New York State Court of Claims

New York State Court of Claims

Ortiz v. THE STATE OF NEW YORK, #2006-041-501, Claim No. 106364


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):

Frank P. Milano
Claimant’s attorney:
Marcus Ortiz, Pro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Kevan J. Acton Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 31, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Marcus Ortiz commenced this action seeking recovery for injuries allegedly sustained in an inmate-on-inmate altercation which occurred on July 31, 2000 at Clinton Correctional Facility. In particular, claimant alleges that defendant’s negligence caused him to be assaulted by another inmate; this, despite defendant’s knowledge of an earlier fight between claimant and the same inmate, which fight had resulted in serious injuries to claimant. Claimant seeks to recover for aggravation of the injuries originally sustained in the earlier fight between the two.
On July 6, 2000, while both were in the E-Block yard for IPC (involuntary protective custody) recreation at Clinton Correctional Facility, claimant and fellow inmate Olave had a physical altercation. As a result of that altercation, claimant suffered serious facial injuries, including a non-displaced fracture of an orbital bone on the left side of his face and substantial facial and periorbital swelling.
Both claimant and Olave were given 20 days of keeplock as a result of the July 6th fight. From July 6, 2000 until July 26, 2000, claimant, in keeplock, was unable to access the E-Block recreation yard. Beginning on July 26th, inmate Olave and claimant were provided alternate day access to the E-Block recreation yard, Olave using the yard on July 26th and July 28th, and claimant using the yard on July 27th and July 29th. No testimony was given concerning use of the recreation yard on July 30th.
On July 31, 2000, claimant exited a side door of E-Block and descended three stairs into a caged area about 10 paces from the entrance to the E-Block recreation yard. Inmate Olave was in the recreation yard at this time. Upon seeing the claimant, Olave rushed and tackled him and the two wrestled on the ground for between 30 and 60 seconds. Nearby correction officers, within feet of the two, immediately interceded and separated them. Claimant testified that Olave struck claimant’s upper body as the two fell to the ground. No blows to claimant’s face were struck. Claimant alleges that he suffered further pain and swelling in the area of his face which was previously injured and claims that he will require reconstructive surgery.
Initially, the Court must determine whether the defendant was negligent in failing to provide supervision sufficient to protect claimant from the risk of foreseeable harm at the hands of inmate Olave. The Court finds that the defendant failed to provide adequate supervision in this case.
The law on this question is well settled. "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" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). “This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable” (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). “The State ... is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident” (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an “enemies list with the institution” (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was “a known dangerous prisoner ” (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether “claimant was a known assault risk” (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]). The State’s potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant’s vulnerability or a particular assailant’s violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon “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, 99 NY2d at 254).
Here, the defendant knew, or should have known, claimant and inmate Olave were enemies and posed a substantial danger to each other. Only twenty-five days prior to the July 31st incident, the two had had a serious physical altercation in the very same recreation yard which resulted in substantial physical injuries to claimant. As a result of the fight of July 6th and the disposition of the disciplinary charges related thereto, defendant was aware, or should have been aware, that claimant and Olave were at risk of engaging in further violence toward each other. Moreover, the defendant evidenced an awareness of the danger each posed to the other by having them alternate recreation yard use in the days leading to July 31st, the first such days recreation privileges were restored to claimant. Nevertheless aware of the animosity between the two and the potential for further violence, the defendant placed them in close physical proximity to each other at the entrance to the E-Block recreation yard on July 31st. The foreseeable, further physical contact between the two, occurred immediately.
