New York State Court of Claims

New York State Court of Claims

HAMILTON v. THE STATE OF NEW YORK, #2005-010-039, Claim No. 105066, Motion Nos. M-69982, CM-70045


defendant's cross-motion for summary judgment is granted and claimant's motion for summary judgment is denied. The Court found that defendant met its burden of establishing that it acted with reasonable care in providing inmate safety, hiring, retaining and supervising of its employee

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):
Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-7[1] were read and considered by the Court on claimant's motion for summary judgment and defendant's cross-motion for summary judgment:
Notice of Motion, Supporting Affidavit and Exhibits...............................................1

Claimant's Memorandum of Law.............................................................................2

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............3

Reply Affidavit.........................................................................................................4

Memorandum of Law Opposing Cross-Motion........................................................5

Affirmation in Reply and Exhibit.............................................................................6

Deposition of Linda Barrett......................................................................................7

The facts of the case are undisputed. On October 25, 2000, defendant's employee, Linda Barrett, the housekeeping supervisor in the Regional Medical Unit at Bedford Hills Correctional Facility, assaulted claimant, an inmate at the facility. Further, Barrett accused claimant of having an affair with Barrett's boyfriend, Gillum Prater, a maintenance assistant at Beacon Correctional Facility (Beacon). Claimant had never been housed at Beacon.[2] As a result of this conduct, Barrett was transferred to a facility which housed only male inmates.
Motion and Cross-Motion for Summary Judgment
Claimant moves for summary judgment on its claims of negligent hiring, retention and supervision of defendant's employee, Linda Barrett, and negligence in defendant's failure to provide for the safety of its inmate, claimant. As to the two remaining causes of action alleged in the claim, claimant concedes that she will discontinue them if she prevails on her motion for summary judgment (Claimant's Affidavit, ¶ 7). The first cause of action is for cruel and unusual punishment arising out of defendant's indifference to claimant's safety (Defendant's Ex. A, Claim ¶¶ 23, 24). The second cause of action is for assault and battery committed by Barrett while acting within the scope of her employment (id. at ¶¶ 25, 26).

Defendant does not dispute the facts alleged. Rather, defendant cross-moves for summary judgment in its favor dismissing the claim on the following grounds. First, defendant maintains that it was not negligent in its hiring, supervision or retention of Barrett because Barrett's assaultive conduct was not foreseeable. Thus, defendant argues that it was not negligent in providing for claimant's safety. Second, defendant argues that Barrett's conduct was not done within the scope of her employment. Therefore, defendant cannot be held liable for her assaultive behavior.
The undisputed facts are as follows. Prior to being hired by the New York State Department of Correctional Services (DOCS) on July 27, 2000, Barrett initiated an anonymous complaint on July 10, 1998 with the New York State Inspector General (IG). The complaint alleged that Gillum Prater, a maintenance assistant at Beacon, was engaged in unauthorized intimate behavior with female inmates at that facility. Along with her complaint, Barrett included sexually explicit letters and photographs allegedly from female inmates. Barrett, however, could not identify the female inmates. The IG's office conducted an investigation of the complaint, which included discussions with Beacon's superintendent, Susan Schultz. On April 26, 2000, the case was closed as unsubstantiated.

On June 16, 2000, Barrett initiated a second complaint. It was nearly identical to the first complaint. By July 2000, while the investigation of the second complaint was still pending, Beacon's Superintendent, Susan Schultz, had been reassigned as First Deputy Superintendent of Bedford. Schultz had become personally acquainted with Barrett through Prater, who had been doing work at Schultz's home. Schultz recommended Barrett for a housekeeping position in the Regional Medical Unit at Bedford. The Regional Medical Unit treated female inmates from Bedford and other facilities, such as Beacon. Barrett was interviewed by the Deputy Superintendent for Health Services and was hired on July 27, 2000. Claimant points out that Barrett was recommended for employment by Schultz despite her awareness of Barrett's outstanding complaint.

On October 16, 2000, Barrett was interviewed by an investigator from the IG's office regarding her second complaint. Barrett was unable to identify any of the female inmates who had allegedly been involved with Prater. On October 17, 2000, the IG's office closed the second case as unsubstantiated. Eight days later, on October 25, 2000, Barrett confronted claimant outside the Bedford Hills school building and grabbed claimant by the collar. Barrett accused claimant of having an affair with Prater and pleaded with claimant to tell Deputy Schultz about claimant's relationship with Prater. Barrett left and then went to the Bedford's Educational Supervisor, Kim-Ann Gerwer. Barrett told Gerwer that Barrett had just accused claimant of having relations with Prater. Thereafter, claimant also went to Gerwer about the incident. While claimant was in Gerwer's office, Barrett stormed in and again grabbed claimant and pleaded with her to report her relations with Prater. After repeated requests from Gerwer, Barrett finally left the office. Gerwer reported the incidents to Superintendent Elaine Lord. Barrett was immediately removed from the facility and placed on administrative leave until she was ultimately reassigned to a male facility. Claimant was treated for emotional distress.
Claimant argues that, defendant was negligent in hiring Barrett when Deputy Superintendent Schultz knew of Barrett's complaint about Prater's alleged involvement with female inmates and yet Schultz recommended Barrett for employment in a female facility where Barrett would have unrestricted access in the Regional Medical Unit to inmates from Bedford and Beacon. Claimant further argues that:
"the State should have foreseen that Linda Barrett, twice rebuked by the IG's office, would attempt to personally substantiate the affair between Gil Prater and a female inmate, and might injure an inmate in the process. By giving her unrestricted access to female inmates under the circumstances, the Defendant failed to exercise care of a reasonably prudent person"
(Claimant's Reply Affidavit, p. 3, ¶ 9). Claimant argues that Barrett's conduct was "foreseeable and a natural incident of her employment" (see also Claimant's Memorandum in Opposition, pp. 3, 6). Finally, claimant argues that Barrett acted within the scope of her employment because she was acting in furtherance of the State's interest in regulating employee misconduct. Claimant argues that Barrett's interaction with claimant was directed at getting her to provide the State with the necessary information that would enable the State to take the appropriate action against Prater.

