Labor Law §200 and §241(6) [alleged violation of Industrial Code §23-1.8(a)] claim dismissed after liability trial. Claimant's own negligence in removing safety goggles, and striking two hammers together, sole proximate cause of accident and injury.
|Claimant short name:||TORRECILLA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||ANTONIO TORRECILLA, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: NICK GARIN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||May 17, 2010|
|See also (multicaptioned case)|
Antonio Torrecilla alleges in his claim that on November 25, 2007 correction officers failed to protect him from an assault in the recreation yard at Green Haven Correctional Facility [Green Haven] where he was an inmate. Trial of the matter was held on April 16, 2010.
Mr. Torrecilla testified that he had been at Green Haven for "roughly four days"(1) on November 25, 2007 when he "went into the yard" for his recreation period. He was watching television, when he "felt something strange on [his] face, but because it was cold outside [he] didn't pay it much attention." When he returned to his block during the "go back" the "H-block porter" told him that he "was bleeding in the face." Correction Officer Dryer was called and came to claimant's cell, telling him that he had been cut, and then "rushing" him to the hospital.
Mr. Torrecilla said he received "22 stitches and suffered a laceration of three and three-quarter inches long." There was an investigation, where he was asked if he knew what happened, and he said he "really didn't."
Claimant submitted an Unusual Incident Report [UIR] with attachments in support of his claim [Exhibit 1], and seeks "surgery for his scar, not monetary damages." Photographs attached to the UIR show the slash on his left cheek as described. [Ibid.]. Additional memoranda attached also note that he suffered a puncture wound to his right cheek as well, which can be seen in the photographs. [Ibid.].
On cross-examination claimant confirmed that although he was cut from his cheek to his jaw bone, he did not realize it had occurred, nor did he notice that he was bleeding. It was "go back" time he explained, he "did not know exactly when it happened." He admitted he had a hood over his face as he returned to his block, but said "no one was paying attention anyway."
Claimant agreed that prior to this incident he had not indicated to correction officers or anyone in authority that he was in any particular danger of attack.
It was also confirmed that the first notice claimant gave to the State of his intent to seek recovery was the instant claim served on the Defendant on February 21, 2008 based upon the time stamp thereon. [See Exhibit A].
A memorandum attached to the UIR from Officer Dryer to Sgt. Melendez dated November 25, 2007 provides:
"On the above date at approximately 7:45 pm after letting in early go back from GH yard Inmate Beach . . . approached me . . . about inmate Torrecilla . . . about being cut in the yard. I . . . went down to inmate Torrecilla's cell . . . and observed cuts to both sides of his face. I notified my area sergeant at this time. Should also be noted I observed the inmate enter the block with his hoodie pulled tight over his head and face area as he proceeded directly to his cell." [Exhibit 1].
Claimant was issued a misbehavior report for failing to report an injury. [Ibid.]. Further notations of the investigation attached to the UIR indicate that once the fact of an assault was brought to the attention of personnel, the area was searched, all inmates from the yard were frisked but no weapons were found. [Ibid.]. Claimant is reported to have continued to say that he did not know he was attacked, and did not know his attacker or attackers. [Ibid.]. He was sent for medical treatment and thereafter placed in involuntary protective custody. [Ibid.].
No other witnesses testified, nor was any other evidence submitted, on claimant's direct case.
Sergeant Melendez testified briefly concerning his assignment and duties on November 25, 2007 at Green Haven. He said that three (3) correction officers were assigned to the yard "on the ground" that day, as well as one (1) officer "in the tower." This was, he said, the normal arrangement and there had been no deviation from this procedure that day. Sergeant Melendez explained that there must always be the same complement of officers overseeing the yard, and an officer may not leave the yard without advising his or her supervisor and being replaced.
On cross-examination, when claimant asked how many inmates were in the yard Sergeant Melendez said that there are "usually between 250 and 300 inmates" in the yard at a time, and acknowledged that there were no cameras, or metal detectors, present. The witness could only say that it was not within his authority to determine what was the appropriate level of supervision, when claimant asked whether four officers was sufficient to maintain the "care, custody and control required by Correction Law §137(6) (b)." Sergeant Melendez said that all the inmates who go on the yard "know" of a "potential for danger" because of "all the criminals on the yard," and that there are weapons found in random searches "all the time" despite the efforts of correction officers to keep weapons out of the yard.
Defendant moved to dismiss the claim on untimeliness grounds, saying that the claim was served more than ninety (90) days after its accrual, and that such defense was preserved with particularity in the answer. Based on this Court's calculation, service of a claim on February 21, 2008 is within ninety (90) days of accrual of this claim on November 25, 2007 and is therefore timely. Court of Claims Act §10(3). Defendant's motion to dismiss on this ground is therefore denied.
While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not alone give rise to the inference of negligence. Blake v State of New York, 259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985). More broadly, in order to establish liability on the State's part, 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 that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253-254 (2002). " 'The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable' (Codrington v State of New York, 19 AD3d at 444 . . .)." Smart v State of New York, 65 AD3d 1218 (2d Dept 2009) affg Smart v State of New York, UID # 2007-029-053, Claim No. 98024 (December 21, 2007, Mignano, J).
While actual knowledge with respect to the foreseeability of a given assault
"offers a bright-line test . . . what the State reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institutions's expertise or prior experience, or from its own policies and practices designed to address such risks . . . (citations omitted)" may also be established. Sanchez v State of New York, supra(2) at 254 (emphasis in original).
Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent and that such alleged negligence was a proximate cause of his sudden assault and injury.
The inherent risk of violent activity in a correctional facility housing dangerous individuals does not mandate imposition of liability for inmate-on-inmate assaults that are not reasonably foreseeable. In this case, there has been no showing that the claimant was known to be at risk generally, or that his attacker was known or should have been known for his violent propensities (indeed, the attacker was not identified). There was no indication that claimant was in any particular danger from anyone, or that any unusual events were transpiring on that day.
Sergeant Menendez' honest remark that weapons are found despite the efforts of correction personnel does not suggest an inference of negligence, nor does the use of three (3) to four (4) officers to supervise between 250 and 300 convicted felons, however intuitively inadequate it may seem. Without some expert testimony, such as that offered in Sanchez v State of New York, supra, to show that the inmate-to-officer ratio was not within penological standards of care, or that the methodology used to prevent weapons from being brought into the yard was flawed, the Court cannot infer from these facts that the unseen sudden assault on this claimant was a foreseeable, preventable, result of the State's negligence. Claimant did not know his attacker or attackers, did not even know he was attacked according to his testimony, and kept his face shielded besides when he left the yard - belying his claim that he was unaware of a slashing attack causing injury to both sides of his face - and making it difficult to investigate the matter and charge any assailant.
Once personnel were aware of his injury, by his own testimony and from the record presented [Exhibit 1] he received immediate medical treatment, and was placed in protective custody.
Based on the foregoing, Claim Number 114867 is in all respects dismissed.
Let judgment be entered accordingly.
May 17, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to trial notes or audio recordings unless otherwise indicated.
2. It is noted that the majority opinion - addressing the concerns of the dissent - declares that " we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate." [Id. at 256]. The majority confirms that in the case before it there was simply a triable issue, given "uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate 'go-back' time; and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand." [Id. at 255].