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$80,000 Award in NY Prisoner’s Claim for Injuries Caused by Assault
A New York Court of Claims has awarded $80,000 in damages to a prisoner at the Auburn Correctional Facility in connection with a prisoner-on-prisoner assault. Previously, in an October 1, 2007 order, the court found the State of New York 100% liable because the assault “was reasonably foreseeable and a direct result of the State’s failure to take appropriate steps that could have prevented” the attack. See: Irizarry v. State of New York, New York Court of Claims (Syracuse), Claim No. 108986, UID 2007-009-178.
The claimant, prisoner Alexis Irizarry, was punched twice in the right eye by another prisoner named Hortas. The force of the blows knocked him into a soccer net, which entangled his left hand as he fell and caused a dislocation of his left ring finger, bending it into an “L” shape at the lowest joint.
At the damages trial, Dr. Jerome A. Davis testified that Irizarry had suffered a permanent 50% loss of the proximal interphalageal joint. The injury to the ring finger in conjunction with a prior injury left Irizarry with a combined 50% loss of functional use of his hands.
Dr. Davis further testified that Irizarry had suffered a vitreous hemorrhage and traumatic uveitis that left him with a permanent 50% vision loss in his right eye. Irizarry stated that although his eyesight eventually returned, he now has no peripheral vision in the right eye and his injuries prevent him from performing his prison job as a barber.
For the finger injury, the Court of Claims awarded Irizarry $25,000 for past pain and suffering plus $5,000 for future pain and suffering. It also awarded him $50,000 for past pain and suffering for his eye injury. In its March 24, 2009 order, the Court further awarded interest at the rate of 9% annually from the prior liability finding, plus recovery of any court filing fee.
Irizarry was represented by New York attorney Gary E. Divis. See: Irizarry v. State of New York, New York Court of Claims (Syracuse), Claim No. 108986, UID 2009-009-199.
The claimant, prisoner Alexis Irizarry, was punched twice in the right eye by another prisoner named Hortas. The force of the blows knocked him into a soccer net, which entangled his left hand as he fell and caused a dislocation of his left ring finger, bending it into an “L” shape at the lowest joint.
At the damages trial, Dr. Jerome A. Davis testified that Irizarry had suffered a permanent 50% loss of the proximal interphalageal joint. The injury to the ring finger in conjunction with a prior injury left Irizarry with a combined 50% loss of functional use of his hands.
Dr. Davis further testified that Irizarry had suffered a vitreous hemorrhage and traumatic uveitis that left him with a permanent 50% vision loss in his right eye. Irizarry stated that although his eyesight eventually returned, he now has no peripheral vision in the right eye and his injuries prevent him from performing his prison job as a barber.
For the finger injury, the Court of Claims awarded Irizarry $25,000 for past pain and suffering plus $5,000 for future pain and suffering. It also awarded him $50,000 for past pain and suffering for his eye injury. In its March 24, 2009 order, the Court further awarded interest at the rate of 9% annually from the prior liability finding, plus recovery of any court filing fee.
Irizarry was represented by New York attorney Gary E. Divis. See: Irizarry v. State of New York, New York Court of Claims (Syracuse), Claim No. 108986, UID 2009-009-199.
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Related legal cases
Irizarry v. State of New York
| Year | 2009 |
|---|---|
| Cite | New York Court of Claims (Syracuse), Claim No. 108986, UID 2009-009-199 |
| Level | Court of Claims |
| Conclusion | Bench Verdict |
| Damages | 80,000 |
IRIZARRY v. THE STATE OF NEW YORK, #2009-009-199, Claim No. 108986
Synopsis
The Court awarded the sum of $80,000.00 for past and future pain and suffering for personal injuries suffered by claimant in an inmate-on-inmate assault for which the State was previously found 100% liable.
Case Information
UID:
2009-009-199
Claimant(s):
ALEXIS IRIZARRY
Claimant short name:
IRIZARRY
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
108986
Motion number(s):
Cross-motion number(s):
Judge:
NICHOLAS V. MIDEY JR.
Claimant?s attorney:
GARY E. DIVIS, ESQ.
Defendant?s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O?Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant?s attorney:
Signature date:
March 24, 2009
City:
Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
In a decision on liability dated October 1, 2007, this Court found the defendant State of New York 100% liable for personal injuries suffered by claimant resulting from an inmate-on-inmate assault occurring on July 31, 2003. On that date, claimant was an inmate in the custody of the New York State Department of Correctional Services and was housed at Auburn Correctional Facility (Auburn) when he was assaulted by another inmate. In its liability decision, this Court found that the assault against claimant, which occurred in the main exercise yard at Auburn, was reasonably foreseeable and a direct result of the State?s failure to take appropriate steps that could have prevented the assault.
A trial limited to the issue of the damages suffered by claimant in this assault was held on September 15, 2008, and this decision addresses that issue.
Claimant, who was born on August 9, 1971, was 37 years old at the time of trial, with a life expectancy of 39 years[1].
Claimant testified that twice during the assault, he was punched in his right eye by his assailant (Inmate Hortas), and that the force of the blows knocked him into a soccer net in the exercise yard at Auburn. As he was falling, his left hand became caught in the net, and he suffered a dislocation of his left ring finger, which was bent into an ?L? shape at the lowest joint.
