New York State Court of Claims

New York State Court of Claims

VIDAL v. THE STATE OF NEW YORK, #2004-016-070, Claim No. 104099


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):

Alan C. Marin
Claimant's attorney:
Joseph Vidal, pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 12, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Joseph Vidal, which was held at Sullivan Correctional Facility. In his claim, Mr. Vidal alleges that because of defendant's negligence, he was assaulted by another Sullivan inmate on April 18, 2000.[1]
As set forth more fully below, claimant essentially argues that the correction officers who responded to the incident did not act quickly enough. Claimant testified on his own behalf and called correction officers Everett Tallman, Melvin Gorr and Bruce Huggins as well as Sergeant Joseph Maxwell. He also called psychiatrist Salil Kathpalia and psychologist Ken Wosneski, who testified as to the psychiatric treatment he received following the incident.
* * *
Vidal's version of the events of April 18, 2000 was as follows. While on the upper tier[2]
of his B South cell block, he was attacked by inmate Carlos Ochoa, who began slashing at him. Claimant grabbed a nearby broom and struck at Ochoa while backing away. Ochoa knocked Vidal down and Vidal began backing down the stairs from the upper to lower tier of the block. As claimant was going down the stairs, he "[ran] into gray pants" worn by correction officer Gorr and meanwhile, correction officer Tallman was at the bottom of the stairs. Claimant went around Tallman while on his back and Ochoa followed, also going around Tallman and continuing to chase claimant across the lower tier.
According to Vidal, "[a]t no moment was CO [Gorr] at the bottom of the stairs to Tallman's left and at no moment did I slide into the pit area. I went across into the gallery. Inmate Ochoa continued after me, and I was pushing him away with my legs, and I was telling him, Officer [Gorr], to get him off me . . . and he was just saying, break it up, break it up . . . and somehow I managed to get up. I tried to run down the stairs that lead to the pit area, and that's when Inmate Ochoa again slashed me in my back. Officer Tallman, all the time, he was by that staircase. He didn't move from there, and when I reached the bottom of the pit area, that's when the response team came in. Then they took . . . Ochoa, escorted him to his cell and I was taken to the clinic." He added that as he was coming down the stairs to the lower tier, "these officers didn't do [anything]. They [saw] I was bleeding . . . and they didn't do [anything]."

On his direct testimony, claimant estimated the timing of the incident as follows: he was up on the upper tier for 30 to 50 seconds, it then took him 10 seconds to come down the stairs, and he was on the lower tier with Ochoa on top of him for 50 seconds to one minute. His testimony on cross varied slightly - - he said he was on the upper tier for 45 seconds and on the lower tier for one to two minutes. Claimant maintained that the altercation started at 12:30 p.m. and he arrived at the facility medical clinic at 12:35, "[s]o there's five minutes there . . ."

During the incident, claimant was cut on his face and back, and at trial, the Court observed an approximately three-inch scar on the left side of his jaw and a six- to eight-inch scar on his back.

Vidal testified that every time he looks in the mirror, he relives the incident and "[e]very day I live through this and have this discomfort . . . The facial and the back scars . . . this is something I live with every day to this day . . ."
* * *
The correction officers who witnessed the altercation essentially verified claimant's version of events
vis-à-vis inmate Ochoa, but disagreed with claimant as to their intervention.
Correction Officer Everett Tallman testified as follows. When he first saw the altercation, claimant was on the upper tier, holding a broomstick and backing up toward the stairs with Ochoa coming toward him. As soon as Tallman became aware of the incident, he made a call on his radio and "pulled his pin." He also started going up the stairs to try to stop the fight, but at that point, Vidal and Ochoa were coming down, so he stood at the bottom of the stairs as claimant came down, chased by Ochoa. Vidal went around Tallman and Tallman put his arm up for Ochoa to stop, but Ochoa went around him and continued to follow Vidal.

On the lower level, claimant "was still backpedaling to get away . . . backpedaling on [his] back across the gallery" as Ochoa continued to make slashing motions. The fight stopped when Tallman and Gorr "got between [the] two [inmates] and it was broken up. [Claimant] went down into the pit and Officer Gorr took Inmate [Ochoa], and it was over. The response team showed up and it was pretty much over then." According to Tallman, the entire incident, from the time he first observed it to when it was over, took about 45 seconds.

Tallman testified that he first noticed blood on Vidal's face as Vidal came down the stairs. He also testified that he never observed a weapon other than the broom claimant had; no other weapon was recovered after the fight.

Finally, Tallman said he did not have - - and was not required to carry - - a baton at the time of the incident. Asked what he had been trained to do in a situation like this, Tallman said "[t]o pull the pin on [my] radio, which I did, to call the response team to show up and to try to stop the situation at hand."
* * *
Correction Officer Melvin Gorr recalled the incident as follows. At the time he became aware of the altercation, he was standing in the pit area and immediately ran up to the lower tier. He saw Ochoa knock Vidal down and "by the time I got up to the stairs, Inmate Vidal was sliding down the stairs on his back." At the time, Vidal was bleeding from his face. Gorr went to the foot of the stairs and tried to stop Ochoa as he came to the bottom of the stairs. At the time, Tallman was on the second step.

