New York State Court of Claims

New York State Court of Claims

WORTHY v. THE STATE OF NEW YORK, #2004-009-128, Claim No. 96821


Synopsis


Case Information

UID:
2004-009-128
Claimant(s):
CARLEEN WORTHY, as Administratrix of the Goods, Chattels and Credits of ERIC STEPHENS, Deceased
Claimant short name:
WORTHY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96821
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
GOLDSTEIN & GOLDSTEIN, P.C.
BY: Mark I. Goldstein, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 15, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
On August 17, 1995, Eric Stephens, an inmate at Auburn Correctional Facility, was fatally stabbed during an altercation with another inmate. Claimant, as the Administratrix of his estate, has brought this claim alleging negligence against the State in failing to provide reasonable supervision, as well as failing to timely intervene once the altercation began. The trial of this claim was bifurcated, and this decision addresses solely the issue of liability.

Miles West, an inmate at Auburn Correctional Facility, was an eyewitness to the altercation, and testified on behalf of claimant. He testified that in the early evening on the day of the incident, he was present on the second floor of the gym at Auburn Correctional Facility. A group of inmates were playing basketball, and since it was a hot night, the fire exits had been opened to increase ventilation. Mr. West testified that he was approximately 25 to 30 feet away from the inmates who were playing basketball when he observed decedent approach another inmate shortly before the incident occurred. According to inmate West, decedent and the other inmate talked to each other for a short time, and after that they started fighting. Each inmate had a shank and they attempted to stab the other. During the altercation, inmate West saw decedent being stabbed by this other inmate. Inmate West further testified that he had also brought a shank with him to the gym that evening because he "knew"[1]
that there was going to be an incident in the gym that evening. He added that "everybody knew" that there was going to be a fight that night. He testified that he did not notify any member of the staff at the facility that such an incident was going to occur, nor did he believe that staff had been notified by any other inmate. He testified that the entire altercation took approximately five minutes from the time when the inmates started to stab each other.
Following an investigation into this incident, Anthony Jennings was identified as the inmate who stabbed decedent during this altercation. Inmate Jennings, when questioned, described the events in a two page statement which was admitted into evidence at trial (see Claimant's Exhibit 10). In this document, inmate Jennings stated that after some conversation between the two men, they both pulled out shanks, and confronted each other when they were approximately one foot apart. Decedent also pulled out a bottle, but he was not able to open it. Inmate Jennings stated that he then moved towards decedent and they both stabbed each other. Inmate Jennings then stated that as they continued to struggle decedent grabbed his shirt and he grabbed decedent by the hair. As they were struggling and swinging their shanks at each other, inmate Jennings then stabbed decedent. As they continued to struggle, both men lost their balance and started to fall. Inmate Jennings then left the gym area before any correction officers arrived.

In his statement, Mr. Jennings did not indicate how much time transpired during this incident. Inmate West, as well as inmate Billy Berryman (see Deposition of Billy Berryman, admitted into evidence as Defendant's Exhibit F), both testified that the incident took approximately five minutes from the time that decedent was first stabbed until he fell to the ground.

Inmate West also testified that during the entire incident, Correction Officer Kevin Walsh was having a conversation with another officer inside the gym office, and had his back toward the gym area, and therefore did not see any of the events which transpired. He further testified that Officer Walsh did not respond when he told him "man down, man down" and did not take any action until another inmate notified him of the incident.

Based on this testimony, claimant contends that the State failed to take reasonable measures to protect decedent from the foreseeable risk of attack by another inmate. Specifically, claimant contends that Correction Officer Walsh was negligent in failing to perform his required duties of supervising the inmates in the gym area by engaging in conversation with another correction officer, and, in effect, failing to pay any attention whatsoever to the inmates. Furthermore, claimant contends that the State failed to follow established procedures to search for and locate illegal weapons, thus permitting this altercation to occur, resulting in the severe injuries suffered by inmate Stephens and leading to his death. Claimant also contends that this lack of supervision and observation led to a delayed response by the correction officers to this incident.