Claimant was transported that same day to Auburn Memorial Hospital for treatment of these injuries. X-rays were taken, and claimant was diagnosed with a finger dislocation of the PIP (proximal interphalageal) joint. The finger was reduced (brought back to normal position) and the joint was splinted. Claimant testified that his right eye was also examined, and that he had no vision in that eye as a result of the assault.
Claimant further testified that approximately two days later, he was transferred to Upstate Medical Center at State University Hospital (Upstate) in Syracuse, New York for further treatment of his injuries. While at Upstate, the splint on his left hand was removed and, claimant testified he was advised that his finger would always be swollen and that he would eventually develop arthritis.
Claimant?s right eye was also examined at Upstate, at which time he was still unable to read an eye chart. Eye drops were prescribed for treatment, and gauze was placed over the eye. Claimant was told by the ophthalmologist who examined him that he was lucky to have any vision at all based on the severity of the injury.
Upon his return to Auburn Correctional Facility, claimant was given ibuprofen and ?buddy tape? for treatment of the injury to his left finger. The ?buddy tape? allowed claimant to tape his injured finger to an adjoining finger for additional support. At trial, claimant, who is still incarcerated, testified that he continues to periodically complain of stiffness and swelling in his left ring finger.
With regard to his eye injury, claimant testified that he was still experiencing severe eye pain (on the level of 10 on a 0 to 10 scale) upon his return to Auburn Correctional Facility. He was suffering from blurred vision and was diagnosed with traumatic uveitis (an inflammation of the uvea). Claimant further testified that his vision started to return approximately one month after the incident, but that in his opinion, he has lost more than 50% of the vision in that eye. At the time of trial, claimant testified that he still did not have any peripheral vision on his right side.
Claimant testified that as a result of these injuries, he was unable to perform certain jobs offered by the Department of Correctional Services within the facility. Specifically, claimant is a barber, but he is unable to give haircuts due to his lack of peripheral vision. Additionally, claimant testified that he had difficulty in handling the electric clippers and scissors required for his barbering job due to the swelling in his left ring finger, combined with limitations caused by a prior injury to his right hand. Claimant also testified that he is unable to participate in many sporting activities that he enjoyed prior to the assault.
Claimant also testified that as a result of this assault, he sought mental health counseling due to his continuous fear that he may be subjected to another assault.
Jerome A. Davis, M.D., testified as a medical expert on behalf of the claimant. Based upon his review of the medical records and his two separate examinations of the claimant, Dr. Davis concluded that both injuries were causally related to the assault against claimant on July 31, 2003.
With regard to the dislocation of claimant?s left ring finger, Dr. Davis observed that claimant still has trouble grasping, and that he has a limited range of movement at the PIP joint of this finger due to swelling and deviation of the joint. As a result, Dr. Davis concluded that claimant does continue to suffer a certain amount of discomfort in that finger, that the injury is permanent, and that corrective surgery would not be able to repair the injury to his left ring finger. Dr. Davis testified that, in his opinion, claimant has suffered a 50% loss of use of the PIP joint in this finger. Dr. Davis also testified that when considering the injury to his left ring finger in conjunction with the prior injury to claimant?s right hand, he concluded that claimant had a combined 50% loss of functional impairment to his hands.
As previously stated, Dr. Davis also testified with regard to the eye injury suffered by claimant and concluded that the vitreous hemorrhage and traumatic uveitis suffered by claimant were a direct and proximate result of the assault against him by Inmate Hortas on July 31, 2003. Based on claimant?s testimony, Dr. Davis concluded that it was probable that claimant has lost 50% of vision in his right eye and that this loss of vision is permanent in nature.
The State did not produce any witnesses at this damages trial.
FINDINGS
Upon considering the testimony of both claimant and Dr. Davis, and after the Court?s review of the medical records entered into evidence (Exhibit 1), it is readily apparent that the injuries to claimant?s left ring finger and his right eye resulted directly from the assault against him by Inmate Hortas on July 31, 2003 in which the State has previously been found 100% liable.
With regard to the injury to claimant?s left ring finger, the undisputed evidence established that claimant suffered a dislocation of the proximal interphalangeal joint (PIP joint) of this finger, caused by a hyper-extension of the finger when he caught his hand in the soccer net as he fell after being struck by Inmate Hortas. The finger, however, was not fractured; the dislocation was reduced, and the hand and finger were splinted. Eventually, the finger was ?buddy taped? to an adjoining finger for a period of time following the incident.
Furthermore, the Court accepts the testimony of both claimant and Dr. Davis that there is some degree of permanency to this injury, with swelling and the future likelihood of arthritis developing in the joint.
Nevertheless, the Court, quite candidly, finds a dislocated finger to be a relatively minor injury, and that claimant has not established a significant loss of function. The Court simply does not agree with claimant?s expert that this injury, combined with claimant?s prior right-hand injury, has resulted in a 50% loss of use and function. There is no evidence that claimant is currently being treated for this injury, and the medical records establish that since mid-2004, claimant has only occasionally registered complaints of soreness or requested ?buddy tape? for his finger.
Accordingly, for this injury, the Court concludes that claimant has suffered damages in the amount of $25,000.00 for past pain and suffering, and $5,000.00 for future pain and suffering.
