidence by Claimants' Counsel).

Defendant had a duty to exercise reasonable care under the circumstances when conducting training exercises on premises it owned and controlled (see,
Tarricone v State of New York, 175 AD2d 308, lv denied 78 NY2d 862; Nagawiecki v State of New York, 150 AD2d 147). The care required is commensurate with the known dangers and risks reasonably to be foreseen (Mikula v Duliba, 94 AD2d 503, 506). Thus, when someone engages in a particularly perilous activity, the range of responsibility expands accordingly (see, Palsgraf v Long Is. R.R. Co., 248 NY 339, 344). The use of firearms in a non-emergency, training situation where the bullets may come into contact with the general public reflects a situation where a duty of rigorous and exacting diligence must be imposed.
Although it appears that defendant had used this firing range for weapons training for many years without incident, the Court, nevertheless, finds the State liable for the negligent discharge of the weapons. While the evidence did not establish conclusively that the bullets found in claimants' yard and bedroom came from the guns of State employees, claimants did prove that their injuries were more probably than not caused by the defendant's negligence. Presumably, no other entity had bullets flying around Fishkill that day. Thus, it is entirely reasonable to conclude that the bullets in questions originated from defendant.

A claimant need not exclude all other potential causes but must proffer sufficient credible evidence that a reasonable fact finder might conclude his or her injuries were more probably than not caused by the defendant's negligence (
Natale v Niagara Mohawk Power Corp., 135 AD2d 955).
The Court finds the State to be fully responsible for the subject incident. The Chief Clerk is directed to enter an interlocutory judgment in favor of claimants and against the defendant, State of New York.

Upon filing of this decision, the Court will set the matter down for trial on the issue of damages as soon as practical. Counsel for both sides are hereby directed to contact the Court to establish a conference date regarding outstanding discovery matters with respect to the issue of damages. Counsel are directed to consult with each other regarding potential conference dates and to contact the Court regarding same within 30 days subsequent to receipt of this decision.

October 24, 2002
White Plains, New York

Judge of the Court of Claims