New York State Court of Claims

New York State Court of Claims

HEYLIGER v. THE STATE OF NEW YORK, #2003-028-004, Claim No. 91867


Negligence claim flowing from inmate on inmate assault dismissed. Claimant offered only his own testimony in support of claim and failed to establish either actual or constructive notice of a foreseeable risk of harm.

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:
Defendant's attorney:
BY: Elyse J. Angelico, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

This Claim alleges that Claimant, Jason Heyliger (Claimant), suffered personal injuries when he was assaulted on October 27, 1993 and October 30, 1993 at Sing Sing Correctional Facility (Sing Sing). Claimant, an inmate at the time of the accident, alleges the Defendant was negligent[1]
in failing to prevent the alleged assaults. The Court conducted a unified trial[2] of the Claim.
The Claimant testified that at the time of the incidents, he was living in A Block, K Gallery, Cell Unit 263 at Sing Sing. On October 27, Claimant left the gym on early "go back"[3]
to perform his duty as sick call clerk, i.e., typing of the sick call list for the next morning. As he left the gym and proceeded upstairs, inmate Tim Nesmith (Nesmith) who was ahead of Claimant on the stairs, turned around and "snatched my chain and nicked my ear." As Nesmith "took off running," Inmate Charles Bryant (Bryant) "blocked me from chasing Nesmith." Claimant stated that the incident ended when Correction Officer Dow, who was stationed at the gym door, told us to keep moving. No words were spoken during the incident. Upon returning to his housing unit, Claimant testified that the Correction Officer (CO) on duty (a/k/a gallery officer)[4] asked what happened and directed Claimant to "lock-in." On cross-examination, Claimant testified he reported "the chain snatch" to the gallery officer. Claimant maintained that no one got back to him, although he acknowledged that despite being aware of the procedures for doing so, he did not put anything in writing, nor did he follow up on his complaint. Claimant further testified that he did not seek medical attention "cause it wasn't that big of a cut."
On October 30, 1993, Claimant testified that at approximately 6:00 o'clock in the evening he was on his way to recreation and was "near the phone area" when he was hit from behind and pushed to the side of the cells. The blow knocked Claimant to the ground and rendered him temporarily unconscious. Claimant testified that he "came to" when he hit the floor. At that moment, Claimant described the scene as follows: Nesmith was on me by my legs stabbing me with "an ice pick," Bryant was "trying to stomp me on my head and stab me with an ice pick" and inmate Wayne Johnson cut me "from the back of my head with a razor." Claimant stated he struggled to protect himself and fought back by kicking and swinging at his assailants. Claimant testified that when he regained his feet he saw "CO's standing near their office" and since none of them were moving "I ran to M-North and sat in front of the Spanish TV." Claimant next testified the Correction Officers saw him and brought him to the medical staff for treatment. According to Claimant, the initial blow was struck within three feet of Correction Officer Cannonier, who was seated at the "phone desk." On cross-examination, Claimant testified the attack "lasted maybe 10-15 minutes."

Claimant suffered multiple stab wounds in the October 30th attack accompanied by pain. In addition, Claimant testified his injuries prevent him from being certified as a sign language interpreter, as the continuing pain in his hands has slowed the speed with which he signs to unacceptable levels.

Correction Officer John Hyde, a three year veteran of the Department of Correctional Services (DOCS) at the time of the attack, was working at Sing Sing on October 30, 1993 as the first officer on H & M Gallery. He testified on behalf of the Defendant that there were three additional correction officers on duty at the time of the incident. CO Hyde stated that as he exited the office and was locking the door he saw the combatants coming "through the gate" - three inmates were going after the Claimant and the Claimant was swinging back. He estimated the distance from himself to the inmates to be "10 feet." He "pulled the alarm" and he and Cannonier, who was the phone officer, responded. CO Hyde yelled "break it up" and the assailants jumped up and started running toward the gym. Nesmith was apprehended by CO Cannonier and the "red dot team" captured Bryant. CO Hyde stated that he did not see the fight start but that it was "over in a minute." CO Hyde testified he and another officer went to look for Claimant and "found him at the Spanish TV."