With regard to the injury sustained by claimant to his right eye, the Court again accepts claimant?s testimony and the testimony from Dr. Davis that the vitreous hemorrhage and the traumatic uveitis were a direct result of the punches to his eye from Inmate Hortas during the assault of July 31, 2003. For a period of several weeks following the assault, claimant had no vision in his right eye, but fortunately, over time, his vision returned. Medical records establish that for approximately four months following the incident, claimant sought medical treatment for blurred vision, ?flashes?, and ?floaters? in his eye. These records also establish, however, that by early 2004, the vitreous hemorrhage had resolved, his medication was discontinued or reduced, and claimant had experienced a marked improvement in his vision.
Although claimant testified that he has lost 50% of his vision in his right eye, and Dr. Davis concurred in this assessment, Dr. Davis admittedly is not trained in ophthalmology and cannot be considered an eye specialist. Furthermore, Dr. Davis did not conduct any independent testing in arriving at his opinion, but drew his conclusions based solely upon the testimony of claimant and his review of the medical records.
Although there is some evidence in these medical records that claimant?s vision in his right eye has deteriorated since the incident, the Court notes that claimant had been prescribed reading glasses prior to the incident. The Court does not find sufficient expert medical testimony to establish that this deteriorating vision is directly attributable to the incident of July 31, 2003.
Based on the foregoing, therefore, the Court finds and concludes that claimant should be awarded the sum of $50,000.00 for past pain and suffering attributable to the injury to his right eye, but makes no award for any future pain and suffering.
Claimant had also testified at trial that he found it necessary to seek counseling from mental health providers for nightmares that he was suffering, and a ?constant fear? that he could not be protected by the Department of Correctional Services. Based on his testimony alone, however, the Court finds insufficient evidence to merit any award for mental suffering.
Claimant did not make any claim for lost wages, whether past or future.
Based on the foregoing, therefore, the Court awards claimant the total sum of $80,000.00 ($75,000.00 for past pain and suffering, and $5,000.00 for future pain and suffering). The Clerk of the Court of Claims is hereby directed to enter judgment in this amount in favor of claimant.
The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability, October 1, 2007 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540). Additionally, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act, § 11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 24, 2009
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
[1]. Life Expectancy Tables for men in the United States (PJI 3d [2009], Vol 1B, Appendix A, Table 2 at 1678).
Synopsis
The Court awarded the sum of $80,000.00 for past and future pain and suffering for personal injuries suffered by claimant in an inmate-on-inmate assault for which the State was previously found 100% liable.
Case Information
UID:
2009-009-199
Claimant(s):
ALEXIS IRIZARRY
Claimant short name:
IRIZARRY
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
108986
Motion number(s):
Cross-motion number(s):
Judge:
NICHOLAS V. MIDEY JR.
Claimant?s attorney:
GARY E. DIVIS, ESQ.
Defendant?s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O?Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant?s attorney:
Signature date:
March 24, 2009
City:
Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
In a decision on liability dated October 1, 2007, this Court found the defendant State of New York 100% liable for personal injuries suffered by claimant resulting from an inmate-on-inmate assault occurring on July 31, 2003. On that date, claimant was an inmate in the custody of the New York State Department of Correctional Services and was housed at Auburn Correctional Facility (Auburn) when he was assaulted by another inmate. In its liability decision, this Court found that the assault against claimant, which occurred in the main exercise yard at Auburn, was reasonably foreseeable and a direct result of the State?s failure to take appropriate steps that could have prevented the assault.
A trial limited to the issue of the damages suffered by claimant in this assault was held on September 15, 2008, and this decision addresses that issue.
Claimant, who was born on August 9, 1971, was 37 years old at the time of trial, with a life expectancy of 39 years[1].
Claimant testified that twice during the assault, he was punched in his right eye by his assailant (Inmate Hortas), and that the force of the blows knocked him into a soccer net in the exercise yard at Auburn. As he was falling, his left hand became caught in the net, and he suffered a dislocation of his left ring finger, which was bent into an ?L? shape at the lowest joint.
Claimant was transported that same day to Auburn Memorial Hospital for treatment of these injuries. X-rays were taken, and claimant was diagnosed with a finger dislocation of the PIP (proximal interphalageal) joint. The finger was reduced (brought back to normal position) and the joint was splinted. Claimant testified that his right eye was also examined, and that he had no vision in that eye as a result of the assault.
Claimant further testified that approximately two days later, he was transferred to Upstate Medical Center at State University Hospital (Upstate) in Syracuse, New York for further treatment of his injuries. While at Upstate, the splint on his left hand was removed and, claimant testified he was advised that his finger would always be swollen and that he would eventually develop arthritis.
Claimant?s right eye was also examined at Upstate, at which time he was still unable to read an eye chart. Eye drops were prescribed for treatment, and gauze was placed over the eye. Claimant was told by the ophthalmologist who examined him that he was lucky to have any vision at all based on the severity of the injury.
Upon his return to Auburn Correctional Facility, claimant was given ibuprofen and ?buddy tape? for treatment of the injury to his left finger. The ?buddy tape? allowed claimant to tape his injured finger to an adjoining finger for additional support. At trial, claimant, who is still incarcerated, testified that he continues to periodically complain of stiffness and swelling in his left ring finger.
