New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-013-523, Claim No. 95892


Claimant's cause of action alleging the State's liability for an assault upon Claimant by a fellow inmate is dismissed, as it could not be established that the State had prior notice of a foreseeable risk to Claimant.

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:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On April 9, 1995, while an inmate at Wyoming Correctional Facility (Wyoming), Claimant was assaulted by an unidentified assailant as he was returning from nighttime recreation with a group of other inmates. He alleges that as a result of this assault he suffered the loss of vision in his right eye. The trial of this claim was bifurcated and this decision is limited to the issue of liability.
The gravamen of his claim centers on the Defendant's alleged failure to provide adequate supervision of the inmates, thus permitting the assault on Claimant to occur. More particularly, the Claimant alleges that the Defendant had prior knowledge that the walkway/roadway at Wyoming on which Claimant was walking was a dangerous place and the scene of many prior assaults. He claims that at the time of the incident there were approximately six correction officers stationed along the walkway used by the east dormitory (dorm) inmates returning to their dorms.[1]
Given the distance that he was required to walk, he alleges that this level of supervision was inadequate to protect any inmate who was proceeding to his dorm.
For convenience and a better understanding of the layout of the facility, I have extensively utilized and referenced Exhibit B, a diagram of the prison showing the location of buildings, walkways, gates, dormitories and watch posts referred to at trial and in this decision.

On the evening of the assault, Claimant had taken part in the evening recreation period in the "bubble," denoted on Exhibit B as the field house.[2]
The field house is located in the westerly part of the facility and Claimant was housed in dorm N located in the easterly portion of the facility. In order to return from the field house to his dorm, Claimant was required to walk in a northerly direction approximately 200 yards and then proceed easterly another 200 yards to the control gate. Continuing in an easterly direction, he then had to walk another 100 yards to reach the observation building where he would then turn in a southeasterly direction to dorm N, which was another 200± yards from the observation building. About midway between the observation building and dorm N is another building denoted as the "rec. building," and which is also referred to as the sergeant's trailer.
Correction Lt. Timothy Graham, called by the Defendant, testified that on April 9,1995, he held the rank of sergeant and was on duty on the evening of the assault. He stated that the field house has the capacity to hold only 150 inmates at one time and that generally one-half of the inmates would participate in "early go back." While he had no specific recollection of that evening he hypothesized that there were 75 inmates in transition along the roadway returning to their respective dorms, approximately one-half of the capacity of the field house.

Lt. Graham also testified that at that time there would have been a minimum of 13 correction officers located at various posts along the walkway. He marked an "x" on Exhibit B at each of the post locations of these officers. In addition, there was a correction officer in the control gate tower, and another officer in the observation building observing the inmates as they proceeded toward him on the walkway.[3]
Besides the officers enumerated above, there was Lt. Graham himself, as well as one or more "roundsmen" who would also be available to observe the inmates as they returned from recreation.
Lt. Graham noted that the evening meal was also being served at the time of the "early go back" and while that activity required a number of additional correction officers to be available in the mess hall, there would still be a minimum of 13 correction officers to cover the inmates returning from the field house.

On the night of the incident, Lt. Graham stated that Correction Officer James Niwinski was stationed in the observation building, or as it was also referred to at trial, the raised platform. The floor of this structure is 6± feet above the ground, approximately 8 feet long and 6 feet wide and enclosed with plexiglass windows which permitted the officer inside to see clearly to the control gate to the west and the area to the south. It was manned when the east dorm inmates were in transit during such times as "early go back."

In addition, Lt. Graham explained that the walkway was illuminated along its entire length by street lights approximately 50 feet apart. The fence also is equipped with motion sensors which, when activated, engage monitors that permit the correction officers to visualize the area of the alert and to respond if necessary. He advised that when the east compound inmates returned from "rec" to their dorms they would pass at least six correction officers between the field house and E dorm, and that the E dorm correction officer would observe them as they walked toward the control gate. The control gate, as previously noted, was manned 16 hours a day with at least one correction officer, and that officer could observe the inmates from the time they turned east on the walkway until they passed the observation platform and turned south. The correction officer in the observation platform had the inmates under watch at least from the control gate, past his station and down to the dorm area. Once the inmates turned south to their dorms, they would pass a minimum of seven other correction officers located at various posts along that route.

