This timely filed claim arises out of two separate assaults upon Claimant
Jacinda Cardone on October 24, 2002, during her visit to her then boyfriend who
was incarcerated at the Elmira Correctional Facility. The visiting room area
where the assaults took place is described as containing thirty-five tables
divided into nine rows labeled “A” to “I. ” Each row,
except for “G”, has four tables in it. Row “G” has
only three tables since the area in the front of that row is set aside as the
location where photographs can be taken of the inmate and his visitor(s).
In the front of the room is the desk where the correction officer assigned to
supervise the area is seated. Just to the officer’s back is an intercom
with two buttons: one directed to the “control” room and the other
to the “frisk” room. Prior to an inmate’s entry into, and
upon his departure from, the visiting room he must pass through the frisk room.
In the frisk room another correction officer searches the inmate for contraband,
both as he enters and leaves the visiting area.
In addition to the two-button intercom, the correction officers are also
equipped with radios which have a pin that they can pull in the event of a
problem. Pulling the pin requires an immediate response and they are unable to
utilize the intercom system. The alert is sent to the arsenal where the
personnel respond to the specific location of the officer who has triggered the
alert. According to the testimony at trial it generally takes anywhere from 30
to 90 seconds for a response that would include a minimum of five correction
officers to respond (Transcript, pp. 58 to 61). In the instant circumstance,
the closest officer who could (and did) respond first was located in the frisk
room, as it is adjacent to the visiting room. That officer could also use the
intercom if he had time.
Claimant had frequently and regularly visited her boyfriend, Inmate Robert
Rigdon, on prior occasions, all apparently without incident. On this occasion,
after having been searched and cleared, she proceeded to the visiting room. She
had been permitted to carry on her person anti-anxiety medication since she had
been diagnosed as having bipolar, panic and anxiety disorders. During the visit
she stated that she began to sense that she was about to have an anxiety attack
and she went to the restroom to take her medication. As she exited the restroom
she “bumped” the wife of another inmate, whom she later learned to
be one Lisa Maisonet. Apparently there were words exchanged between the women,
with Lisa Maisonet allegedly threatening to “kick” Claimant’s
“ass” once they left the facility. To the best of her recollection,
Claimant retorted by telling Mrs. Maisonet, to take her “ghetto ass”
back to the ghetto. She stated that she denied ever using a derogatory or
pejorative ethnic term.
Correction Officer (CO) William VanHorn, who was supervising the visiting area
on this day, heard the verbal give and take and warned both of the women to
stop or they would be removed from the facility. In any case Mrs. Maisonet
apparently spoke to her husband about the incident and, as he and his family
were returning from the area where an inmate can be photographed with his
visitor(s), Inmate Maisonet went to Inmate Rigdon and threatened him. It is not
clear on the record as to how soon after Maisonet issued this threat he
apparently returned to the table where Claimant was sitting and from behind
began to punch her about the head.
During the visiting period on this day, the visiting area was supervised by a
single correction officer, CO VanHorn. The visiting room officer assigns the
tables to the inmates and their guest(s) and they sit facing him at all times
during the visit so that he is able to monitor their actions. While the
visiting room officers carry batons, they are not permitted to carry handcuffs.
The frisk room was adjacent to the visiting area, and on the day of this
incident was under the supervision of CO Earl Schnautz.
Once Inmate Maisonet started to strike Claimant, CO VanHorn immediately alerted
CO Schnautz of the attack by intercom and contemporaneously pulled the pin on
his radio. He then went directly to Inmate Maisonet, placed him in a bear hug
from behind, and then picked him up and moved him to the back wall of the
visiting room. Claimant was close behind, attempting to kick Inmate Maisonet
but was not sure if she had succeeded.
Inmate Rigdon had been ordered to a column where he remained. While the
visiting room is equipped with four video cameras, the assault is not depicted
on the videotape (the four-panel display shows simultaneous recordings from each
of the four cameras), nor is one able to observe the area where Claimant and
Inmate Rigdon were seated (Exhibits 1 and A).
In fact, little pertinent to this claim is clearly visible on the videotape,
but one is able to see CO VanHorn moving Inmate Maisonet toward the back wall of
the visiting room and someone, presumably Claimant, attempting to kick someone.
CO VanHorn described Inmate Maisonet as struggling to break free and resisting
his attempt to move the inmate away from the area of the attack. This
resistance was so forceful that CO VanHorn at some point in the fracas suffered
a dislocated jaw.
Claimant returned to her seat, and CO Schnautz joined VanHorn and Inmate
Maisonet at the rear wall of the visiting room. CO Schnautz did not witness the
inmate’s initial assault on Claimant, and by the time he entered the room,
CO VanHorn had already pinned Maisonet against the wall and he was offering no
resistance. In fact, both correction officers testified that Inmate Maisonet
stated that he gave up, stopped his resistance and placed his hands on the wall.