With regard to his eye injury, claimant testified that he was still experiencing severe eye pain (on the level of 10 on a 0 to 10 scale) upon his return to Auburn Correctional Facility. He was suffering from blurred vision and was diagnosed with traumatic uveitis (an inflammation of the uvea). Claimant further testified that his vision started to return approximately one month after the incident, but that in his opinion, he has lost more than 50% of the vision in that eye. At the time of trial, claimant testified that he still did not have any peripheral vision on his right side.
Claimant testified that as a result of these injuries, he was unable to perform certain jobs offered by the Department of Correctional Services within the facility. Specifically, claimant is a barber, but he is unable to give haircuts due to his lack of peripheral vision. Additionally, claimant testified that he had difficulty in handling the electric clippers and scissors required for his barbering job due to the swelling in his left ring finger, combined with limitations caused by a prior injury to his right hand. Claimant also testified that he is unable to participate in many sporting activities that he enjoyed prior to the assault.
Claimant also testified that as a result of this assault, he sought mental health counseling due to his continuous fear that he may be subjected to another assault.
Jerome A. Davis, M.D., testified as a medical expert on behalf of the claimant. Based upon his review of the medical records and his two separate examinations of the claimant, Dr. Davis concluded that both injuries were causally related to the assault against claimant on July 31, 2003.
With regard to the dislocation of claimant?s left ring finger, Dr. Davis observed that claimant still has trouble grasping, and that he has a limited range of movement at the PIP joint of this finger due to swelling and deviation of the joint. As a result, Dr. Davis concluded that claimant does continue to suffer a certain amount of discomfort in that finger, that the injury is permanent, and that corrective surgery would not be able to repair the injury to his left ring finger. Dr. Davis testified that, in his opinion, claimant has suffered a 50% loss of use of the PIP joint in this finger. Dr. Davis also testified that when considering the injury to his left ring finger in conjunction with the prior injury to claimant?s right hand, he concluded that claimant had a combined 50% loss of functional impairment to his hands.
As previously stated, Dr. Davis also testified with regard to the eye injury suffered by claimant and concluded that the vitreous hemorrhage and traumatic uveitis suffered by claimant were a direct and proximate result of the assault against him by Inmate Hortas on July 31, 2003. Based on claimant?s testimony, Dr. Davis concluded that it was probable that claimant has lost 50% of vision in his right eye and that this loss of vision is permanent in nature.
The State did not produce any witnesses at this damages trial.
FINDINGS
Upon considering the testimony of both claimant and Dr. Davis, and after the Court?s review of the medical records entered into evidence (Exhibit 1), it is readily apparent that the injuries to claimant?s left ring finger and his right eye resulted directly from the assault against him by Inmate Hortas on July 31, 2003 in which the State has previously been found 100% liable.
With regard to the injury to claimant?s left ring finger, the undisputed evidence established that claimant suffered a dislocation of the proximal interphalangeal joint (PIP joint) of this finger, caused by a hyper-extension of the finger when he caught his hand in the soccer net as he fell after being struck by Inmate Hortas. The finger, however, was not fractured; the dislocation was reduced, and the hand and finger were splinted. Eventually, the finger was ?buddy taped? to an adjoining finger for a period of time following the incident.
Furthermore, the Court accepts the testimony of both claimant and Dr. Davis that there is some degree of permanency to this injury, with swelling and the future likelihood of arthritis developing in the joint.
Nevertheless, the Court, quite candidly, finds a dislocated finger to be a relatively minor injury, and that claimant has not established a significant loss of function. The Court simply does not agree with claimant?s expert that this injury, combined with claimant?s prior right-hand injury, has resulted in a 50% loss of use and function. There is no evidence that claimant is currently being treated for this injury, and the medical records establish that since mid-2004, claimant has only occasionally registered complaints of soreness or requested ?buddy tape? for his finger.
Accordingly, for this injury, the Court concludes that claimant has suffered damages in the amount of $25,000.00 for past pain and suffering, and $5,000.00 for future pain and suffering.
With regard to the injury sustained by claimant to his right eye, the Court again accepts claimant?s testimony and the testimony from Dr. Davis that the vitreous hemorrhage and the traumatic uveitis were a direct result of the punches to his eye from Inmate Hortas during the assault of July 31, 2003. For a period of several weeks following the assault, claimant had no vision in his right eye, but fortunately, over time, his vision returned. Medical records establish that for approximately four months following the incident, claimant sought medical treatment for blurred vision, ?flashes?, and ?floaters? in his eye. These records also establish, however, that by early 2004, the vitreous hemorrhage had resolved, his medication was discontinued or reduced, and claimant had experienced a marked improvement in his vision.
Although claimant testified that he has lost 50% of his vision in his right eye, and Dr. Davis concurred in this assessment, Dr. Davis admittedly is not trained in ophthalmology and cannot be considered an eye specialist. Furthermore, Dr. Davis did not conduct any independent testing in arriving at his opinion, but drew his conclusions based solely upon the testimony of claimant and his review of the medical records.
Although there is some evidence in these medical records that claimant?s vision in his right eye has deteriorated since the incident, the Court notes that claimant had been prescribed reading glasses prior to the incident. The Court does not find sufficient expert medical testimony to establish that this deteriorating vision is directly attributable to the incident of July 31, 2003.
