New York State Court of Claims

New York State Court of Claims
VASQUEZ v. THE STATE OF NEW YORK, # 2007-038-107, Claim No. 102983


Case information

UID: 2007-038-107
Claimant short name: VASQUEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 102983
Motion number(s):
Cross-motion number(s):
Claimant's attorney: OFODILE & ASSOCIATES, P.C.
By: Anthony C. Ofodile, Esq.
Defendant's attorney: ANDREW M. CUOMO, Attorney General of the State of New York
By: Joel L. Marmelstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 21, 2007
City: Albany
Official citation:
Appellate results: Affirmed 68 AD3d 1275 [3d Dept 2009]
See also (multicaptioned case)


Claimant seeks compensation for injuries he sustained when he was assaulted by three other inmates at Ogdensburg Correctional Facility (Ogdensburg CF) on January 31, 2000. The liability phase of the trial of the claim was conducted on March 6 and 7, 2007 in Albany, New York. Based upon the findings of fact and the discussion that follows, the Court determines that the State is not liable to claimant.


At trial, claimant presented his own testimony and that of his expert witness, Ernest J. Gailor, P.E., a professional engineer licensed in New York State, as well as the testimony of the following New York State Department of Correctional Services (DOCS) employees: (1) Correction Officer (CO) Larry DuFore; (2) CO Daniel Conto; (3) Lieutenant (Lt.) Donald Bushey; (4) CO James Demers; and (5) Sergeant Brian Johnston. The deposition testimony of Correction Captain (Capt.) Sara Kurz was received into evidence. Defendant also presented the testimony of Lt. Donald Bushey, as well as the testimony of its expert, DOCS employee John Huntington. The following findings of fact are made after listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and Capt. Kurz's deposition testimony, and the photographic and documentary evidence received at trial.(1)

On January 31, 2000, claimant was in the care and custody of DOCS at Ogdensburg CF, a medium security prison. He had been at Ogdensburg CF for approximately five months, during which time he had been approached by other inmates about joining the Latin Kings gang, which he had refused to join. On the day in question, claimant was approached in his dormitory unit by an inmate who told him to go to the outdoor recreation yard ("rec yard") later in the day to talk with an inmate named Michael Delgado, a member of the Latin Kings.

Claimant arrived at the rec yard at approximately 6:00 p.m. He took a walk around the yard with Delgado and inmate Michael Perez, another member of the Latin Kings. Delgado and Perez asked claimant to join the Latin Kings, which claimant again refused to do. Following the conversation with Delgado and Perez, claimant watched television in the rec yard until approximately 7:05 p.m., when he went to use the rec yard bathroom. Once inside the bathroom, claimant was struck from behind on the left side of his face, and was then further assaulted by Delgado and Perez, who beat his head, face and torso until he collapsed. Claimant's attempt to flee the bathroom during the assault was prevented by another inmate, Juan Hernandez, who pushed him back into the bathroom and blocked him from leaving. Claimant estimated that the assault lasted between fifteen and twenty minutes, after which the three assailants left him alone in the bathroom. Claimant crawled out of the bathroom and informed CO DuFore, who was in a guard security post at the rec yard entrance, that he was injured and in need of medical attention. Claimant was taken to the Ogdensburg CF infirmary and then an outside hospital for medical treatment.

There was no evidence adduced at trial that would permit a finding whether the three assailants entered the bathroom before, after, or with claimant, or even if the three assailants entered together or one at a time. Prior to January 31, 2000, claimant had never had a conversation or altercation with Delgado or Perez, and he had been given no reason to feel threatened by them. Claimant had never requested voluntary protective custody at Ogdensburg CF, and the Court specifically discredits his testimony that he was unaware of the meaning or availability of protective custody within DOCS. Delgado, Perez and Hernandez were all previously known by Ogdensburg CF to have had an affiliation with the Latin Kings gang, but there was no evidence at trial that any of them had previously engaged in assaultive behavior against other inmates or that any of the three posed a threat to claimant.

There had been one prior assault inside the rec yard bathroom at Ogdensburg CF. On October 5, 1996, inmate Armando Alequin entered the bathroom while three other inmates were inside, and was seriously beaten by one or more of those unidentified inmates. Alequin speculated that the assault was in retribution for his trial testimony against co-defendants. No additional evidence about the circumstances of this prior incident was offered at trial.