CO Schnautz then took control of Maisonet and started to escort him from the
Both officers stated that they had been trained in the use of force in dealing
with inmates and agreed that their training emphasized the use of reasonable
force in subduing and/or escorting an inmate involved in an altercation. The
degree of force was governed by each officer’s experience, training and
evaluation of what was necessary to protect himself and, in this instance, the
other inmates and guests in the room.
Officer Schnautz stated that he had not discussed with VanHorn what had
occurred and knew only that there had been a fight in the visiting room. He saw
VanHorn at the rear of the room holding an inmate against the wall and saw that
the inmate did not appear to be resisting any longer. Schnautz then took charge
of Maisonet and testified that he was sure that, while escorting him out of the
room, he had his hand on the base of Maisonet’s back or just touching his
belt. Officer VanHorn stated that he had his hand on Maisonet’s arm.
The portion of the videotape (Exhibits 1 and A) showing the two correction
officers escorting Maisonet back down the aisle does not clearly show
Schnautz’s hand or its location on the inmate. The videotape shows CO
VanHorn, but instead of being next to the inmate, he appears to be behind both
Maisonet and CO Schnautz and not in a position to have placed his hand on the
inmate’s arm. As previously noted, the videotape is not of the best
quality and it was difficult to clearly see what was transpiring. Moreover, the
videotape shows only a limited area of the visiting room, so it is quite
possible that at some point both officers had contact with Maisonet as he was
being taken off (or released from) the wall for the purpose of escorting him
from the room.
The videotape, however, does not show Maisonet breaking away from the officers
as he was being escorted from the room, nor does it show his second attack of
Claimant, striking her several times before he was again restrained by the
officers who then took him to the ground. At approximately the same time this
occurred, then Sgt. Judd Sullivan,
to the alert triggered by VanHorn’s prior pulling of the pin, entered the
room and saw Schnautz holding Maisonet in a bear hug, trying to control him,
which according to Sgt. Sullivan was not going well. Eventually the three of
them fell to the floor, and while Sgt. Sullivan was on top of Maisonet he was
able to put handcuffs on him (Transcript, pp.
It is noted that CO VanHorn stated that if he had been in possession of any
mechanical restraints he would have applied them to Maisonet when he had him
against the wall after the first assault ( Exhibit 2, p. 30). He went on to
state that since the inmate was no longer struggling, the force that he and CO
Schnautz employed to escort Maisonet out of the area was appropriate under the
circumstances then prevailing, since he appeared to have calmed down. Officer
VanHorn stated that neither he nor Schnautz anticipated or foresaw that Maisonet
would attack Claimant a second time.
I conclude based on the record that, as it pertains to the first assault, the
Defendant is not culpable since it was a spontaneous event, not reasonably
foreseeable and at that point there existed no special relationship between
Claimant and Defendant. The staffing of the visiting area was in my opinion a
purely governmental function for which the Defendant is immune from liability.
The Defendant’s response to this first attack was immediate, was
appropriate and was clearly within the guidelines and training of the
Defendant’s personnel. VanHorn alerted Schnautz by intercom as soon as the
assault on Claimant occurred and pulled the pin on his radio to bring in Sgt.
Sullivan and other officers to help gain control of a volatile situation.
Moreover, any inference implied by the Claimant of inadequate staffing of the
visiting room because only one officer was so assigned, must be rejected at the
least because there is no evidentiary support therefor, let alone expert
penological opinion of what constitutes adequate
It is settled law that the State has the responsibility to protect others in
the operation of its institutions (Dunn v State of New York
, 29 NY2d
313). The State’s operation of its institutions is a governmental
function, and it is therefore immune from liability resulting from
administrative decisions such as the level of staffing (Crawford v State of
, 60 AD2d 729, affd
47 NY2d 884). However, as a landowner
the State is subject to the same rules of liability as a private landowner
(Miller v State of New York
, 62 NY2d 506). That duty includes
protecting the public from foreseeable risks including assault (Sebastiano v
State of New York
, 112 AD2d 562). The State is not an insurer of members of
the public who enter its institutions, and the mere happening of an accident
does not give rise to an inference of negligence (Mochen v State of New
, 57 AD2d 719). The Defendant argues, and I agree, that the State
“does not have the duty to provide unremitting supervision unless it has
some notice that a particular location or procedure within a correctional
facility creates an unusually dangerous situation . . .” (Rosario v
State of New York
, Ct Cl, UID 2002-029-233, Claim No. 100086, Oct. 23, 2002,
; Leibach v State of New
, 215 AD2d 978).
My analysis and assessment of the Defendant’s putative liability for the
first altercation/assault between Claimant and inmate Maisonet is thus
However, I find that the Defendant failed to take the appropriate steps to
prevent the second assault, and it bears full responsibility and liability for
that assault. As the record unequivocally shows, this was not a continuing or
ongoing event, but in fact two discrete events. I find that there was in fact
a special relationship created between Claimant and Defendant prior to the
second assault, the breach of which results in the total liability of the
Defendant for the injuries she sustained during that altercation.
