Gangler v State of New York

[*1] Gangler v State of New York 2006 NY Slip Op 52659(U) [21 Misc 3d 1124(A)] Decided on March 29, 2006 Ct Cl Midey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2006
Ct Cl

Donald A. Gangler, Jr. Claimant

against

The State of New York, Defendant



96352



Claimant's attorney:WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C.

BY: Simon K. Moody, Esq.,

Of Counsel.

Defendant's attorney:HON. ELIOT SPITZER

Attorney General

BY: Timothy P. Mulvey, Esq.,

Assistant Attorney General

Of Counsel.

Nicholas V. Midey, J.

In this claim, claimant seeks damages for personal injuries sustained by him in an assault against him by an unknown person, which occurred on June 6, 1995, at a time when he was incarcerated at Auburn Correctional Facility ("Auburn"). The claim is based upon allegations of negligent supervision. [*2]

In a decision made following a trial on liability, my esteemed and learned colleague, Hon. Diane L. Fitzpatrick, previously dismissed this claim, finding that claimant had not established his cause of action based upon recognized grounds pertaining to inmate assaults (Gangler v State of New York, February 5, 2001, Fitzpatrick, J., Claim No. 96352 [UID #2001-018-059])[FN1]. Claimant appealed this decision, and during the pendency of his appeal, the Court of Appeals established that the proper standard in determining inmate assault claims is one of reasonable foreseeability, i.e., whether defendant knew or reasonably should have known that the inmate claimant was at risk of harm. (Sanchez v State of New York, 99 NY2d 247). The Appellate Division, Fourth Department, therefore reinstated this claim and ordered that a new trial be granted (Gangler v State of New York, 302 AD2d 964).

This claim was then assigned to this Judge, and a trial limited to the issue of liability was heard on July 7, 2005.

At this trial, claimant testified that at the time of this assault, he was an inmate plumber at Auburn, which required him to assist personnel from the maintenance department in making plumbing repairs throughout the facility. On the morning of June 6, 1995, claimant was assigned to work with a civilian plumber in the B Block at the facility. After completing his work in the morning, claimant was directed to return to B Block in the afternoon to repair a defective shower valve in the 9 Company of B Block.

After lunch, claimant returned to B Block and reported to the officers' desk on the main floor of the housing area, carrying his locked toolbox. Since he worked as an inmate plumber, claimant was permitted to have a toolbox in his possession, containing those tools which he would need in order to perform his duties. Claimant was responsible for the tools in his toolbox, which was padlocked when not in use. According to claimant, this toolbox also contained an inventory listing of the tools contained therein.

After arriving at the officers' desk on the first floor of the B Block housing area, he went up the stairs and met Correction Officer Richard McConnell. He testified that Officer McConnell accompanied him to the shower area, and Officer McConnell first unlocked the utility corridor door, in order to turn off the water to the shower that he was to repair. Officer McConnell then escorted claimant back to the 9 Company shower stall (which is in actuality a prison cell that has been converted into a shower that needed repair).

Claimant testified that he then proceeded to work on the shower, and that he first removed the defective valve. He then was kneeling in the shower stall, working on the valve, when he was struck from behind by an unknown assailant. He was knocked unconscious for a brief moment, and when he awoke, he was alone in the shower cell and bleeding from the area of his right eye. The cell door, which had been left open prior to the incident, was closed and locked. Claimant then called out for assistance, and shortly thereafter Officer McConnell returned to the scene and summoned medical assistance.

Claimant testified that he was unaware of any possible enemies at the facility, and that he had not requested any special protection prior to the incident. Claimant testified that the identity of his assailant has never been determined. [*3]

With regard to his tools and toolbox, claimant testified that prior to the assault, he had been informed that his tools were classified as "Class A" tools and that, to the best of his knowledge, some of the tools in his toolbox were classified as such. He further testified that while working as an inmate plumber at Auburn, he had been directly supervised by either a civilian or correction officer on each and every occasion prior to this incident.

Correction Officers Anthony Volpe and Carl Townsend were both called as witnesses by claimant. Neither of these officers, however, had any personal knowledge of this incident. Correction Officer Volpe testified that a type A tool was in reference to a classification of tools established by the Department of Correctional Services, and that these tools were considered the type of tools that could be used in an assault or in aiding an escape. Correction Officer Townsend testified that inmates who possessed Class A tools as part of their work duties required constant and direct visual supervision. Neither of these officers, however, had any knowledge as to whether claimant possessed any Class A tools on the day that he was assaulted.