Based on the foregoing, therefore, the Court finds and concludes that claimant should be awarded the sum of $50,000.00 for past pain and suffering attributable to the injury to his right eye, but makes no award for any future pain and suffering.
Claimant had also testified at trial that he found it necessary to seek counseling from mental health providers for nightmares that he was suffering, and a ?constant fear? that he could not be protected by the Department of Correctional Services. Based on his testimony alone, however, the Court finds insufficient evidence to merit any award for mental suffering.
Claimant did not make any claim for lost wages, whether past or future.
Based on the foregoing, therefore, the Court awards claimant the total sum of $80,000.00 ($75,000.00 for past pain and suffering, and $5,000.00 for future pain and suffering). The Clerk of the Court of Claims is hereby directed to enter judgment in this amount in favor of claimant.
The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability, October 1, 2007 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540). Additionally, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act, § 11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 24, 2009
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
[1]. Life Expectancy Tables for men in the United States (PJI 3d [2009], Vol 1B, Appendix A, Table 2 at 1678).
Irizarry v. State of New York
| Year | 2007 |
|---|---|
| Cite | New York Court of Claims (Syracuse), Claim No. 108986, UID 2007-009-178 |
| Level | Court of Claims |
| Conclusion | Bench Verdict |
New York State Court of Claims
New York State Court of Claims
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IRIZARRY v. THE STATE OF NEW YORK, #2007-009-178, Claim No. 108986
Synopsis
The State was found 100% responsible for injuries suffered by claimant resulting from an inmate-on-inmate assault which occurred at Auburn Correctional Facility. The Court found that such assault was reasonably foreseeable, in that the State was aware, prior to this incident, that claimant was at risk of assault by his assailant.
Case Information
UID:
2007-009-178
Claimant(s):
ALEXIS IRIZARRY
Claimant short name:
IRIZARRY
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
108986
Motion number(s):
Cross-motion number(s):
Judge:
NICHOLAS V. MIDEY JR.
Claimant?s attorney:
GARY E. DIVIS, ESQ.
Defendant?s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O?Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant?s attorney:
Signature date:
October 1, 2007
City:
Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
In this claim, claimant alleges that the Department of Correctional Services (hereinafter ?DOCS?) failed in its duty to provide him with reasonable protection from assault by another inmate at a time when he was incarcerated at Auburn Correctional Facility. Specifically, claimant seeks damages for injuries suffered in an attack which occurred on July 31, 2003 at the facility. The trial of this claim was bifurcated, and this decision is therefore limited to the issue of liability.
Claimant testified that he arrived at Auburn Correctional Facility on June 30, 2003, and at that time he had no known enemies within the system. On July 17, 2003 claimant was attacked by an inmate Castro. Claimant testified that at the time of his assault he did not know inmate Castro, nor did he know the reason for the attack upon him. Claimant was subsequently found guilty in an administrative hearing of violating prison rules, and was sentenced to 30 days of keeplock, beginning on July 17, 2003. Claimant started to serve this keeplock sentence in his cell, which was located on the ?B Block?, in cell B-08-08.
While he was restricted to keeplock status, one Sergeant Sigona (who did not testify at trial) interviewed claimant and made a recommendation that he be placed in involuntary protective custody (?IPC?) (Exhibit 6). Sergeant Sigona had apparently received confidential information that the assault which occurred on July 17th was the result of a contract made by another inmate on claimant?s life, and that claimant was still in danger of assault (Exhibit 4).
On this same date, July 22, 2003, claimant waived protective custody (?PC?). Claimant testified that he refused PC because other inmates view a PC inmate as an informer or ?snitch?. Nevertheless, the recommendation by Sergeant Sigona satisfied a precondition that had to exist before an inmate could be placed in IPC. Based upon Sergeant Sigona?s recommendation, an IPC hearing was commenced on July 27, 2003, which was presided by Lieutenant Quinn.
Claimant testified that at this hearing, Lieutenant Quinn reviewed the warning note (Exhibit 4), as well as a confidential tape. Claimant further testified that Lieutenant Quinn advised him of the contents of both the note and tape, and claimant learned at this hearing for the first time that one inmate Hortas had put out the contract for the prior assault on July 17th, and was the person who had issued the threats against him. According to claimant, Lieutenant Quinn told claimant that he (Lieutenant Quinn) was aware that claimant was seeing the wife of inmate Hortas, and that is why inmate Hortas had put out the contract on claimant?s life.
Lieutenant Quinn also testified at trial, but he had no personal recollection of these proceedings, other than receiving the recommendation from Sergeant Sigona.[1]
On this date (July 27, 2003), claimant was ordered confined pending conclusion of the IPC hearing. Claimant was transferred to a cell in C-15 (the IPC/PC gallery), and was confined to his IPC cell, C-15-37.
Claimant acknowledged at trial that during this time, and even prior to the assault which occurred on July 17, 2003, he had been corresponding with one Marilyn Wandersee. Claimant testified that he received a visit from Ms. Wandersee on July 29, 2003, while he was still housed in the IPC/PC gallery. Claimant further testified that it was only at this point in time, during her visit of July 29, 2003, that Ms. Wandersee informed him that inmate Hortas, also known as ?Chino?, was her husband, and that inmate Hortas was aware of her relationship with claimant. Claimant admitted that once he became aware of this information, he did not advise any facility officials or officers of these facts.