As indicated earlier, Lt. Graham was on duty the night of the incident, but he did not have an independent recollection of the event nor what Claimant may have reported to him after the incident, other than what was included in the Unusual Incident Report of April 9, 1995 (Exhibit 14). He stated that he would have contacted the individual correction officers located in the control gate tower as well as the observation platform to determine if any of them had observed anything unusual, and any such information would have been included in his report. Lt. Graham stated that when inmates go to evening rec they are subject to a "pat frisk" which is usually conducted as they enter the field house and would require at least six correction officers to conduct the frisk in a timely fashion.

Claimant offered evidence of 11 prior assaults which occurred on the facility walkway at various times and locations, and Lt. Graham acknowledged that he had investigated some of them. There was no video record of any of these incidents, and he knew of only one occasion that a weapon was found. He stated that, as in Claimant's case, once an assault involving a weapon is reported, a search of the immediate area is conducted. In only one of the prior assaults was a weapon found. In the claim at bar, no weapon was located even though a search was presumably conducted.

According to Lt. Graham it would have been impossible to search each of the 75 or so inmates who participated in the "early go back" since it would have required more manpower than available in the vicinity at the time of the attack. He conceded that when inmates are returning from an activity, and they are in or form groups, the correction officers on duty must be "extra special" vigilant, but cannot prevent an assault, only react to one after it occurs. While there are daily searches conducted within the facility of inmates and their cells or dorm areas, it is not possible to uncover all the homemade weapons that the inmates may have secreted. He further acknowledged that three years prior to this incident there had been gang problems at the facility, particularly involving the "Latin Kings" gang, but those problems had been addressed and rectified.

CO James Niwinski testified that he was on duty the night of this assault and was in the observation platform observing the inmates as they returned from the field house on "early go back." He recalled seeing a group of inmates walking between the gate control and his post scatter and then come together again. He did not see any fighting but he walked out of the platform to more closely observe these inmates as they approached and walked by him. He did not note anything unusual about their activity or appearances. His responsibility was to follow the entire group once they passed his station down the walkway to the dorms. He first became aware of this incident when he was called to provide escort for Claimant to the sergeant's trailer so the incident could be reported and he could be taken to the infirmary for treatment. CO Niwinski stated he learned that the assault occurred between the observation platform and gate control tower and more than likely was the reason for the brief scattering of the inmates, which he had observed from his assigned post.

Claimant presented no evidence, nor does he argue, that he was known to be at risk of assault or attack. Since the assailant was never identified, it cannot be seriously contended by Claimant that the Defendant was on notice of any threats or propensity for assault or violence of other inmates directly against him. The scope of Defendant's duty of care to its inmates is to protect them from the risks of harm which are reasonably foreseeable (
Sanchez v State of New York, 99 NY2d 247).
Some have argued that the decision in
Sanchez v State of New York, supra, has clarified the law and applied an additional new standard, to wit, whether the Defendant knew or reasonably should have known that an inmate claimant was at risk of harm. My interpretation is somewhat more narrow.[4]
Sanchez was an inmate-on-inmate assault case where a claim of negligent supervision was dismissed on summary judgment on the ground that the attack was unforeseeable as a matter of law, and the Court of Appeals merely concluded that the record raised a triable issue as to foreseeability. At least in that case the claimant provided an unrefuted affidavit of an expert penologist who opined that the State's supervision of Sanchez on the night of the assault violated generally accepted penological standards of care, and the Court of Appeals held that the State, without providing any evidence to refute such assertions, was not entitled to summary judgment dismissing the case. Here of course, after the submission of all the proof, Claimant presented no evidence from an expert penologist, and thus no expert opinion which the State might attempt to refute.

The Sanchez majority observed it could not conclude as a matter of law that the injury was not reasonably foreseeable and that:

[T]his record by expert affidavit identifies a risk of assault... and the existence of such a risk is uncontroverted....

Here, there is uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack... and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand.

(Sanchez v State of New York, 99 NY2d 247, supra at 255.)

Even the dissent in Sanchez recognized that perhaps the three traditional scenarios that have generally been relied upon concerning foreseeability have been too narrowly defined and observed that:

[T]he list is incomplete; other types of proof would also raise a question of fact. For example, an inmate might establish foreseeability by offering proof that there were a number of prior attacks in a certain location in a facility, indicating an unreasonable risk of harm particular to that place, or by demonstrating that the authorities received threats or were aware – or should have been aware – of other indicia of unrest prior to a certain event or program which ultimately culminated in violence.