In response to these allegations, Correction Officers Kevin Walsh and John Schlaggel, both of whom were on duty at the gym area on the second floor at the time of this incident, testified for defendant. Correction Officer Walsh testified that at the time of the assault on decedent, he was a gym floor officer assigned to the second floor of the gym. His duties required him to open up the locker room and the gym on the second floor, to then patrol the gym floor and adjacent areas, and to provide security and observation. He testified that he normally remained posted at the entranceway to the second floor gym so that he could observe inmates as they entered the gym. This posting area is near a window which looks inside to the officers' station.

On the night in question, Officer Walsh testified that he opened the gym at approximately seven o'clock p.m., after performing his usual security checks. He testified that there were approximately five to seven inmates shooting baskets on the gym floor, when one of the inmates asked him for permission to open the exits to increase ventilation due to the heat. After he opened the last set of doors, Officer Walsh testified that he walked through a group of inmates who were playing basketball on his way back to his post at the entranceway. Although some inmates were talking with each other, there was no loud conversation and no indication that a fight might be brewing.

As he returned to his post at the entranceway, he testified that he then spoke with Officer Schlaggel, who was posted in the officer station. He spoke with Officer Schlaggel briefly regarding keys which were needed to turn on the showers, and it was at this time that an inmate approached him and told him that another inmate needed help. At that point, he noticed inmate Stephens on the floor, and ran immediately to him. He observed that the inmate was bleeding profusely and he used his radio to call for assistance. He testified that the total elapsed time from the point when he passed through the inmates on his way back to his post, to the time that he was notified that an inmate had been injured, totaled approximately 40 seconds. He further testified that once he radioed for assistance, other correction officers immediately responded and rushed decedent to Auburn Memorial Hospital for medical attention.

With regard to his "conversation" with Officer Schlaggel, Officer Walsh testified that he did not have any lengthy discussion with him, but that it was a very brief conversation in which Officer Schlaggel asked Officer Walsh for the keys to open the showers.

Officer Walsh also testified as to the procedures in place at that time in the facility concerning inmates searches. He testified that there were no standing metal detectors leading to the gym at the time of this incident, but that hand-held metal detectors were available. He also testified that pat frisking could be done either with or without the hand-held metal detectors on a random basis at the discretion of the officers. Because of the large population of inmates, he testified that pat frisking of every inmate is impractical, and therefore such pat frisks must be done on a random basis. He did testify, however, that on the evening of claimant's assault, he did not pat frisk any of the inmates entering the gym, but that it was his understanding that inmates are randomly pat frisked as they leave their housing unit.

Correction Officer Schlaggel testified that at the time of this incident, he was assigned to the gym locker room on the second floor at Auburn Correctional Facility. At the time of the incident, Officer Schlaggel was seated at a desk in the gym office, facing the locker room, away from the gym floor. On that date, he testified that "rec" was called at seven o'clock p.m. Very shortly thereafter, he testified that Officer Walsh came to the window of the gym office, and was there approximately ten seconds when Officer Schlaggel asked him for the keys to the showers. At that point, he heard an inmate say something to Officer Walsh, and he then saw Officer Walsh run onto the gym floor. He realized at that point that something was wrong, so he then got up from his desk and ran over to the front of the gym entrance, when he realized that an inmate had been stabbed. He then attempted to secure the area to prevent any inmates from leaving the gym area.

Correction Officer Roby Welch testified that he responded to the incident after receiving a call that an inmate had been stabbed. They put inmate Stephens on a stretcher and ran with him to the first aid area, since it was apparent that he had been seriously injured. He testified that this took less than a couple of minutes, and that within one or two minutes thereafter nurses and the ambulance had arrived. After treatment at the facility for a very short time, the inmate was placed in the ambulance and taken to the Emergency Room at Auburn Memorial Hospital, where he unfortunately passed away.