Claimant then testified that two days later, on July 31, 2003, he was transferred to C-block, and specifically to cell C-12-25. At approximately 3:45 p.m. that day, claimant was released from his cell to go to the Main Yard for recreation. Shortly after entering the yard, claimant was attacked by inmate Hortas, sustaining personal injuries.
Craig C. Gummerson, a captain at Auburn Correctional Facility, also testified. Captain Gummerson confirmed the fact that claimant was transferred from the IPC/PC gallery to his cell (C-12-25) on July 31, 2003, pursuant to his order. Captain Gummerson confirmed that the transfer to this particular cell would not and should not have affected either claimant?s existing keeplock sentence, or his pending IPC status. In other words, even though claimant was being transferred to a general population cell, he was still restricted to cell confinement due to both his keeplock status and his confinement pending a final determination on IPC.
Captain Gummerson further testified that the documentation regarding claimant?s pending IPC status and his keeplock restrictions should have ?followed?[2] the inmate, and that his cell should have been ?tagged? with appropriate symbols. Additionally, this information should have been entered into the log maintained on that cellblock. Captain Gummerson could provide no explanation as to why claimant was transferred to the general population cell, and more importantly, why the documentation pertaining to his restrictions did not ?follow? claimant to his new cell.
Captain Gummerson also confirmed that at this time, inmate Hortas was also housed on C-block, in cell C-13-10.
Robert DeRosa, an expert on prison supervision and penology, testified on behalf of claimant. He testified that in his opinion, DOCS failed to apply generally accepted principles of penology in its supervision of claimant on July 31, 2003, when claimant was assaulted by inmate Hortas. Based on the confidential information documented by Sergeant Sigona, Mr. DeRosa testified that the State had information indicating that an assault against claimant was reasonably foreseeable. Furthermore, since claimant was supposed to be confined pending a determination on his IPC status, claimant should not have been permitted to co-mingle with inmates in the general population. In his opinion, if claimant had been so restricted, the confrontation with inmate Hortas would not and could not have occurred.
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).
In this particular matter, it is clear, and defendant even acknowledges, that on July 31, 2003, the date when claimant was assaulted by inmate Hortas, claimant should have been confined to his cell as a result of the administrative penalty of 30 days keeplock which had been imposed on him following the initial assault on July 17, 2003. Had claimant remained confined to his cell as a result of the keeplock sentence, he would not have been permitted to enter the Main Yard with general inmate population, and this assault on July 31, 2003 could not have occurred.
Similarly, it has been established that Sergeant Sigona had received confidential information that a contract had been placed on claimant?s life prior to July 31, 2003, and the State was aware that claimant was particularly vulnerable to a risk of assault if he was placed in general population. As a result of Sergeant Sigona?s determination that claimant was at serious risk if he was placed in the general population, the necessary preconditions had been established to justify claimant?s placement into IPC as a potential victim. In fact, as a result of the July 27, 2003 hearing held before Lieutenant Quinn, it was determined that claimant should be lodged in IPC pending a final IPC determination. Following this recommendation, made on July 27, 2003, claimant was received into the IPC/PC gallery on July 28, 2003, and should have remained confined to his cell pending a final IPC determination.
In other words, on the date of the assault by inmate Hortas on July 31, 2003, claimant should have been confined to his cell on C-block, pursuant to both his current keeplock sentence and his IPC status.
Defendant has provided the Court with no explanation whatsoever as to why the appropriate tags were not affixed to his cell door or why such restrictions were not entered into the log. The Court must therefore find that proper policies and procedures, which would have insured that claimant?s status as both a keeplock prisoner, and pending IPC prisoner were not followed in this instance. As a result of this failure, claimant was allowed to co-mingle with other C-block inmates in general population, including inmate Hortas.
Furthermore, the Court finds that the failure to continue the restrictions on claimant?s status was not the result of any exercise of discretion, but was purely a ministerial failure, thereby subjecting the defendant to liability (Hunt v State of New York, 36 AD3d 511).
Additionally, testimony established that the State was aware, at least by July 27, 2003, that claimant was specifically at risk of assault by inmate Hortas, yet it failed to segregate these two inmates, thereby providing the opportunity for the two inmates to come into contact with each other.
The Court therefore concludes that the assault against claimant by inmate Hortas on July 31, 2003 was reasonably foreseeable, and a direct and proximate result of the State?s failure to take appropriate steps to prevent this foreseeable assault. The State must therefore respond in damages. Defendant contends, however, that claimant must share a significant portion of the responsibility for this assault, due to his acknowledged failure to inform prison officials of his relationship with Ms. Wandersee, his assailant?s wife. It is undisputed that as of July 29, 2003 (at the latest), claimant was aware that Ms. Wandersee was the wife of inmate Hortas, that inmate Hortas was behind the assault which occurred on July 17, 2003, and that inmate Hortas continued to be a threat to him.
