New York State Court of Claims

New York State Court of Claims

IRVING v. THE STATE OF NEW YORK, et al., #2004-016-079, Claim No. 105298


Claim arising from inmate on inmate assault was dismissed after trial.

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:
Kenya A. Irving, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michael Danaher, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 9, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Kenya A. Irving, which was tried at Sullivan Correctional Facility, where Mr. Irving testified on his own behalf and defendant called Correction Officer Alan Arnold and Sergeant Edward Craft. In the underlying claim, it is alleged that because of defendant's negligence, two other inmates assaulted claimant on September 12, 2001 at Woodbourne Correctional Facility.
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Claimant testified that on September 11, 2001, an argument among inmates broke out during a basketball game in the Woodbourne gym. Irving recalled that the correction officers on the scene told the inmates to calm down or the game would be "shut down," and he described the situation as "a heated game," with "a little controversy."

Irving continued that the following morning, an inmate named Brown, who lived in his dormitory, raised the basketball incident with claimant, who told Brown he did not wish to discuss it. According to claimant, their conversation was loud enough for correction officer Arnold to admonish them to be quiet. Claimant said that later that day, at approximately 12:45 p.m., he went to his job as a "rec aide" in the gym. When he saw that other inmates from the previous day's argument were there, he decided to return to his dormitory rather than confront them.

Irving stated that around 2:00 p.m. that day, while in his "cube," Brown and Doolittle, two of the inmates involved in the previous day's argument, came into the housing unit, jumped him and began to beat him up. He maintained that the two inmates came in through a gate that was not supposed to be open, explaining that such gate is supposed to remain locked until the grounds crew inmates return to the dorm at 2:30 or 2:45 p.m. Claimant also contended that at the time of the incident, correction officer Arnold was watching television in the dayroom and did not respond to the fight for five to ten minutes. Claimant added that after Arnold responded, other officers also came and the fight then ended. Irving was subsequently issued a misbehavior report for the fight and found guilty.

As to his injuries, Irving testified that he got "a little small gash on my eye" and was also "poked" in his arm. Claimant was treated at the facility infirmary where his eye was cleaned and he was given bandaids and ointment for it. An x-ray showed no other injuries.
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Officer Alan Arnold testified that he was familiar with Mr. Irving and was assigned to his housing unit on September 12, 2001. He recalled the fight between Irving, Brown and Doolittle as follows. He was at his desk near the dorms when he heard an altercation and turned around to see Irving and Brown fighting. Arnold explained that one enters the housing unit through a dayroom, followed by a hallway with his office at the end, followed by the dorm area, and to do so, one must pass through a gate. He added that he was not in the dayroom watching television at the time of the fight. Arnold testified that when he saw the fight, he ran over and told Brown and Irving to break it up, but they did not respond. At that point an inmate from another unit came in through the gate, ran past Arnold and jumped on Irving's back.

Arnold testified that it was a matter of seconds from the time he heard the fight until the time he went over to break it up, and the fight itself lasted less than a minute because the inmates finally responded to the order to break it up. As to the gate, Arnold explained that when it is time for inmates to return to the dorm from a program, he would leave his desk to open the gate and then return to his desk. The gate would then be re-locked after all the inmates returned. He further explained that the grounds crew returns at about 2:00 p.m. and that at the time of the fight in this case, the gate was unlocked because they had not yet all returned.

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Sergeant Edward Craft testified that as the relief/housing sergeant on September 12, 2001, he supervised claimant's dormitory. Craft recalled that he responded to the "red dot" called when the fight broke out, although he did not specifically recall the incident. He explained that his procedure in response to a red dot would be to make sure the fighting inmates were separated, to take them to the infirmary and to do an investigation into the incident. His conclusion in this case was that an argument over a basketball game had led to the fight.

Finally, Craft stated that he had no knowledge prior to the fight that Irving had had any problems with Brown or Doolittle.
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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, with regard to notice of an impending fight, Irving presented,
e.g., no evidence that Brown and Doolittle were on his enemies list, that he was a known vulnerable inmate, or that the other inmates were known aggressors. Rather, claimant essentially contends that the argument on the basketball court and loud discussion in the bathroom the next morning should have put defendant on notice that a fight would follow. But he presented no evidence that defendant knew or should have known that there would be physical violence in the offing.
Claimant also failed to show by a preponderance of the evidence that correction officers failed to timely or appropriately respond to the fight, that the gate to the dormitory was improperly left open or that any other applicable rules or regulations were violated.

In sum, claimant has failed to prove defendant's negligence by a preponderance of the evidence and accordingly, claim no. 105298 is dismissed.


December 9, 2004
New York, New York

Judge of the Court of Claims