John Rourke, a lieutenant at Auburn at the time of the incident, testified as to the procedures and security protocols regulating the distribution of tools at the facility. He testified that the distribution of Class A tools was strictly controlled, and regulations required a civilian maintenance worker to sign a tool out, with that worker being responsible for its return. The employee who signed out any Class A tool was required to supervise the inmate using that tool. Lieutenant Rourke also testified that inmates were not permitted to carry Class A tools in a locked toolbox, and as a result, there were no requirements that a correction officer had to search an inmate's toolbox upon his arrival to perform work.

Lieutenant Rourke further testified that if an inmate possessed Class B tools (essentially, any tool not classified as a Class A tool), and not Class A tools, constant and direct supervision was not required, and a correction officer was required to provide intermittent supervision of the inmate.

Officer Richard McConnell, the correction officer who accompanied claimant on his work duties that afternoon on the day of the incident, also testified. He acknowledged that he did not inspect claimant's toolbox when he arrived at the B Block housing area. After shutting off the water in the utility corridor, Officer McConnell testified that he left claimant alone in the shower stall and then proceeded to the gate at the end of the company to let in another inmate. When he returned after just "a couple of minutes"[FN2], he noticed that the shower door was closed. He looked in and saw claimant on his knees and could tell that claimant had been assaulted. He then called for assistance from other officers.

Correction Officer McConnell acknowledged that he did not maintain direct and constant supervision over claimant during the time that he was letting in another inmate at the gate. Even though he did not open or inspect claimant's locked toolbox, Correction Officer McConnell did not believe that claimant possessed any Class A tools, since claimant had not been in the custody of any civilian or prison employee when he arrived at his desk for his afternoon work duties. Since he did not inspect the tool box, however, he had no direct knowledge of the types of tools that were contained therein.

Following this assault, an unusual incident report was prepared. Lieutenant Rourke [*4]testified that this report made no identification of, or reference to, the tools that were in the possession of claimant at the time of the incident.

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 (see 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 (see 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 (see 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 Court's opinion, liability in this matter hinges upon a determination as to whether claimant was in possession of Class A tools at the time of his assault. Defendant acknowledges that Department of Correctional Services policy requires its correctional facilities to strictly enforce Class A tool assignment procedures, and an inmate in possession of those tools must be kept in constant direct supervision. These regulations, therefore, are certainly relevant in determining the reasonable foreseeability of an assault. Defendant also concedes that Officer McConnell, while supervising claimant, did not keep him in his direct view at all times, and that the assault occurred at a time when he was unable to see claimant. However, if claimant was in possession of Class B tools only, prison regulations would not require constant direct supervision, and Officer McConnell's absence for a brief period of time may not be sufficient, in and of itself, to constitute negligence.In this particular matter, claimant was unable to produce any documentation to establish the fact that he was in possession of Class A tools on the day of his assault. The Court, however, found claimant to be a credible witness, and he provided the only direct testimony as to the type of tools that he possessed on that day.

Defendant, on the other hand, produced no documentation whatsoever in support of its position that the tools possessed by claimant were only Class B tools. The Court is troubled by the fact that the unusual incident report (see Exhibit F) makes no reference to the tools that were possessed by claimant at that time, nor did the State produce the inventory list which should have been maintained in claimant's toolbox with his tools.

The Court has reviewed the lists of tools that are classified as Class A tools (see Exhibit 3) and finds it reasonable to conclude that since claimant had been instructed to repair the shower valve in the B Block shower stall, the types of tools required to adequately complete this task in all likelihood required the use of Class A tools.

Therefore, based upon the Court's assessment of the credibility of the witnesses, and after evaluating the evidence presented, the Court finds that claimant did possess Class A tools on [*5]June 6, 1995, and that prison regulations in effect at that time required the State to provide constant direct supervision over this inmate and his tools. This requirement to provide constant direct supervision over the inmate in possession of Class A tools is intended to prevent their use in an assault or escape attempt. It is therefore reasonably foreseeable that without constant and direct supervision, an assault and/or escape could occur, which is exactly what occurred in the instant claim. The Court further finds, therefore, that this assault against claimant was a direct and proximate result of the State's failure to maintain constant direct supervision over claimant while he performed his work duties.

Since the only testimony before the Court established that claimant was intently involved in his work duties when he was assaulted from behind, the Court finds no basis to attribute any comparative negligence to claimant. Accordingly, the Court finds that the State is fully liable for the injuries suffered by claimant in this 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. The Court will set this matter down for trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY Footnotes

Footnote 1: Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.

Footnote 2:Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.