There is no documentation or other evidence to establish, with certainty, what was said at the IPC hearing conducted by Lieutenant Quinn on July 27, 2003. However, there is no question that as of this date, the State did have knowledge that claimant was at serious risk of assault if he was returned to general population. The recommendation from Sergeant Sigona establishes this fact. Therefore, even though claimant was not forthcoming, the State already had direct knowledge that claimant was at risk of assault and had taken steps to protect claimant from this risk. Simply stated, the State then failed to follow through with the appropriate and recommended safeguards for the protection of claimant. Despite claimant?s silence, the State, therefore, must be held fully liable for the injuries sustained by him in the July 31, 2003 assault.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. This claim will be scheduled for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
October 1, 2007
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
[1]. Although these proceedings were tape-recorded (according to claimant), neither this tape nor the ?confidential tape? supposedly relied upon by Lieutenant Quinn were ever located.
[2]. Unless otherwise indicated, all references and quotations are taken from the Court?s trial notes.
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IRIZARRY v. THE STATE OF NEW YORK, #2007-009-178, Claim No. 108986
Synopsis
The State was found 100% responsible for injuries suffered by claimant resulting from an inmate-on-inmate assault which occurred at Auburn Correctional Facility. The Court found that such assault was reasonably foreseeable, in that the State was aware, prior to this incident, that claimant was at risk of assault by his assailant.
Case Information
UID:
2007-009-178
Claimant(s):
ALEXIS IRIZARRY
Claimant short name:
IRIZARRY
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
108986
Motion number(s):
Cross-motion number(s):
Judge:
NICHOLAS V. MIDEY JR.
Claimant?s attorney:
GARY E. DIVIS, ESQ.
Defendant?s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O?Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant?s attorney:
Signature date:
October 1, 2007
City:
Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
In this claim, claimant alleges that the Department of Correctional Services (hereinafter ?DOCS?) failed in its duty to provide him with reasonable protection from assault by another inmate at a time when he was incarcerated at Auburn Correctional Facility. Specifically, claimant seeks damages for injuries suffered in an attack which occurred on July 31, 2003 at the facility. The trial of this claim was bifurcated, and this decision is therefore limited to the issue of liability.
Claimant testified that he arrived at Auburn Correctional Facility on June 30, 2003, and at that time he had no known enemies within the system. On July 17, 2003 claimant was attacked by an inmate Castro. Claimant testified that at the time of his assault he did not know inmate Castro, nor did he know the reason for the attack upon him. Claimant was subsequently found guilty in an administrative hearing of violating prison rules, and was sentenced to 30 days of keeplock, beginning on July 17, 2003. Claimant started to serve this keeplock sentence in his cell, which was located on the ?B Block?, in cell B-08-08.
While he was restricted to keeplock status, one Sergeant Sigona (who did not testify at trial) interviewed claimant and made a recommendation that he be placed in involuntary protective custody (?IPC?) (Exhibit 6). Sergeant Sigona had apparently received confidential information that the assault which occurred on July 17th was the result of a contract made by another inmate on claimant?s life, and that claimant was still in danger of assault (Exhibit 4).
On this same date, July 22, 2003, claimant waived protective custody (?PC?). Claimant testified that he refused PC because other inmates view a PC inmate as an informer or ?snitch?. Nevertheless, the recommendation by Sergeant Sigona satisfied a precondition that had to exist before an inmate could be placed in IPC. Based upon Sergeant Sigona?s recommendation, an IPC hearing was commenced on July 27, 2003, which was presided by Lieutenant Quinn.
Claimant testified that at this hearing, Lieutenant Quinn reviewed the warning note (Exhibit 4), as well as a confidential tape. Claimant further testified that Lieutenant Quinn advised him of the contents of both the note and tape, and claimant learned at this hearing for the first time that one inmate Hortas had put out the contract for the prior assault on July 17th, and was the person who had issued the threats against him. According to claimant, Lieutenant Quinn told claimant that he (Lieutenant Quinn) was aware that claimant was seeing the wife of inmate Hortas, and that is why inmate Hortas had put out the contract on claimant?s life.
Lieutenant Quinn also testified at trial, but he had no personal recollection of these proceedings, other than receiving the recommendation from Sergeant Sigona.[1]
On this date (July 27, 2003), claimant was ordered confined pending conclusion of the IPC hearing. Claimant was transferred to a cell in C-15 (the IPC/PC gallery), and was confined to his IPC cell, C-15-37.
Claimant acknowledged at trial that during this time, and even prior to the assault which occurred on July 17, 2003, he had been corresponding with one Marilyn Wandersee. Claimant testified that he received a visit from Ms. Wandersee on July 29, 2003, while he was still housed in the IPC/PC gallery. Claimant further testified that it was only at this point in time, during her visit of July 29, 2003, that Ms. Wandersee informed him that inmate Hortas, also known as ?Chino?, was her husband, and that inmate Hortas was aware of her relationship with claimant. Claimant admitted that once he became aware of this information, he did not advise any facility officials or officers of these facts.
Claimant then testified that two days later, on July 31, 2003, he was transferred to C-block, and specifically to cell C-12-25. At approximately 3:45 p.m. that day, claimant was released from his cell to go to the Main Yard for recreation. Shortly after entering the yard, claimant was attacked by inmate Hortas, sustaining personal injuries.