To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Andre v Pomeroy, 35 NY2d 361, 364). It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care in light of what the State actually knew, and "what the State reasonably should have known" (Sanchez v State of New York, supra at 254 [emphasis in original]). The State, as an employer, may also be held vicariously liable for its employee's tortious conduct when such conduct was "generally foreseeable and a natural incident of the employment" (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933). Additionally, even in cases where an employer cannot be held vicariously liable for its employee's torts, the employer may still be held liable under theories of negligent hiring, negligent retention, and negligent supervision; "[h]owever, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Sato v Correa, 272 AD2d 389, 389-90, quoting Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161). Thus, the critical issue in this case is whether defendant should have reasonably foreseen that Barrett might pose a risk to the safety of female inmates.

Upon review of all the papers submitted, this Court finds that Barrett's tortious conduct was not reasonably foreseeable (see Fainberg v Dalton Kent Sec. Group, 268 AD2d 247, 248 [plaintiffs failed to show employee had history of, or propensity for, assaultive behavior and, even if such was established, that defendant knew or should have known of that history or propensity]). Notably, Barrett's past conduct was an indication that she appropriately followed the proper procedures in filing a complaint and had not taken any inappropriate measures of addressing the matter herself. There is no indication that upon dismissal of the first complaint as unsubstantiated that Barrett acted in a reactionary or retaliatory manner. Barrett had proceeded through the proper channels in reporting Prater's alleged misconduct and it had been two years since Barrett's initial complaint when the second complaint was initiated. Moreover, an assault upon claimant was not foreseeable because Barrett did not know the identity of the female inmates alleged to have been involved with Prater; there was no evidence linking claimant to Prater, and claimant had never been housed in Beacon. In sum, claimant has failed to meet her burden of showing that defendant had or should have had knowledge that Barrett had a propensity toward violence (see State Farm Ins. Co. v Central Parking Systems, 18 AD3d 859; Day v Hellenic Serv. Sta., 2 AD3d 482).

Indeed, claimant has failed to meet her burden of establishing any basis upon which to hold defendant liable for Barrett's conduct (see Matter of State Div. of Human Rights (Greene) v St. Elizabeth's Hosp., 66 NY2d 684, 687 [employer not liable for employee's conduct where complained of conduct was neither encouraged, condoned nor approved of by employer] ). It is well established that, "an employer cannot be held liable for an employee's assaultive acts where the tortious conduct was not undertaken within the scope of employment, the employer did not authorize the violence and the use of force is not within the discretionary authority afforded the employee" (Lazo v Mak's Trading Co., 84 NY2d 896, 899). The Court does not find persuasive claimant's argument that Barrett's conduct was in furtherance of the State's interest in regulating Prater's alleged misconduct. Rather, the Court finds that Barrett's misconduct was a departure from her housekeeping duties for which she was hired and that her assault and confrontation with claimant was an action committed solely for personal motives unrelated to the furtherance of the State's interests (see Judith M. v Sisters of Charity Hosp., supra; Fainberg v Dalton Kent Sec. Group, supra).

The Court finds that the State has met its burden of establishing that it acted with reasonable care in providing for inmate safety, hiring, retaining and supervising its employee, and that claimant has failed to tender any evidence to the contrary. Instead, claimant has presented mere speculation and unsubstantiated allegations, which are insufficient to raise a triable issue of fact (Zuckerman v City of New York, supra at 562). Specifically, the mere fact that Barrett had filed two complaints with the IG was insufficient to raise an issue of fact without some other evidentiary proof that Barrett, if hired, could potentially pose a risk to female inmates. Further, the evidence established that once defendant was aware of the complained of conduct of its employee, defendant responded in a timely and appropriate manner (see Martinez v Triangle Maintenance Corp., 293 AD2d 721, 722 [defendants established that they took appropriate remedial action]).

Accordingly, claimant's motion is DENIED and defendant's cross-motion for summary judgment dismissing the claim is GRANTED.

July 13, 2005
White Plains, New York

Judge of the Court of Claims

[1] Both parties submitted excerpts of the deposition testimony of Linda Barrett. Accordingly, the Court requested that the parties submit the entire deposition for the Court's review. The copy was received on July 6, 2005.
[2] From 1990 through present, claimant was incarcerated at Bedford, except from 1996 to 1997, when she was incarcerated at Taconic.