On January 31, 2000, the outdoor rec yard was rectangular in nature, approximately 75 yards wide and 150 yards long (see Claimant's Exhibit 31 and Defendant's Exhibit T). The south end of the rec yard abutted the exterior wall of the Activities Building, and the other three sides of the rec yard were enclosed with a secure fence. There were three stationary guard posts around the perimeter of the rec yard, all of which were manned with a single correction officer at the time claimant was assaulted. Post 1 was located outside of the rec yard perimeter on the southeast side of the yard next to the yard entrance, and was approximately 86 feet from the bathroom entrance. Post 3 was inside the rec yard on the southwest side of the yard, directly opposite from Post 1, and approximately 132 feet from the bathroom door. Post 2 was inside the rec yard at the center of the north end of the yard (the far opposite end from the bathroom), approximately 400 feet from the bathroom door. Viewed together, the three posts would form a triangle if a line were drawn connecting the three posts. The entrance to the rec yard bathroom was within view of each of the three posts.

CO Larry DuFore was at Post 1, and responsible for observing inmates in the yard and controlling movement into and out of the yard, as that post was adjacent to the rec yard entrance. CO Daniel Conto was at Post 2, and CO James Demers was at Post 3. They were responsible for observing inmates in the yard within their field of vision, and CO Demers at Post 3 was primarily responsible for observing the inmates in the segregated weight yard. At the time of claimant's assault, there were 21 inmates in the rec yard. The Court credits claimant's uncontradicted testimony that there was no "rover" correction officer in the rec yard during that recreation period.

The facilities inside the rec yard bathroom could accommodate up to five inmates at one time. The bathroom had no windows or other openings that would allow observation of the interior of the bathroom. The interior of the bathroom was not equipped with video or other electronic surveillance equipment, nor was there any type of alarm system. Simply stated, one would need to be physically inside the bathroom to observe any activity inside the bathroom.

There were no DOCS policies regarding a maximum number of inmates that could occupy the rec yard bathroom at a time or the maximum length of time an inmate could remain inside the bathroom. There was a general policy at Ogdensburg CF that correction officers disperse any group of five or more inmates congregated in the rec yard if the inmates were not participating in an approved recreational activity, such as a baseball game. There was no policy regarding the number of times that the rec yard bathroom needed to be searched during a rec period. A rover would conduct random searches of the bathroom; if there was no rover present, it would be the responsibility of correction officers in the guard posts to observe the bathroom from their fixed posts.

The Court rejects claimant's testimony that he was assaulted with a metal weapon as not credible. The combination of claimant's lack of contemporaneous reporting of the use of a weapon and the Court's assessment of his demeanor while testifying leads the Court to conclude that claimant's assailants used their bare hands and feet to assault claimant.


This claim requires the Court to determine whether the State breached its duty to claimant to protect him from assaults by other inmates. As thoroughly discussed by the Court of Appeals, the scope of defendant's duty is defined by risks of harm that are reasonably perceived, i.e., foreseeable (see Sanchez v State of New York, 99 NY2d 247[2002]). The State is required to use reasonable care to protect inmates in its care and custody from the foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342 [1947]; Dizak v State of New York, 124 AD2d 329 [3d Dept 1986]), which includes providing "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985]).

Claimant's arguments in support of liability rest essentially and primarily upon two undisputed facts: (1) that the rec yard bathroom allowed multiple inmates to congregate without active supervision, and (2) that there was a similar prior assault in the rec yard bathroom. In essence, claimant seeks to import two distinct concepts from other areas of tort law into this claim. First, arguing strenuously that the prior assault put defendant on notice that an attack could occur in the rec yard bathroom, claimant presents an argument drawn from the law of landowner liability - that one who has notice of a dangerous condition and fails to cure it is liable for injuries proximately caused by the dangerous condition. Claimant's alternative argument is drawn from the law of products liability and defective design - that an item or structure was not properly designed in light of its intended use, and that the poor design was a proximate cause of injury. The flaw in these arguments is that neither the condition nor the design of the bathroom was the sole proximate cause of claimant's injuries - the injuries were sustained as a result of violent conduct by other inmates. Liability in inmate-on-inmate assault claims is determined by application of a different legal rubric.