Craig C. Gummerson, a captain at Auburn Correctional Facility, also testified. Captain Gummerson confirmed the fact that claimant was transferred from the IPC/PC gallery to his cell (C-12-25) on July 31, 2003, pursuant to his order. Captain Gummerson confirmed that the transfer to this particular cell would not and should not have affected either claimant?s existing keeplock sentence, or his pending IPC status. In other words, even though claimant was being transferred to a general population cell, he was still restricted to cell confinement due to both his keeplock status and his confinement pending a final determination on IPC.
Captain Gummerson further testified that the documentation regarding claimant?s pending IPC status and his keeplock restrictions should have ?followed?[2] the inmate, and that his cell should have been ?tagged? with appropriate symbols. Additionally, this information should have been entered into the log maintained on that cellblock. Captain Gummerson could provide no explanation as to why claimant was transferred to the general population cell, and more importantly, why the documentation pertaining to his restrictions did not ?follow? claimant to his new cell.
Captain Gummerson also confirmed that at this time, inmate Hortas was also housed on C-block, in cell C-13-10.
Robert DeRosa, an expert on prison supervision and penology, testified on behalf of claimant. He testified that in his opinion, DOCS failed to apply generally accepted principles of penology in its supervision of claimant on July 31, 2003, when claimant was assaulted by inmate Hortas. Based on the confidential information documented by Sergeant Sigona, Mr. DeRosa testified that the State had information indicating that an assault against claimant was reasonably foreseeable. Furthermore, since claimant was supposed to be confined pending a determination on his IPC status, claimant should not have been permitted to co-mingle with inmates in the general population. In his opinion, if claimant had been so restricted, the confrontation with inmate Hortas would not and could not have occurred.
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).
In this particular matter, it is clear, and defendant even acknowledges, that on July 31, 2003, the date when claimant was assaulted by inmate Hortas, claimant should have been confined to his cell as a result of the administrative penalty of 30 days keeplock which had been imposed on him following the initial assault on July 17, 2003. Had claimant remained confined to his cell as a result of the keeplock sentence, he would not have been permitted to enter the Main Yard with general inmate population, and this assault on July 31, 2003 could not have occurred.
Similarly, it has been established that Sergeant Sigona had received confidential information that a contract had been placed on claimant?s life prior to July 31, 2003, and the State was aware that claimant was particularly vulnerable to a risk of assault if he was placed in general population. As a result of Sergeant Sigona?s determination that claimant was at serious risk if he was placed in the general population, the necessary preconditions had been established to justify claimant?s placement into IPC as a potential victim. In fact, as a result of the July 27, 2003 hearing held before Lieutenant Quinn, it was determined that claimant should be lodged in IPC pending a final IPC determination. Following this recommendation, made on July 27, 2003, claimant was received into the IPC/PC gallery on July 28, 2003, and should have remained confined to his cell pending a final IPC determination.
In other words, on the date of the assault by inmate Hortas on July 31, 2003, claimant should have been confined to his cell on C-block, pursuant to both his current keeplock sentence and his IPC status.
Defendant has provided the Court with no explanation whatsoever as to why the appropriate tags were not affixed to his cell door or why such restrictions were not entered into the log. The Court must therefore find that proper policies and procedures, which would have insured that claimant?s status as both a keeplock prisoner, and pending IPC prisoner were not followed in this instance. As a result of this failure, claimant was allowed to co-mingle with other C-block inmates in general population, including inmate Hortas.
Furthermore, the Court finds that the failure to continue the restrictions on claimant?s status was not the result of any exercise of discretion, but was purely a ministerial failure, thereby subjecting the defendant to liability (Hunt v State of New York, 36 AD3d 511).
Additionally, testimony established that the State was aware, at least by July 27, 2003, that claimant was specifically at risk of assault by inmate Hortas, yet it failed to segregate these two inmates, thereby providing the opportunity for the two inmates to come into contact with each other.
The Court therefore concludes that the assault against claimant by inmate Hortas on July 31, 2003 was reasonably foreseeable, and a direct and proximate result of the State?s failure to take appropriate steps to prevent this foreseeable assault. The State must therefore respond in damages. Defendant contends, however, that claimant must share a significant portion of the responsibility for this assault, due to his acknowledged failure to inform prison officials of his relationship with Ms. Wandersee, his assailant?s wife. It is undisputed that as of July 29, 2003 (at the latest), claimant was aware that Ms. Wandersee was the wife of inmate Hortas, that inmate Hortas was behind the assault which occurred on July 17, 2003, and that inmate Hortas continued to be a threat to him.
There is no documentation or other evidence to establish, with certainty, what was said at the IPC hearing conducted by Lieutenant Quinn on July 27, 2003. However, there is no question that as of this date, the State did have knowledge that claimant was at serious risk of assault if he was returned to general population. The recommendation from Sergeant Sigona establishes this fact. Therefore, even though claimant was not forthcoming, the State already had direct knowledge that claimant was at risk of assault and had taken steps to protect claimant from this risk. Simply stated, the State then failed to follow through with the appropriate and recommended safeguards for the protection of claimant. Despite claimant?s silence, the State, therefore, must be held fully liable for the injuries sustained by him in the July 31, 2003 assault.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. This claim will be scheduled for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
October 1, 2007
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
[1]. Although these proceedings were tape-recorded (according to claimant), neither this tape nor the ?confidential tape? supposedly relied upon by Lieutenant Quinn were ever located.
[2]. Unless otherwise indicated, all references and quotations are taken from the Court?s trial notes.