The elements of a special relationship consist of: (1) an assumption by the
Defendant, through promises or actions, of an affirmative duty to act on behalf
of a party who was injured; (2) knowledge on the part of the Defendant’s
agents that inaction could lead to harm; (3) some form of direct contact between
the Defendant’s agents and the injured party; and (4) the injured
party’s justifiable reliance on the Defendant’s affirmative
undertaking (Cuffy v City of New York, 69 NY2d 255, 260; Shinder v
State of New York, 62 NY2d 945, 946).
The record establishes that Claimant sustained her burden of proof in
establishing each of the criteria set forth above.
In this case the Defendant, by the action of CO VanHorn in the first instance
of removing Maisonet by force from the first assault on Claimant, without
question, created an affirmative duty to protect her from exposure to another
assault and further injury. Clearly, CO VanHorn knew or should have known that
inaction could lead to greater harm to Claimant, especially after he had
sustained a dislocated jaw in the course of the first incident. When the
officer seized the assailant and forced him to the wall, there was the requisite
showing of direct contact with the Claimant, within the meaning of this third
necessary element to establish the special relationship. Finally, I do not
believe it can be seriously argued that the Claimant, Ms. Cardone, was not
relying on the Defendant’s affirmative actions to keep her safe from a
While the Defendant has correctly argued that the State does not have the duty
to provide unremitting supervision, it is clear in the claim at bar that the
Defendant was on notice that an unusually dangerous situation existed, overtly
demonstrated when CO VanHorn sounded an alert and pulled the pin seeking
immediate assistance after Maisonet’s first assault (see Rosario
v State of New York, Ct Cl, UID 2002-029-233, Claim No. 100086, Oct. 23,
2002, Mignano, J, supra).
The failure by the Defendant’s employees to use the appropriate
force/restraint when removing Inmate Maisonet from the visiting room, or to wait
until other correction staff arrived so that he could be properly restrained and
then removed, clearly was a breach of its duty of care to Claimant. As CO
VanHorn averred in his deposition and reconfirmed at trial, he would have used
handcuffs to restrain Maisonet before he attempted to remove him from the room.
When CO Schnautz arrived there is nothing in this record that shows he ever
inquired of VanHorn regarding the facts that led to Maisonet being forced
against the back wall. Schnautz was unaware of any of the facts which spiked
the inmate’s anger or of Claimant’s words to Lisa Maisonet, the
inmate’s wife, nor of the spontaneous ferocity of that first assault on
Also unknown to him was the forceful resistance by the inmate to
VanHorn’s attempt to control him and the dislocated jaw caused by his
combativeness. The fact that Maisonet appeared to have stopped struggling, and
stated that he had enough, did not warrant, in my opinion, the level of
restraint (or more accurately, the lack thereof) employed by correction officers
in removing him from the room. The videotape, as difficult as it is to see with
clarity, shows that VanHorn appears not to have been in a position to restrain
the inmate, since he was behind both Schnautz and Maisonet and was not at the
inmate’s side. Schnautz appears only to be guiding him and not
affirmatively holding on to him in any way.
With the pin having been pulled, and knowing that additional correction
officers would be there in a minute or less, including a sergeant equipped with
handcuffs to properly restrain the assaulter, leads me to conclude that the
rationale expressed by the Defendant for the immediate removal of Maisonet is
flawed. Indeed, it seemingly invited the second assault: to wit, the path used
by the officers to escort Maisonet out of the visiting room brought him directly
past the table where Claimant was seated. There is no proof in this record that
anyone in that visiting room was going to try to inflame the situation to create
further chaos. To the contrary, the videotape and the proof at trial establish
that no third person was attempting to assist the inmate. It is clear that the
people in that room, and certainly the inmates, knew that there would be an
influx of at least five correction officers who would be there in a minute or
I am not unmindful or so naive as to be unaware of the risk of an escalation of
tensions in some circumstances such as these, but, as stated at trial, inmates
look forward to visitation with friends and family and as a general rule would
not risk the loss of this privilege. Moreover, there is no evidence to support
Defendant’s insinuation that Claimant knew or should have known that the
visiting room was “potentially volatile,” a seeming anomaly when it
also notes, in attempting to demonstrate unforeseeability, that the visiting
room has had very few occurrences of assault and this was the only time a
visitor was assaulted.
Consequently, I find that the Defendant was on notice of an unusually
dangerous situation which implicated Claimant Jacinda Cardone’s safety and
required a greater degree of supervision and care in removing the assailant from
the area. Claimant has established each of the elements of a special
relationship (Cuffy v City of New York, 69 NY2d 255, supra), and
that the Defendant has breached its duty toward her. Claimant engaged in no
culpable conduct of her own with respect to the second assault.