While Vidal was on the floor, Ochoa was making slashing motions with his hands. Gorr gave direct orders for Ochoa to stop. Meanwhile, Vidal was still on his back, kicking at Ochoa. The orders were to "[b]oth inmates, but more directly to Inmate [Ochoa] trying to get him [to] back off." Ochoa did not comply with Gorr's orders at first and Vidal slid on his back over and into the pit area. At that point, Vidal managed to get up off the floor, and Gorr and Tallman were able to get between Vidal and Ochoa in the pit: " . . . when there was a little gap in between them enough for myself and Officer Tallman to get in between them safely for ourselves, we did so. And that's when the incident stopped."

Gorr, who prepared an incident report as to the altercation, said he did not see a weapon in Ochoa's hands.
* * *
Sergeant Joseph Maxwell was an "ID officer" on April 18, 2000, and at the time of the incident, was in a hallway on his way to the "ID room"; he learned of the incident over his radio. Maxwell explained that another officer was assigned to the control room, adding that while he came up "from ID" to help that officer with "feedup," the control room is "a one-officer post. I come up from ID to assist that officer during feedup." Asked how long it took him to come from the ID room hallway back to the B-South housing unit after the radio call, he said "no more than three, four minutes, but I don't remember."

By the time Maxwell arrived at the housing unit, the altercation was already broken up, and Maxwell then took photographs of claimant's injuries and the "blood trail." He also did some interviewing to "try to find out what happened." Maxwell added that aside from the broom used by Vidal, no other weapon was located following the incident.
* * *
Correction officer Bruce Huggins testified as follows. He was in the B housing unit control booth when he became aware of the incident involving claimant and Ochoa. His reaction was to "call a code." He added that "I really can't recollect exactly who was where between the two [inmates]. I saw the altercation on the top tier, escalated down to the main floor in the bottom. At that time, I was basically over there just to let the response team in, which was immediate, into the unit. I believe by the time the response team got in there, the officers on the unit had broken it up and had it under control." He estimated the time from when he first became aware of the altercation to the time the response team came as 30 seconds. He also estimated the time it takes to walk from the B South housing unit to the medical clinic as two minutes.
* * *
Sanchez v State of New York, 99 NY2d 247, 252-53, 754 NYS2d 621, 624 (2002) (citations omitted), the Court of Appeals stated that:
A defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff . . . Regardless of the status of the plaintiff, the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived . . . These fundamental propositions apply with equal force to negligence claims against the State for inmate injuries sustained in assaults occurring in correctional facilities. 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.

The Court went on to find as too restrictive a "strict requirement of specific knowledge for foreseeability," stating that such a "bright-line test . . . redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability . . . What the State actually knew plainly falls within the ambit of foreseeability. But the Appellate Division actual notice test precludes additional consideration of the State's constructive notice – what the State reasonably should have known – for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks . . ." 99 NY2d at 254, 754 NYS2d at 625.
In the instant case, claimant presented no evidence that defendant had actual notice,
e.g., that Ochoa was on his enemies list, that he was a known vulnerable inmate, or that Ochoa was a known aggressor. Nor did claimant present any evidence of constructive notice.
Vidal's case thus rests on his assertion that the correction officers who responded to the altercation did not respond quickly enough. In that regard, see,
e.g., Schittino v State of New York, 262 AD2d 824, 692 NYS2d 760 (3d Dept 1999). The time frame in this case involved, according to all witnesses, a matter of minutes. Claimant's own estimate of five minutes from the start of the attack to the time he arrived at the medical clinic included up to 50 seconds on the upper tier as well as the time to walk to the facility medical clinic which, he did not dispute, took two minutes. Nor did claimant dispute the testimony of the responding officers that they became aware of the incident just before claimant and Ochoa began moving down the stairs. Thus, even accepting claimant's testimony as to timing, there were just over two minutes from the time claimant and Ochoa began coming down the stairs to the time the fight was broken up. Moreover, as set forth above, officers Tallman and Huggins estimated the time from their first awareness of the altercation to the time it was broken up as 30 and 45 seconds, respectively.
In sum, I find that claimant has not proved that the responding officers failed to timely or appropriately respond to the altercation. Accordingly, claimant has failed to prove defendant's negligence by a preponderance of the evidence and accordingly, claim no. 104099 is dismissed.[3]


November 12, 2004
New York, New York

Judge of the Court of Claims

  1. [1]Such inmate's name is Carlos Ochoa. Ochoa's last name is incorrectly spelled as Otrillo in the trial transcript. In this Decision, all transcript references to the name Otrillo have been changed to Ochoa.
  2. [2]The cell block contains an upper tier, a set of stairs leading down to a lower tier and a further set of stairs leading down to a "pit" area.
  3. [3]As set forth above, claimant offered the testimony of psychiatrist Salil Kathpalia and psychologist Ken Wosneski as to the psychiatric treatment he received following the incident. However, since no liability on the part of the State was found in this Decision, such testimony, which relates solely to claimant's damages, is not relevant and will not be summarized herein.