It is well settled that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (
Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Blake v State of New York, 259 AD2d 878). The State, however, is not an insurer of the safety of inmates, and the fact that an assault occurred does not, in and of itself, give rise to an inference of negligence (Sebastiano v State of New York, 112 AD2d 562; Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). Recently, the Court of Appeals expanded the test of foreseeability in inmate assault cases to encompass circumstances which should reasonably be perceived, as well as those actually known to the State (Sanchez v State of New York, 99 NY2d 247).
In this case, however, no evidence was introduced at trial to establish that the State had either actual or constructive notice of any impending attack upon decedent by inmate Jennings. While there was some indication that decedent and inmate Jennings might be members of rival groups, there was no notice that the two were adversaries. Even though inmate West testified that inmates were well aware that a fight was to occur that evening, and that both decedent and inmate Jennings came prepared for a such a possibility by possessing shanks, there was no indication that this information had been passed along to any correction officers. Furthermore, Correction Officer Walsh's testimony that he walked through the group of inmates on the gym floor immediately prior to the fight established that the attack came about suddenly, providing the State with no opportunity to prevent it. Without any actual or constructive notice of an impending attack, the Court cannot find that the incident involving decedent and inmate Jennings was reasonably foreseeable.

Even though there was no actual or constructive notice of this particular assault against decedent, however, claimant contends that the State was negligent in failing to provide reasonable supervision, generally, thereby increasing the risks of attack to the "class of inmates" of which decedent was a member (see,
Sanchez v State of New York, supra at 254). Specifically, claimant contends that Correction Officer Walsh was not performing his required duties at the time this assault occurred because he was engrossed in conversation with Correction Officer Schlaggel, and he admittedly had not frisked any of the inmates entering the gym that evening.
First of all, it is well settled that the mere fact that a correction officer is not present at the precise time and place that an assault occurs does not, in and of itself, give rise to an inference of negligence without a showing that the officer had notice of a foreseeable dangerous situation (
Colon v State of New York, 209 AD2d 842). Additionally, it has long been held that an unprovoked, unexplained attack by a fellow inmate with whom claimant had little or no contact does not support a finding of negligence even where the attack involves the use of a handmade weapon (see, Stanley v State of New York, 239 AD2d 700; Leibach v State of New York, 215 AD2d 978; Padgett v State of New York, 163 AD2d 914, supra).
Furthermore, contrary to the testimony of inmate West, both Correction Officer Schlaggel and Correction Officer Walsh testified that they had a very brief conversation regarding the transfer of keys, a required part of their respective job duties. Therefore, even though Correction Officer Walsh did not actually see the altercation occur, his failure to do so cannot be considered negligence.

Additionally, the description of this altercation given by inmate West, as well as the deposition testimony of inmate Berryman, both suggest that the entire incident took place in far less time than both inmates estimated. The Court simply does not credit the testimony of inmate West that this attack lasted up to five minutes without any action or involvement by correction officers. Even though Correction Officer Walsh admittedly had not frisked any of the inmates as they entered the gym that evening, testimony from all witnesses established that there were only five to seven inmates at the gym at the time of the assault. Testimony also established that it was impractical to pat and frisk each and every inmate during movements of the inmate population, and there was no testimony to establish that Correction Officer Walsh's failure to frisk the inmates entering the gym was unreasonable, or contrary to facility procedures and/or regulations.

Finally, from the evidence presented at trial, the Court finds that when the assault occurred, correction officers acted promptly to intervene, and provided medical assistance in a timely and appropriate manner.

Accordingly, even though this altercation resulted in the unfortunate death of inmate Stephens, the Court finds that the State cannot be held liable for this attack. As stated in
Sanchez, "[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, supra at 256). To find the State liable in the factual context presented in this case would, in effect, hold the State strictly liable for each and every assault instigated by an inmate confined in a maximum security correctional facility.
Therefore, this claim must be dismissed.

Any motions not heretofore ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


March 15, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims





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