In this claim, claimant seeks damages for personal injuries sustained by him in
an assault against him by an unknown person, which occurred on June 6, 1995, at
a time when he was incarcerated at Auburn Correctional Facility ("Auburn"). The
claim is based upon allegations of negligent supervision.
In a decision made following a trial on liability, my esteemed and learned
colleague, Hon. Diane L. Fitzpatrick, previously dismissed this claim,
finding that claimant had not established his cause of action based upon
recognized grounds pertaining to inmate assaults (
Gangler v State of New York
, February 5, 2001, Fitzpatrick, J., Claim No.
96352 [UID #2001-018-059])
. Claimant appealed
this decision, and during the pendency of his appeal, the Court of Appeals
established that the proper standard in determining inmate assault claims is one
of reasonable foreseeability, i.e., whether defendant knew or reasonably should
have known that the inmate claimant was at risk of harm. (Sanchez v State of
, 99 NY2d 247). The Appellate Division, Fourth Department,
therefore reinstated this claim and ordered that a new trial be granted
(Gangler v State of New York
, 302 AD2d 964).
This claim was then assigned to this Judge, and a trial limited to the issue of
liability was heard on July 7, 2005.
At this trial, claimant testified that at the time of this assault, he was an
inmate plumber at Auburn, which required him to assist personnel from the
maintenance department in making plumbing repairs throughout the facility. On
the morning of June 6, 1995, claimant was assigned to work with a civilian
plumber in the B Block at the facility. After completing his work in the
morning, claimant was directed to return to B Block in the afternoon to repair a
defective shower valve in the 9 Company of B Block.
After lunch, claimant returned to B Block and reported to the officers' desk on
the main floor of the housing area, carrying his locked toolbox. Since he
worked as an inmate plumber, claimant was permitted to have a toolbox in his
possession, containing those tools which he would need in order to perform his
duties. Claimant was responsible for the tools in his toolbox, which was
padlocked when not in use. According to claimant, this toolbox also contained
an inventory listing of the tools contained therein.
After arriving at the officers' desk on the first floor of the B Block housing
area, he went up the stairs and met Correction Officer Richard McConnell. He
testified that Officer McConnell accompanied him to the shower area, and Officer
McConnell first unlocked the utility corridor door, in order to turn off the
water to the shower that he was to repair. Officer McConnell then escorted
claimant back to the 9 Company shower stall (which is in actuality a prison cell
that has been converted into a shower that needed repair).
Claimant testified that he then proceeded to work on the shower, and that he
first removed the defective valve. He then was kneeling in the shower stall,
working on the valve, when he was struck from behind by an unknown assailant.
He was knocked unconscious for a brief moment, and when he awoke, he was alone
in the shower cell and bleeding from the area of his right eye. The cell door,
which had been left open prior to the incident, was closed and locked. Claimant
then called out for assistance, and shortly thereafter Officer McConnell
returned to the scene and summoned medical assistance.
Claimant testified that he was unaware of any possible enemies at the facility,
and that he had not requested any special protection prior to the incident.
Claimant testified that the identity of his assailant has never been determined.
With regard to his tools and toolbox, claimant testified that prior to the
assault, he had been informed that his tools were classified as "Class A" tools
and that, to the best of his knowledge, some of the tools in his toolbox were
classified as such. He further testified that while working as an inmate
plumber at Auburn, he had been directly supervised by either a civilian or
correction officer on each and every occasion prior to this incident.
Correction Officers Anthony Volpe and Carl Townsend were both called as
witnesses by claimant. Neither of these officers, however, had any personal
knowledge of this incident. Correction Officer Volpe testified that a type A
tool was in reference to a classification of tools established by the Department
of Correctional Services, and that these tools were considered the type of tools
that could be used in an assault or in aiding an escape. Correction Officer
Townsend testified that inmates who possessed Class A tools as part of their
work duties required constant and direct visual supervision. Neither of these
officers, however, had any knowledge as to whether claimant possessed any Class
A tools on the day that he was assaulted.
John Rourke, a lieutenant at Auburn at the time of the incident, testified as
to the procedures and security protocols regulating the distribution of tools at
the facility. He testified that the distribution of Class A tools was strictly
controlled, and regulations required a civilian maintenance worker to sign a
tool out, with that worker being responsible for its return. The employee who
signed out any Class A tool was required to supervise the inmate using that
tool. Lieutenant Rourke also testified that inmates were not permitted to carry
Class A tools in a locked toolbox, and as a result, there were no requirements
that a correction officer had to search an inmate's toolbox upon his arrival to
Lieutenant Rourke further testified that if an inmate possessed Class B tools
(essentially, any tool not classified as a Class A tool), and not Class A tools,
constant and direct supervision was not required, and a correction officer was
required to provide intermittent supervision of the inmate.
