New York State Court of Claims

New York State Court of Claims

FALLEN v. THE STATE OF NEW YORK, #2007-009-179, Claim No. 107208


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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 3, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2002[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 “separation order”[2] was to be entered, to ensure that claimant and inmate Freeman would be kept separated.[3]

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 transferred there.

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 evening.

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 Facility.

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 this altercation.

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.


December 3, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. In the claim, claimant alleges that his cause of action occurred on April 30, 2002. However, all trial testimony and documentary evidence conclusively established that the assault on which this claim is based actually occurred on May 1, 2002.
[2]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[3]. No such document was produced by either party at trial, and therefore the actual existence of this “separation order” has not been established.