New York State Court of Claims

New York State Court of Claims

ROUSE v. THE STATE OF NEW YORK, #2008-009-188, Claim No. 108173


Synopsis


Claimant sought to recover damages for [personal injuries suffered by him in an inmate-by-inmate assault at Elmira Correctional Facility. The Court found that claimant failed to establish that defendant had either actual or constructive notice of a foreseeable risk of harm to claimant and further found that claimant failed to establish a lack of supervision in the area where the assault occurred, and dismissed the claim.

Case Information

UID:
2008-009-188
Claimant(s):
CLARENCE ROUSE
Claimant short name:
ROUSE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108173
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
GAMIEL A. RAMSON, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: James E. Shoemaker, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
August 21, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this claim, claimant seeks to recover damages for personal injuries suffered by him when he was assaulted by another inmate on August 26, 2001 at Elmira Correctional Facility (“Elmira”), where he was then incarcerated. Claimant contends that the defendant had both actual and constructive notice of a foreseeable risk of harm to him prior to this incident, and further contends that there was inadequate supervision of inmates by the defendant in the gymnasium at the time and place of this assault.

At trial, claimant testified that prior to this incident, he had previously been incarcerated at Elmira when he was attacked by another inmate on December 20, 2000.[1] Following the assault of December 20, 2000, claimant testified, he was transferred to Upstate Correctional Facility, but was then transferred back to Elmira on August 7, 2001, less than eight months after the prior assault. Claimant testified that during his intake interview at Elmira on August 7, 2001, he asked the intake officer why he was being returned to Elmira, since he had been recently subjected to an assault at that facility. He testified that this officer then responded that he (claimant) would not be at Elmira if he did not belong there.

Claimant then testified that approximately three weeks later, on August 26, 2001, he was in the gymnasium at approximately 9:40 p.m. when he was attacked from behind and stabbed in the face by an inmate, whom he did not know at the time. This inmate was identified as Steven Butterfield. As a result of this assault, claimant was left with a four-inch scar which starts at his left temple and runs down to his cheek. Claimant further testified that he cannot close his left eye completely, and that he now needs to wear glasses as a result of this assault. He is also required to take medication (Neurontin) and he suffers from left-side facial paralysis with accompanying numbness and pain.

Claimant acknowledged at trial that prior to this incident, he did not know inmate Butterfield, and had no idea why inmate Butterfield would perpetrate this assault against him. Furthermore, when pressed, claimant testified that he did not believe there was any connection between inmate Butterfield and inmate Richard Hidalgo, the inmate who attacked him in the prior incident of December 20, 2000.

Correction Officer Jeffrey M. Waite testified that he was a recreation officer at the facility, assigned to the gymnasium area, and that he was working there at the time of this incident. He testified that he actually observed inmate Butterfield strike claimant and that he responded immediately to the attack and separated the two combatants. He did not recall that any weapon was used by inmate Butterfield in this assault, and there was no weapon recovered following the incident.

With regard to liability, 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).

Claimant contends in this claim that the State had both actual and constructive notice of a reasonable and foreseeable risk of harm prior to this incident, based upon the assault which occurred on December 20, 2000. Claimant relies upon his notice of intention to file a claim for personal injuries occurring in this prior assault, which was served upon the Attorney General on or about February 6, 2001, as providing actual notice to the State of the prior assault. Additionally, as previously indicated, claimant testified that he advised his intake officer of this prior assault when he was returned to Elmira on August 7, 2001. Despite this actual notice of the prior assault, claimant contends that defendant was negligent in returning him to the general population at Elmira in August, 2001.

In this Court’s opinion, it is significant that no testimony was adduced to establish any connection whatsoever between the prior assault involving inmate Hidalgo on December 20, 2000, and the assault occurring on August 26, 2001 by inmate Butterfield, which forms the basis of this claim. Claimant himself testified that he did not believe there was any connection at all between these two inmates, and that the two assaults were not related. Additionally, there was no testimony or any other evidence at trial to suggest that the State had any reason to know that inmate Butterfield was prone to perpetrating an assault.

Since there is no indication that the assault of August 26, 2001 by inmate Butterfield was related in any manner whatsoever to the prior assault of December 20, 2000, the Court finds that the prior assault, standing alone, is insufficient to establish that the State had notice of a reasonable foreseeable risk of harm to claimant.

Claimant further contends that the State had notice of a foreseeable risk of harm based upon a prior altercation which occurred in the gymnasium at approximately 7:30 p.m. on August 26, 2001, approximately two hours and fifteen minutes prior to the assault against claimant by inmate Butterfield. Neither claimant nor inmate Butterfield were involved in this altercation. Also, there was no testimony or any indication to suggest that the two incidents occurring on August 26, 2001 were related in any manner. Claimant did not testify that he was present in the gymnasium at the time of the prior incident, nor did he testify that his assault was the result of any retaliation for this prior altercation.

Accordingly, the Court finds that the prior altercation, even though it occurred on the same date and in the same location, was completely unrelated to the assault forming the basis of the instant claim, and is therefore insufficient, in and of itself, to establish notice of a reasonable foreseeable risk of harm to claimant.

Finally, claimant also contends that there was a lack of supervision in the gymnasium area at the time of his assault, and that there should have been 10 correction officers assigned and stationed at their respective posts in the gymnasium at the time of the assault. Aside from claimant’s testimony, however, there was no evidence to establish that the gymnasium area was improperly or inadequately supervised, or any evidence to suggest that the State failed to respond to this incident in a timely manner. On the other hand, Correction Officer Waite testified that there were 10 officers assigned to the gymnasium and outdoor recreational area at the time of the assault. Additionally, as previously indicated, he actually witnessed inmate Butterfield strike claimant, at which point he immediately intervened.

Based upon the foregoing, therefore, the Court finds that claimant has failed to prove, by a preponderance of the evidence, that defendant had either actual or constructive notice of a foreseeable risk of harm to claimant prior to the assault by inmate Butterfield occurring on August 26, 2001. Accordingly, this claim must be and is dismissed.

Any motions not heretofore ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


August 21, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Based on injuries suffered in the assault of December 20, 2000, claimant filed a claim (Claim No. 105168) for damages alleging negligence against the State. Claim No. 105168 was also tried on the same date as the instant claim, and a decision was filed on September 2, 2008.