Rather, as discussed above, defendant's duty of care does not arise unless the harm is within the class of foreseeable hazards that the duty exists to prevent. Foreseeability exists when defendant had actual knowledge of a risk to inmate safety, or when the State had constructive notice of such a risk, i.e. the State reasonably should have known that a risk existed (Sanchez, 99 NY2d at 255). Constructive notice of the risk of an inmate-on-inmate assault may be found based upon what the State 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" (id. at 254).

In this case, there was no actual notice to defendant of the pending assault on claimant because defendant had no actual knowledge that claimant would be attacked by his assailants, and even claimant lacked any reason to fear for his safety. Nor does a preponderance of the credible evidence demonstrate that defendant should have known of the threat to claimant's safety from Ogdensburg CF's knowledge of risks to inmates in the rec yard bathroom based upon its expertise or prior experience, or from its policies and practices designed to address such risks. While the assault on inmate Alequin in 1996 occurred in the same place and at the same time of day as the attack on claimant, these facts, without more, are insufficient to demonstrate that defendant should have known of a threat of a future assault in the rec yard bathroom. In particular, in the absence of any evidence regarding the security procedures and practices that were in place at the time of Alequin's assault, the Court cannot conclude that the circumstances of the Alequin incident should have led defendant to reasonably foresee future incidents. Moreover, the Court is unpersuaded by claimant's argument that defendant should have known that another inmate would be assaulted in the bathroom due to defendant's failure to adequately monitor the bathroom and the absence of security systems in the secluded bathroom. As discussed in greater detail below, there is no evidence that defendant's security in the rec yard that day or the bathroom design was in contravention of any law or of DOCS policies and practices. Claimant has therefore failed to demonstrate that defendant should reasonably have known that an assault was likely to occur in the rec yard bathroom from its policies and practices designed to address the risk of inmate-on-inmate assaults. Accordingly, claimant has failed to prove by a preponderance of the credible evidence that the attack was reasonably foreseeable.

However, even if this Court were to find that the attack was reasonably foreseeable, the inquiry would not end there, as foreseeability merely defines the scope of the duty of care owed to claimant (id. at 252-253). "A defendant stands liable in negligence only for breach of a duty of care owed to the [claimant]" (id. at 252). The duty to protect inmates within its care and custody does not "render the State an insurer of inmate safety" (id. at 253). The "State's duty to prisoners does not mandate unremitting surveillance in all circumstances" (id. at 256; see also Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]; Commisso v State of New York, UID # 2006-010-010, Claim No. 100981, Ruderman, J. [April 21, 2006]), and "liability cannot be predicated on the mere fact that [an] officer could not see claimant at the time of the attack" (Sanchez, 99 NY2d at 255, n 4).(2) Accordingly, defendant's liability turns on its negligence with respect to security measures needed to address the reasonably foreseeable risks of inmate-on-inmate attacks.

In this regard, claimant's assertions of negligence (to the extent such arguments are distinguishable from claimant's arguments regarding foreseeability) are that the State did not modify the bathroom after the prior attack and that there was inadequate supervision of the rec yard on the date of claimant's assault. The preponderance of the credible evidence at trial does not support such arguments. As discussed above, the evidence relating to the assault of inmate Alequin was sparse. Although the evidence demonstrates that the attack occurred and that there were certain similarities to the incident involving claimant, there was no evidence regarding security or staff assignments on October 5, 1996. Thus, although the bathroom structure may have remained unaltered following Alequin's attack, there is no evidence that permits the Court to find that defendant did not alter its security or inmate supervision in the yard in response to the prior incident. Indeed, the fact that Alequin's attack was followed by an absence of incidents in the bathroom for nearly three and a half years suggests that security and inmate supervision of the rec yard bathroom, despite its enclosed nature, was sufficient subsequent to 1996.

Nor does the preponderance of the evidence support a finding of negligent supervision at the time of claimant's assault. All three posts in the rec yard were manned, and there is no evidence that any of the correction officers abandoned their post, were unduly distracted by other events, or were otherwise neglectful of their duties. The mere absence of a rover in the rec yard does not support a finding of negligence in light of the evidence that determinations were made whether to assign a rover to the rec yard based upon the number of inmates in the rec yard during a given recreation period, and the lack of evidence that it was a deviation from practice or procedure to not assign a rover when there were 21 inmates in the rec yard. Although there was evidence presented regarding ongoing labor/management discussions about the security of the rec yard (Claimant's Exhibit 8), there was no evidence that the existing security and supervision of the rec yard in general or the bathroom in particular was inadequate or deficient. There was no evidence of a breach of any practice or policy relating to the several inmates' simultaneous occupancy of the bathroom. There was no evidence that Delgado, Perez or Hernandez had any history of inmate-on-inmate violence that may have required heightened security or supervision of them, and there was evidence that there was no prior relationship or threat of harm between them and claimant.

Claimant offered no controlling statutes, regulations, rules or policies that mandated that the interior of the rec yard bathroom be subjected to personal or electronic supervision. The testimony of claimant's expert, Gailor, that the design of the rec yard bathroom was deficient because it allowed a hidden space within which inmates could congregate in an unsupervised manner and that vision panels should have been part of the rec yard bathroom design to allow correction officers to observe what was occurring in the bathroom is, as discussed above, insufficient to demonstrate defendant's negligence. Moreover, in light of Gailor's lack of expertise in the area of the physical security of prison facilities, and the fact that his opinion was little more than a conclusion that could easily be reached by a lay finder of fact, his expert opinion is accorded little weight.

Claimant's reliance upon 9 NYCRR 7003.2 (c) and 7003.4 (a) for the proposition that defendant should have maintained an uninterrupted ability to orally communicate with inmates in the rec yard bathroom is unavailing. First, these regulations are applicable to county, not State, correctional facilities. Moreover, even if these regulations may be used to demonstrate a standard of care upon which to evaluate the conduct of State correctional officials, the Court of Appeals has recognized that unremitting surveillance of inmates is not mandated in all cases under the State's duty to protect inmates within its care (see Sanchez, 99 NY2d at 256). In any event, and as noted above, the lack of proof of assaults in the rec yard bathroom for a period of almost three and a half years allows an inference that despite the "private" nature of the bathroom, defendant's practices with regard to supervision of the rec yard and the bathroom were reasonably adequate to protect claimant against an inmate-on-inmate assault in the bathroom.

Because the Court has found that claimant's assailants did not use a metal weapon, and because there was no proof that his assailants secreted a weapon on their bodies or in the bathroom, any evidence or argument relating to the lack of a metal detector at the entrance to the rec yard is immaterial to a determination of liability.

In sum, the fact that claimant was assaulted by other inmates while in defendant's custody and care does not necessarily render the State liable for the injuries he suffered. The Court finds that the preponderance of the credible evidence at trial fails to demonstrate that the attack on claimant was foreseeable, and that even had it been established that the attack was foreseeable, claimant failed to prove that defendant was negligent in its supervision of inmates in the rec yard at the time of claimant's assault. Accordingly, the claim must be dismissed.


It is the conclusion of this Court that defendant is not liable to claimant for his injuries, and the claim must be dismissed. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions or objections not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.

December 21, 2007

Albany, New York


Judge of the Court of Claims

1. At trial, the Court reserved decision on claimant's hearsay objection to defendant's Exhibit DD, which is a certificate of accreditation issued by the Commission on Accreditation for Corrections and the American Correctional Association. The objection is now sustained on the ground that the exception to the hearsay rule embodied in CPLR 4518 is inapplicable because the Records Inmate Coordinator at Ogdensburg CF is not qualified to certify a record prepared by an outside entity.

2. These statements in Sanchez dovetail with this Court's discussion that the mere facts of a prior attack in the bathroom without active interior surveillance does not, alone, provide a basis for liability. Imposing liability because an incident previously occurred in the same unobserved location would create essentially strict liability for every subsequent assault at a specific location where there had been a prior attack because few, if any, inmate-on-inmate assaults take place within the direct sight of COs.