Claimant sought damages for personal injuries suffered in an inmate-on-inmate
assault on May 1, 2002 at Auburn Correctional Facility. The Court found that
claimant failed to establish that his injuries were caused by this altercation,
based upon the testimony from defendant’s medical expert that the
pre-existing condition pre-dated the altercation.
In this claim, claimant seeks to recover damages for personal injuries suffered
by him when he was assaulted by another inmate on May 1,
at Auburn Correctional Facility, where he
was then incarcerated. Claimant alleges that the Department of Correctional
Services (hereinafter “DOCS”) failed in its duty to provide him with
reasonable protection from this assault.
At the direction of this Court, and by agreement of the parties, the trial of
this claim was unified, and therefore testimony was taken with regard to both
issues of liability and damages.
Claimant testified that he had been held in the custody of DOCS since 1996. On
January 9, 2001, when claimant was incarcerated at Attica Correctional Facility,
he was assaulted with a weapon by another inmate, one Damon Freeman. Claimant
testified that he was advised by correction personnel at Attica that a written
was to be
entered, to ensure that claimant and inmate Freeman would be kept
Claimant testified that after this incident, he was at some point transferred
to Upstate Correctional Facility, and then was subsequently transferred to
Auburn Correctional Facility on April 29, 2002. Upon his arrival at Auburn
Correctional Facility, claimant was interviewed, and on April 30, 2002 signed an
Admission Interview Form acknowledging that he had no known enemies at that
facility (Auburn). Claimant testified that he had not seen inmate Freeman since
the assault which occurred on January 9, 2001 at Attica, and was unaware that
inmate Freeman was housed at Auburn at the time that he (claimant) was
On May 1, 2002, however, shortly after his arrival at Auburn, claimant
testified that he was returning to his housing unit and was standing in the
recreation yard, waiting for a correction officer, when he was approached and
immediately assaulted by inmate Freeman. He testified that inmate Freeman
provoked this altercation, and that both he and inmate Freeman were then
separated by correction officers. Following this incident, claimant was taken
to the infirmary for medical examination. Claimant acknowledged at trial that
he made no complaints of any injuries to the medical staff at this time, but
testified that his shoulder began to hurt after he was returned to his cell that
Claimant testified that he then did not seek any medical attention, or report
any complaints of injuries, until May 13, 2002, when he made a request for a
medical call-out. At that time, he complained of pain in his right shoulder.
Claimant testified that since this time, he has continued to experience
constant pain in his right shoulder. While he was incarcerated, he was provided
with physical therapy, was given cortisone injections, and was examined by an
orthopedic surgeon, who recommended surgery on his right shoulder. Claimant
testified that he declined this surgery, but that he continues to experience
pain in his right shoulder since his release from custody.
Claimant testified that he is currently employed at a pallet company, and that
he is required to use his right shoulder and arm to carry out his work duties at
his employment. He testified that he continues to suffer pain at work, and
takes “over the counter” medications for this pain when necessary.
There was no evidence introduced that claimant has sought or received any
specific medical treatment for his injury since he was released from custody.
Under cross-examination, claimant acknowledged that he did not tell medical
personnel that he was experiencing any pain immediately following the incident
of May 1, 2002, stating that he was too “hyper” at the time, and
that he simply wanted to return to his cell.
Correction Officer Laurence Cheney, a liaison officer at Auburn Correctional
Facility, testified on behalf of the defendant. He testified that following an
incident such as the one which occurred on May 1, 2002, the inmates involved are
separated and taken individually to the infirmary for medical evaluation. Each
inmate is then returned to his individual cell, and placed on
“keeplock” status pending a disciplinary hearing. While on
“keeplock”, Officer Cheney testified that an inmate would still have
access to medical treatment on a daily basis.
Daniel G. DiChristina, M.D., was qualified by the Court as an expert in the
field of orthopedic surgery, and testified on behalf of the defendant. Dr.
DiChristina did not conduct any physical examination of the claimant, but
testified based upon his review and examination of claimant’s medical
records, including x-ray films and a magnetic resonance image (MRI).
Based upon his review of an x-ray film and report dated May 16, 2002, Dr.
DiChristina determined that there was a cyst at the end of claimant’s
clavicle at the acromioclavicular joint (“AC” joint). Dr.
DiChristina further testified that this cyst was “months old” and
had developed at the end of claimant’s clavicle prior to the incident of
May 1, 2002.
Dr. DiChristina also testified that at the conclusion of claimant’s
physical therapy program in January, 2003, the cyst continued to exist in the
same location, even though the condition of claimant’s right shoulder may
have shown some improvement as a result of the physical therapy.