(Sanchez v State of New York, 99 NY2d 247, supra [Graffeo, J., dissenting at 261-262].)
Claimant has impliedly attempted to fit into these broader scenarios by offering into evidence the 11 Unusual Incident Reports in support of his allegation that the assault on his person was a reasonably foreseeable event. I admitted them, but with the caveat that I would give them the probative weight I deemed each warranted.

After careful review, I find that Claimant has failed to show that even one of these incidents was similar to the assault upon him whether comparing time or location or circumstance. Therefore I have given them no weight or consideration in this case, and I find that I cannot draw the inference Claimant presumably would wish me to, to wit, that these assaults, which occurred during the three-year period prior to the assault upon him, demonstrate that it was foreseeable to Defendant that an assault such as the one in question might occur and that it should have implemented measures to prevent it from occurring to him. This implication would, in my opinion, place upon the Defendant the burden of being an insurer of the safety of all inmates, a standard which has been specifically rejected (
Sanchez v State of New York, supra at 253).
No evidence was presented that distinguishes this unfortunate assault from those present every day at any correctional facility. Unlike Sanchez, Claimant chose not to call his own expert to testify to the manner by which the Defendant purportedly failed in its duty to provide proper supervision so as to prevent this assault. While he points to 9 NYCRR 7003.2
et seq., to support his contention regarding the supervision in place on the night of the assault, I conclude that it has no applicability in this case. As the Court of Appeals noted in Sanchez (99 NY2d 247, 251, n 2 supra), the provisions of that section apply to county jails and penitentiaries and not State correctional facilities. The Court considered them in its analysis of foreseeability based on the record before it on that summary judgment motion. Here, however, I have the benefit of a full trial record encompassing the appearances of various witnesses as well as the deposition testimony of those unable to attend. In addition, I note that section 7003.4(b) of 9 NYCRR allows the administration of these facilities to set up regulations which permits "constant supervision," a less stringent level than "active supervision," so even if these regulations did apply to State facilities, I would not reach a conclusion, based on this record, that the Defendant breached a duty it owed to Claimant.
[T]he State's duty to prisoners... does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The 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, supra at 256.)
I found persuasive Lt. Graham's testimony relating to the number of correction officers on duty that evening and the posts where they were stationed and the adequacy of such staffing. This unfortunate incident could have occurred even if there had been "active supervision," as it is clear that this was a spontaneous assault, occurring in an instant with little time to react and no time to intervene. I do not minimize the seriousness and consequence of this assault but cannot find any persuasive or probative evidence in this record that establishes the Defendant's negligence. There was much dispute before me on whether Lt. Graham was qualified as an expert witness capable of rendering opinion testimony. His testimony certainly was persuasive relative to his extensive experience as a correction officer in various capacities and levels of responsibility, particularly at Wyoming Correctional Facility.

More telling to me than the debate over his qualifications as an expert witness, and a determinative factor that distinguishes the trial of this claim from the summary judgment motion in Sanchez, was the absence of any expert witness testifying on Claimant's behalf. To be sure, the evidence before me reveals no culpable conduct by the Claimant, and it appears in all respects that he was an innocent victim. But before that guiltlessness can be transformed into culpability by the State, proof is necessary. Claimant's arguments that somehow no expert was required to establish culpable conduct here are rejected. An expert would have been needed to opine that the level of staffing and degree of surveillance was negligent, and then, significantly, that such negligence was a proximate cause of the injuries sustained.

There is no credible evidence that this assault was foreseeable, and thus no breach of any duty owed by the Defendant to the Claimant. Accordingly, the claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon, are now denied.


December 31, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]At Wyoming, recreation is allowed at separate times for the east and west dorm inmates.
  2. [2]The terms "bubble" and field house both refer to the same building and were used somewhat interchangeably at trial. I will do so as well in this decision.
  3. [3]The terms "walkway" and "roadway" were also used interchangeably at trial but I will primarily refer to this area as the walkway. The walkway was approximately 22 feet wide and could be used by vehicular traffic.
  4. [4]The Fourth Department has implied that the standards are now broader (Gangler v State of New York, 302 AD2d 964, 965).