It is well settled that having "assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates. That duty does not, however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable"
(Sanchez v State of New York, 99 NY2d 247 [citations omitted]). The Court of Appeals in Sanchez, reading recent Appellate Division decisions to have imposed "[T]he strict requirement of specific knowledge for foreseeability" for inmate on inmate assault cases (Sanchez, 99 NY2d at 254), rejected such a bright-line test and reaffirmed "the traditional standard of reasonableness;" that is, "reasonable care under the circumstances" (id. [citations omitted]). The Court of Appeals was unanimous in reiterating that foreseeability encompasses both actual and constructive notice (id.). [5]
This Court does not face the issue found in
Sanchez and which divided that Court; namely, whether Claimant had raised a question of fact sufficient to meet his burden to stave off summary judgment. Rather, this Court must determine, following trial, whether Claimant has established that the Defendant had actual or constructive notice of an attack upon an inmate, that is, whether, the inmate on inmate assaults were reasonably foreseeable (see Gangler v State of New York, __ AD2d__, 755 NYS2d 174). As the Court of Appeals was clear to confirm "[T]he mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, 99 NY2d 247, 256).
The Court finds that Claimant offered no evidence that either incident was preceded by any outward manifestation of what was to come which could have spurred the State to action (see
Williams v State of New York, Ct Cl, Collins, J., Claim No. 100059 [unpublished decision]), nor was any policy or procedure implicated as exposing the Claimant to a foreseeable risk (see i.e. Blake v State of New York, 259 AD2d 878 [releasing inmate while handcuffed into recreation yard]). Nor was there any suggestion that Claimant was at risk or that his attackers had known violent propensities. As such, Claimant cannot establish that the State was negligent with regard to the first incident on October 27, 1993. Moreover, that incident, although now alleged to be an assault, is more appropriately characterized as a theft. This conclusion is buttressed by Claimant's testimony that he reported a "chain snatch" and Claimant's additional testimony that after stealing his chain, the perpetrators made him an offer, which Claimant refused, to sell the chain back to Claimant for $200.00.
Turning to the assault on October 30, 1993, Claimant puts forth two avenues for the Defendant's negligence - the harm to him was reasonably foreseeable based upon the October 27 incident, and the Correction Officers present failed to promptly intervene to protect him once the assault was underway. The Court rejects both theories posited by Claimant. As to the latter theory of the case, the Court credits the testimony of CO Hyde who testified that he and CO Cannonier responded to the altercation[6]
. As he was moving towards the fight, CO Hyde testified that he yelled "break it up" at which point the combatants scattered ending the altercation. The Court does not credit Claimant's testimony that the Correction Officers "did nothing" to prevent or end the attack or that the attack lasted up to "10 minutes." As to the former theory of the case, Claimant admitted that although knowledgeable of the procedures, he took no action to file a grievance or seek medical attention and he testified he did not seek voluntary protection because he didn't think "there'd be any problems." Assuming arguendo Claimant did notify a Correction Officer of the October 27, 1993 incident when he returned to his cell, given Claimant's own conclusions about the incident, the Court finds such report would not have placed the State on either actual or constructive notice that a future attack was planned or contemplated.
Claimant offered only his own testimony in support of his Claim and in doing so has failed to proffer any credible evidence that would establish, let alone suggest, that the Defendant had either actual or constructive notice of the harm that befell Claimant on either date.

Accordingly, and after having observed the witnesses' demeanor while testifying, the Court finds the Claimant has failed to establish by a preponderance of the credible evidence that either incident was reasonably foreseeable by the State and therefore, the State is not liable for Claimant's injuries. Claim No. 91867 shall be and hereby is dismissed.

Let judgment be entered accordingly.

June 12, 2003
Albany, New York

Judge of the Court of Claims

[1] The scope of the Claim was limited to a negligence cause of action upon the resolution of Claimant's application for permission to late file (see Heyliger v State of New York , Claim No.: None, Motion No.: M-50470, Mega, J., April 11, 1995).
[2] On December 13, 2002, trial of this action was commenced using a video link. Due to technical difficulties in maintaining the video link, the Court adjourned the trial to December 16, 2002 at Sing Sing Correctional Facility.
[3] Unless otherwise indicated all quotations are taken from the Court's notes or the audiotapes of the proceeding.
[4] Claimant testified that he did not know who this Correction Officer was, suggesting that he was a "relief officer".
[5]This Court does not view Sanchez as an expansion of the test of forseeability in inmate assault cases (see Williams v State of New York, Ct Cl, Claim No. 100059, Collins, J., filed May 13, 2003). Rather, through Sanchez, the Court of Appeals is reorienting this Court, as well as the various Appellate Divisions, with the Palsgraf doctrine of duty as defined by reasonably forseeable hazards and further, that forseeability is determined not just by actual notice of a hazard, but by constructive notice as well.
[6] The Court also credits CO Hyde's testimony that in the year he had been assigned to M Gallery this was the only problem of its kind he encountered.