New York State Court of Claims

New York State Court of Claims

CARDONE v. THE STATE OF NEW YORK, #2008-013-509, Claim No. 108647


Defendant found liable for an assault on Claimant, a visitor, by an inmate in the visiting room at Elmira Correctional Facility.

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 of the State of New York
BY: JOSEPH P. ROMANI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1] 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).[2]

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 room.

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,[3] responding 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. 127-129).[4]

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 staffing.[5]

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 New York, 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 York, 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, Mignano, J[6]; Leibach v State of New York, 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 concluded.

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 second assault.

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 Claimant.

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 less.

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.
Thus, I find the Defendant answerable in damages for the injuries sustained by Claimant in the second assault which occurred on October 24, 2002.

A conference to set a timetable for the completion of pre-trial discovery relating to damages and setting a trial date will be scheduled under separate cover.

All motions not heretofore ruled upon are now denied.


September 30, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]While the Defendant maintains that Claimant attempted to kick Inmate Maisonet as he was being escorted out of the room, the videotape (Exhibits 1 and A are duplicate copies of the original four-panel videotape, albeit each with slightly different degrees of clarity), as well as a clear reading of Claimant’s trial testimony, does not support that assertion. I find that she attempted to kick him only when he was initially being subdued, not when he was removed from the room after the second assault.
  2. [2]The videotape, while of assistance in depicting Inmate Maisonet being removed to the wall, and thereafter being escorted from the area, does not show either of the assaults.
  3. [3]At the time of the trial Correction Sergeant Sullivan had been promoted to Lieutenant.
  4. [4]The proof in this case is that the correction officers in charge of the visiting area are not allowed to carry handcuffs of any design, and only then Sgt. Sullivan carried them.
[5]. Any putative requests by officers for additional staffing of the visiting room is not probative, and certainly do not establish, in and of themselves, any measure of what level of staffing is adequate or inadequate.
  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at