Dr. DiChristina further testified about an MRI of claimant’s right
shoulder which was performed in June, 2003. He concluded that the MRI also
indicated the presence of the cyst, consistent with the x-ray of May 16, 2002.
Based upon his examination of these medical records and reports, Dr.
DiChristina concluded that the cyst which is present in claimant’s right
shoulder predated the May 1, 2002 altercation with inmate Freeman. He also
concluded that claimant’s subsequent complaints of pain, approximately two
weeks following the incident, were directly related to the presence of the cyst,
and did not result from the May 1, 2002 incident.
Under cross-examination, Dr. DiChristina acknowledged that he did not review
any x-rays or MRI’s taken prior to the date of the incident, and therefore
had no objective proof as to when the cyst first appeared. He also testified
that there was no indication in the medical records that claimant had made any
complaints of shoulder pain prior to the May 1, 2002 altercation. Dr.
DiChristina testified, however, with reasonable medical certainty, that the cyst
was in existence prior to the May 1, 2002 incident, and that the cyst was the
source of the pain complained of by claimant.
Dr. DiChristina conceded, under cross-examination, that the altercation between
claimant and inmate Freeman could possibly have caused pain in the area of the
cyst, but that it was also possible that claimant’s condition could have
been caused by other means. For example, Dr. DiChristina testified that the
cyst which was present in claimant’s right shoulder was a common injury
caused from weightlifting, and there was testimony from claimant that he had
participated in weightlifting programs while in the custody of DOCS.
No other witnesses were called to testify at this trial.
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
(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).
Foreseeable risk of harm includes the risk of attack by other prisoners
(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 (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 York, supra). 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, supra 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, supra at 256).
In this particular instance, claimant has established that while incarcerated
at Attica Correctional Facility, he was assaulted by another inmate at the
facility on January 9, 2001. Testimony and documentary evidence established
that this assault was reported to facility officials, and that disciplinary
action was taken at the facility. It is also undisputed that inmate Damon
Freeman was the assailant involved in that incident, and that he was also the
instigator of the assault which occurred on May 1, 2002 at Auburn Correctional
Even though claimant signed a statement upon his arrival at Auburn Correctional
Facility that he had no known enemies at the facility, it appears that the State
had documentary evidence sufficient at that time to provide actual (and
certainly, at a minimum, constructive) notice that these two inmates should be
kept separated. The State therefore had a duty to segregate these two inmates,
which it obviously failed to do on January 9, 2001.
The State, however, while not necessarily conceding this negligent conduct,
relies upon the opinion of its medical expert and contends that the injury
complained of by claimant was not caused, and could not have been caused, by
The State’s medical expert, Dr. DiChristina, testified that
claimant’s pain resulted from a pre-existing cyst in his shoulder, and by
its nature this cyst could not possibly have been caused by the altercation of
May 1, 2002. Although Dr. DiChristina acknowledged under cross-examination that
it was possible that the altercation could have instigated the pain emanating
from this cyst, he also testified that the pain could have originated from
several other sources of activity as well.
Claimant, on the other hand, testified that he had not experienced any pain in
his shoulder prior to the altercation of May 1, 2002, and that he began to
experience pain in his shoulder immediately after the altercation with inmate
Freeman. Claimant further testified that he did not report any injuries when he
was taken to the infirmary, because he was “hyper” and that he was
“caught up in the moment”. Claimant’s testimony, however, is
belied by the fact that he failed to seek or request any medical assistance for
a period of 12 days after the incident, even though it was established at trial
that medical care was available to claimant upon request, including the time
that claimant was held in “keeplock” status.
Significantly, claimant offered no testimony other than his own to rebut Dr.
DiChristina’s findings, and he provided no medical testimony to establish
that his shoulder condition was proximately caused by the altercation with
inmate Freeman on May 1, 2002.
Where the facts establish the possibility of several causes for an injury, for
one or more of which the defendant bears no responsibility, and such other
causes are just as reasonable and probable, a claimant is not entitled to any
recovery since he has failed to establish negligence on the part of defendant
(Koester v State of New York, 90 AD2d 357; Bernstein v City of New
York, 69 NY2d 1020).
Based upon the undisputed medical testimony from Dr. DiChristina that a
pre-existing cyst was the competent producing source of pain in claimant’s
right shoulder, this Court finds that claimant has failed to establish, by a
preponderance of the admissible evidence, that his injury was caused by the
altercation with inmate Freeman on May 1, 2002. Accordingly, this claim must
be, and hereby is, dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.