Having determined that the defendant breached a duty of care to claimant, the Court must assess what, if any, damages the claimant suffered. “[I]t is axiomatic that a party bringing a cause of action in negligence has the burden of proving that the negligence of the defendant was a proximate cause of the injuries .... Further, where there is a preexisting condition a tortfeasor is liable for those separate injuries or the aggravation that his or her conduct has caused” (Aragones v State of New York, 247 AD2d 657, 657-658 [3d Dept 1998]). “Generally, a successive tortfeasor's liability is limited to the separate injury or aggravation caused by his or her conduct, unless the injuries are incapable of practicable allocation, in which instance joint and several liability may be implicated .... Moreover, the fact that an earlier injury or condition makes an individual more susceptible to a subsequent injury does not provide a ground for the later tortfeasor to fully escape liability” (Reilly v Fulmer, 9 AD3d 818, 819 [3d Dept 2004]). Finally, “it is settled that actual damages are an essential element of a negligence action” (Igen, Inc. v White, 250 AD2d 463, 465 [1st Dept 1998]; lv denied 92 NY2d 818 [1998]).
The Court finds that the altercation of July 31st caused no aggravation of the injuries claimant incurred as a result of the July 6th attack by inmate Olave, and further finds that no new injuries were sustained by claimant on July 31st. Claimant offered no competent admissible proof of any injuries or damages incurred which were unrelated to the injuries previously sustained on July 6th. Claimant offered no expert medical testimony or medical or hospital records with respect to the incident of July 31st. In fact, claimant offered no proof whatsoever of either new injuries or aggravation of prior injuries resulting from the July 31st incident, other than his own self-serving statements.
Claimant was immediately taken to the facility hospital after the incident of July 31st for a physical examination. He made no complaint that his injuries of July 6th had been aggravated nor did he complain of any new injury. The July 31st examination at the facility revealed neither new injuries nor aggravation of the July 6th injury. When questioned on cross-examination about his failure to report any injuries during his examination at the facility hospital immediately after the July 31st incident, claimant became evasive and argumentative. The Court finds that claimant’s trial testimony regarding the alleged July 31st aggravation of the injuries originally sustained on July 6th lacked credibility (see Brooker v State of New York, 206 AD2d 712, 712-713 [3d Dept 1994]). Finally, during the incident of July 31st, no blows were struck to the face of claimant, and in his own words, he and inmate Olave were only on the ground for “30 seconds, 45 seconds, maybe a minute.”
In sum, the record is absolutely barren of any competent medical testimony or evidence which demonstrates that the July 31st altercation caused either a new injury to claimant or an aggravation of the injuries claimant initially sustained on July 6th. "Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
Absent expert medical testimony, the Court would be engaging in mere conjecture by finding that any of the claimant’s present injuries were caused by the July 31st incident rather than by the fight of July 6th. The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate an aggravation of a prior injury, under these facts (Duffen v State of New York, 245 AD2d 653, 653-654 [1997], lv denied 91 NY2d 810 [1998]).
The claimant was required to demonstrate by a preponderance of the credible evidence that he had, in fact, been damaged by reason of the defendant’s breach of duty. He failed to do so since claimant failed “to submit even a scintilla of objective medical evidence on the issue of causation” (Ciocca v Park , 21 AD3d 671, 673 [2005] aff’d 5 NY3d 835 [2005]).
Although not the basis of the Court’s decision, it is noted that the defendant’s only witness, Dr. Vonda Johnson, testified that, based upon a review of claimant’s medical records from July 2000 through June 2002, it is her opinion that claimant suffered no aggravation of his earlier injuries as a result of the incident of July 31st.
Finally, the Court received a letter dated August 22, 2006 from the attorney for the defendant making further argument and seeking to have certain testimony stricken from the record. The letter was untimely. As the record was closed at the conclusion of the trial on August 18, 2006, the defendant’s request was not considered. In response to defendant’s letter of August 22, 2006, claimant, in an undated letter received by the Court on August 28, 2006, objected to the defendant’s request, made further argument and sought additional time to produce additional documentation. As the record was closed on August 18, 2006, and as defendant’s letter of August 22, 2006 was not considered, claimant’s response to it was not considered.
Based upon the foregoing, the claim is dismissed. Let judgment be entered accordingly.

August 31, 2006
Albany, New York

Judge of the Court of Claims