Officer Richard McConnell, the correction officer who accompanied claimant on
his work duties that afternoon on the day of the incident, also testified. He
acknowledged that he did not inspect claimant's toolbox when he arrived at the B
Block housing area. After shutting off the water in the utility corridor,
Officer McConnell testified that he left claimant alone in the shower stall and
then proceeded to the gate at the end of the company to let in another inmate.
When he returned after just "a couple of
, he noticed that the shower door was closed. He looked in and saw claimant on
his knees and could tell that claimant had been assaulted. He then called for
assistance from other officers.
Correction Officer McConnell acknowledged that he did not maintain direct and
constant supervision over claimant during the time that he was letting in
another inmate at the gate. Even though he did not open or inspect claimant's
locked toolbox, Correction Officer McConnell did not believe that claimant
possessed any Class A tools, since claimant had not been in the custody of any
civilian or prison employee when he arrived at his desk for his afternoon work
duties. Since he did not inspect the tool box, however, he had no direct
knowledge of the types of tools that were contained therein.
Following this assault, an unusual incident report was prepared. Lieutenant
Rourke testified that this report made no identification of, or reference to,
the tools that were in the possession of claimant at the time of the incident.
It is well settled that the State is required to use reasonable care to protect
inmates of its correctional facilities from the foreseeable risk of harm (
see Flaherty v State of New York
, 296 NY 342; Dizak v State of New
, 124 AD2d 329; Sebastiano v State of New York
, 112 AD2d 562).
Foreseeable risk of harm includes the risk of attack by other prisoners (see
Littlejohn v State of New York
, 218 AD2d 833). The duty to protect inmates
from the risk of attack by other prisoners, however, does not render the State
an insurer of inmate safety (see Sanchez v State of New York
, 99 NY2d
247). The scope of the defendant's duty of care is to exercise reasonable care
to prevent attacks which are reasonably foreseeable (Sanchez v State of New
). The test for liability has evolved from the strict
requirement of specific knowledge to encompass not only what the State knew, but
also "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" (Sanchez v State of New York
at 254 [emphasis
in original]). Accordingly, "[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
In this Court's opinion, liability in this matter hinges upon a determination
as to whether claimant was in possession of Class A tools at the time of his
assault. Defendant acknowledges that Department of Correctional Services policy
requires its correctional facilities to strictly enforce Class A tool
assignment procedures, and an inmate in possession of those tools must be kept
in constant direct supervision. These regulations, therefore, are certainly
relevant in determining the reasonable foreseeability of an assault. Defendant
also concedes that Officer McConnell, while supervising claimant, did not keep
him in his direct view at all times, and that the assault occurred at a time
when he was unable to see claimant. However, if claimant was in possession of
Class B tools only, prison regulations would not require constant direct
supervision, and Officer McConnell's absence for a brief period of time may not
be sufficient, in and of itself, to constitute negligence. In this
particular matter, claimant was unable to produce any documentation to establish
the fact that he was in possession of Class A tools on the day of his assault.
The Court, however, found claimant to be a credible witness, and he provided the
only direct testimony as to the type of tools that he possessed on that day.
Defendant, on the other hand, produced no documentation whatsoever in support
of its position that the tools possessed by claimant were only Class B tools.
The Court is troubled by the fact that the unusual incident report (see Exhibit
F) makes no reference to the tools that were possessed by claimant at that time,
nor did the State produce the inventory list which should have been maintained
in claimant's toolbox with his tools.
The Court has reviewed the lists of tools that are classified as Class A tools
(see Exhibit 3) and finds it reasonable to conclude that since claimant had been
instructed to repair the shower valve in the B Block shower stall, the types of
tools required to adequately complete this task in all likelihood required the
use of Class A tools.
Therefore, based upon the Court's assessment of the credibility of the
witnesses, and after evaluating the evidence presented, the Court finds that
claimant did possess Class A tools on June 6, 1995, and that prison
regulations in effect at that time required the State to provide constant direct
supervision over this inmate and his tools. This requirement to provide
constant direct supervision over the inmate in possession of Class A tools is
intended to prevent their use in an assault or escape attempt. It is therefore
reasonably foreseeable that without constant and direct supervision, an assault
and/or escape could occur, which is exactly what occurred in the instant claim.
The Court further finds, therefore, that this assault against claimant was a
direct and proximate result of the State's failure to maintain constant direct
supervision over claimant while he performed his work duties.
Since the only testimony before the Court established that claimant was
intently involved in his work duties when he was assaulted from behind, the
Court finds no basis to attribute any comparative negligence to claimant.
Accordingly, the Court finds that the State is fully liable for the injuries
suffered by claimant in this assault.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY