New York State Court of Claims

New York State Court of Claims

BENNETT v. THE STATE OF NEW YORK, #2007-044-017, Claim No. 110535


In claim for negligent supervision and inadequate staffing in inmate-on-inmate assault, claimant's expert testified that the assault was not foreseeable as to claimant himself, although it was foreseeable generally with regard to all inmates in a maximum security facility in a congregate setting. Because claimant was required to prove that the risk of harm was foreseeable specifically as regards the claimant, claim was dismissed

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on September 21, 2004 by a fellow inmate due to inadequate staffing and negligent supervision by the Department of Correctional Services (DOCS) at Elmira Correctional Facility (Elmira). Trial of the matter was bifurcated and held in the Binghamton District on April 3-4, 2007. This decision addresses only the issue of liability.

Claimant was lying on his back lifting weights in a fenced-in area of the recreational yard at the time of the attack, which occurred at approximately 9:10 p.m. He testified he is legally blind in his right eye (on cross-examination it was revealed that he has no peripheral

vision in that eye due to a childhood injury), and was focusing on the weights rather than on what was happening around him. He felt a punch on the left side of his face and tried to put the weight bar back on the rack, but felt pressure pushing down on the right side of the bar. He was struck under the chin and in the face and eye, and then slashed by a weapon across his face and head. He had blood in his eyes from the laceration, which when combined with his visual impairment left him unable to see his attacker(s). However, he believed there were at least two assailants. He finally got the weight bar back in the rack and got up, but still couldn't see. He tried to leave the weight area and tripped over some weights, and then someone jumped on his back. He then felt a cut from the front to the back of his head.

As he continued to try to leave the weight area, claimant encountered an inmate named Sabbath Simmons. Believing that Simmons was his assailant, claimant attacked him. Correction officers responded and instructed claimant and Simmons to stop fighting. Claimant testified that it took approximately 2 to 2 ½ minutes for the officers to respond after the initial assault, and that the response was approximately 45 to 60 seconds after he commenced the altercation with Simmons. Claimant also testified that he later learned that contraband, in the form of a sheath for a weapon, was found in Simmons' pocket. However, claimant testified both at Simmons' Tier 3 disciplinary hearing[1] and at trial that he never saw the person who initially attacked him, and simply assumed Simmons was the assailant when he encountered him.[2]

Claimant also testified regarding his observations of the scene of the attack and the locations of the correction officers immediately prior to his assault. He said that he had been assigned as the “inmate click-click photographer” for the facility,[3] so he had picked up a camera from a correction officer (CO) at the south guard shack in the recreation yard, and after finishing his duties he returned the camera to the field house (a building adjacent to the ball park). He then returned to the ball park and went into the weight area. There were no COs in the weight area, which was an area located adjacent to the wall of the field house, and fenced off with razor wire from the rest of the ball field, with only one entrance/exit. The weight area was approximately 100 feet long and 30 feet wide. He said that there were between 65 and 80 inmates in the weight area when he entered it. He further stated that this number of inmates in the weight yard was normal for the C-Block exercise period. He had been using the weight area three to four times per week for approximately six to eight months prior to the assault. He said that the fewest number of inmates he had ever seen in the weight area was approximately 20, and that normally there were between 50 and 60 inmates exercising there.

At a security post (guard shack) at the northeast end of the ball field, claimant observed “approximately around two to four”[4] COs. He said he noticed this because it was near the location where he had taken the photos prior to returning the camera. He also saw several COs in the south guard shack, which was the post closest to the location of his assault, but did not know the precise number. He testified that there was also a guard stationed inside the door from the ball field into the adjacent field house.

CO Robert Truax testified at trial that he was on duty at the time of the assault. He was stationed at the south guard shack. He said that there was one officer at the northeast guard shack and one at the northwest guard shack, one officer (himself) and one sergeant at the south guard shack and one officer at a guard shack at the southwest corner of the field. He stated that there were also two other officers on duty at ground level, and they were conducting “go-back” activities, returning inmates to their cellblocks. Truax maintained the logbook, which indicated that there were 117 inmates in the yard at 9 p.m. In addition to the posts on the ground, there were two elevated towers, one at the northeast end of the field and one at the southeast end of the field, close to the weight area. Each of the elevated towers had a guard in it, whose responsibility was to assist in observing the recreation area, as well as to observe other portions of the prison grounds visible from the towers. Truax said that DOCS' policy is that those officers would remain in the towers in case of any problem.

Shortly after 9:00 p.m., Truax said he left the south guard shack to go to the adjacent field house and noticed the altercation between claimant and Simmons as he passed the weight area. He said that there were no other inmates within 5 to 10 feet of claimant and Simmons. He ordered them to separate, but they continued fighting. He testified he waited for assistance, which arrived in a few seconds in the forms of Officers Hogan and Richards, and the officers physically separated the combatants. He said he waited for assistance because he did not know if the inmates had weapons or if this was some kind of diversion to distract the officers from some other illicit activity, as he had seen such situations occur frequently in the past.

Truax knew claimant prior to this incident because of claimant's job as the inmate click-click photographer. He said there was no reason to believe that either claimant or inmate Simmons would be troublesome or high risk, and that there was no indication that any assault would occur prior to that time. He did state that there were only 7 or 8 inmates in the weight area at the time of the altercation, and that he had never seen 65 inmates in the weight area during his time at Elmira (although it would be possible to fit that number of people in the area). He also testified that in his 14 years of guarding the recreation area, it was his experience that inmates did not congregate or “hang around” in the weight area.

CO Richards also testified. He was stationed at the door to the field house at the time of the incident. He believed there were 9 or 10 officers in the yard at the time of the incident, although he did not recall who they were or where they were stationed. Richards responded to the altercation between claimant and inmate Simmons and assisted in breaking up the fight. He stated that his observations indicated that usually there were approximately 50 inmates exercising in the weight area. He did not testify regarding the number of inmates in the weight area at the time of the incident. He said he also knew claimant because of his photographer duties, and had no reason to believe that he would either cause problems or be likely to be assaulted.

Sergeant William Ashton testified as well. He observed claimant and Simmons fighting, but did not see the start of the altercation. He said that the number of inmates in the weight area was minimal at that time, approximately 10 to 15 at the most. He said that the recreation area was not short-staffed that night, nor was there any reason to believe that there would be an assault or that claimant would be in danger. He had no recollection of any prior assaults in the weight area, and also stated that in his experience the inmates did not tend to congregate there.

Robert DeRosa, a licensed private investigator previously employed by the New York City Department of Correction (NYCDOC) for 26 years, offered expert testimony on behalf of claimant. DeRosa served as warden of the Anna M. Kross Detention Center for Men at Rikers Island and as compliance chief for the NYCDOC before his retirement from the agency in 1995.

DeRosa offered his opinion as an expert in penology and security that the New York State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries, promulgated for local correctional institutions, are relevant in establishing a reasonable standard for the operation of any prison within the State (see 9 NYCRR 7000 et seq). He contended that Section 7003.2, which refers to the standard of active supervision of inmates in activities outside the housing unit, should be applied to Elmira's recreation area even though that section pertains to local, rather than State, facilities. Section 7003.2 defines active supervision to mean that inmates should have an uninterrupted ability to communicate with staff without the aid of any amplifying device; supervisory visits should be conducted at 30-minute intervals; and the staff should be able to immediately respond to emergency situations. DeRosa stated that he reviewed the security post job descriptions for the recreation yard. He opined that the required level of supervision of the inmates as set forth in those job descriptions was the same as the definition of “active supervision” in Section 7003.2. He also testified that DOCS records show that recreation areas constitute the second most frequent location for inmate-on-inmate assaults (the first being the cellblocks), and that Elmira had a relatively high incidence of such assaults among the State's maximum security facilities.

DeRosa testified that, in his opinion, DOCS' operation of the weight area at Elmira was not consistent with the general principles of penology. He opined that the COs' locations at their fixed posts in the various guard shacks were too far away from the weight area to effectively conduct both appropriate supervision and the emergency response required under both section 7003.2 and the security post job descriptions.[5] Moreover, he questioned the COs' ability to see into the weight area, given the distance and potential line-of-sight issues. He said that the COs were not in a position to thwart a reasonably foreseeable attack. He also stated that having a CO posted in the weight area would have been the only way to reduce the risk of attack under these circumstances, but he conceded that this would not have eliminated that risk. Finally, DeRosa said that this particular attack was reasonably foreseeable in his opinion, given the high incidence of assaults in recreation areas at maximum security facilities.

On cross-examination, DeRosa admitted that he was not aware of any regulation mandating certain distances between guard posts and inmate recreational areas. He also said that the differing testimony regarding the number of inmates in the weight area (i.e. 65 to 80 according to claimant and 8 to 10 according to Officer Truax) would not change his opinion that a guard should have been posted in the weight area in order to maintain effective control, as the distances from the guard shacks to the weight area were too great regardless of the number of inmates in that area. DeRosa acknowledged that he had never been to Elmira, and was relying on descriptions and pictures in forming his opinions.

When questioned by defendant's attorney as to whether this particular assault was foreseeable, DeRosa testified that the assault was not foreseeable as to claimant himself, but that an assault was foreseeable generally with regard to all inmates in a maximum security facility in a congregate setting. He opined that the statistics indicating that assaults occur in group settings in maximum security facilities supported this opinion.

Superintendent John Burge, Sr., the current superintendent at Elmira, testified as an expert in the field of penology on behalf of defendant. Prior to his testimony, claimant's attorney made an oral motion to exclude Burge's testimony on two grounds. First, he contended, Burge's work relationship with the correction officers called to testify and who were involved in this incident would cause him to be biased. Second, it was his opinion that the witness would be unable to articulate the basis for his opinions, and in fact such opinions might be based on inadmissible evidence. The Court denied the motion, holding that the issue of potential bias could be explored on cross-examination, and that if any bias was established, that would go to the weight the Court would give Burge's testimony. The Court further noted that an expert witness is not required to testify on direct examination regarding the basis of his opinions, but that the issue could be explored on cross-examination, and that a motion to strike the testimony could be made if necessary.

Burge testified generally regarding security and staffing, particularly with regard to the recreation facilities at Elmira. He stated that DOCS' central office in Albany establishes guidelines regarding staffing, and that the facility is given a “plot plan” that specifies staffing by shifts. He also said that security post position descriptions are also prepared in Albany, and are based on staffing levels.

He said that he had been stationed at Elmira for approximately 18 years of his career, and was very familiar with the weight area. He stated that his review of the records indicated that the recreation yard was adequately staffed that night, with all posts filled. He said that he gave consideration to the locations of the guard posts in stating that the yard was appropriately staffed, and emphasized that the locations of the tower (the towers are fixed posts staffed 24 hours per day) adjacent to the weight area supported this opinion. He said a tower officer is positioned to be better able to see what is occurring throughout the facility, and the officer can alert guards on the ground by phone, speaker or bullhorn, or can let off a warning shot, and can even incapacitate an inmate if necessary.[6] Moreover, he said that in his experience the weight area was not a location with a high risk of assault, because the inmates appreciated the privilege of being able to use the weights and did not want to risk having that privilege removed.

Burge confirmed that there is no regulation or requirement specifying maximum distances between guard posts and locations in the recreation yard such as the weight area. He also said that the response time of 45 to 60 seconds after claimant attacked inmate Simmons was reasonable under the circumstances. He also noted that an assault by a razor is virtually undetectable unless a guard is looking directly at the perpetrator involved. The fact that such an assault can easily occur simply with the swipe of a hand as one inmate passes by another makes a razor a favorite weapon in prisons. Finally, Burge said that there was no indication prior to the incident that this assault would occur, and that it was not reasonably foreseeable.

The State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, 112 AD2d 562 [1985]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and which the State could have prevented (see Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see also Flaherty v State of New York, 296 NY 342, 347 [1947]).

In this instance, the uncontroverted testimony of all witnesses, including claimant's expert, was that the assault was not foreseeable as to claimant himself. The only testimony which vaguely attempted to establish foreseeability (whether through constructive or actual notice) was that of claimant's expert, who opined that assaults are as a general matter reasonably foreseeable in recreation areas of maximum security facilities where inmates congregate. This is clearly inadequate to establish that defendant had any notice whatever that claimant was at risk of attack. Under this theory of liability, defendant would be rendered a de facto insurer of inmate safety in nearly every part of a maximum security facility, as the statistics cited by claimant indicate that assaults occur throughout such facilities.

Claimant having failed to meet the required burden of proof that the assault upon him was reasonably foreseeable, Claim No. 110535 is hereby dismissed.

All other motions on which the Court previously reserved or which were not previously determined at trial are hereby denied.

Let judgment be entered accordingly.

July 16, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Simmons' disciplinary transcript also indicates that Simmons said at the time that he was physically unable to have been claimant's assailant, because he had injured his hand while working in the mess hall, cutting it to the bone, and had stitches.
[2]. At this point, claimant requested permission to amend the claim to revise the allegation that Simmons was his primary assailant to indicate that claimant's assailant or assailants were unknown. The Court granted this request.
[3]. The “inmate click-click photographer” is an inmate designated by the facility to take photographs of other inmates to send to their families and friends.
[4]. All quotes are taken from the Court's recording of the proceedings, unless otherwise indicated.
[5]. The parties stipulated that the distance from the northeast guard shack to the northern fence of the weight area was 66 feet. The parties also stipulated to measurements of the dimensions of the field and the locations of the other shacks and the entrance to the field. No stipulation was made regarding the distance from the southeast guard tower to the weight area.
[6]. Burge said he had been a tower officer in the course of his career with DOCS.