Opinion
# 2015-015-597 Claim No. 113330
03-09-2015
WILLIE COCHRAN v. THE STATE OF NEW YORK
Willie Cochran, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Following trial, court found defendant liable for inmate's injuries which occurred when he was assaulted by another inmate in the small engine repair shop of the prison.
Case information
| UID: | 2015-015-597 |
| Claimant(s): | WILLIE COCHRAN |
| Claimant short name: | COCHRAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 113330 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Willie Cochran, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 9, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, seeks damages for injuries allegedly sustained when he was assaulted by another inmate at Great Meadow Correctional Facility (Great Meadow). The issue of liability was tried on December 9, 2014.
Claimant testified that an inmate identified at trial as inmate Trail struck him in the head with a hammer while he was working in the small engine shop at Great Meadow on November 20, 2006. Although inmate Trail approached and struck him from behind, claimant explained that he was able to identify inmate Trail as his assailant because, following the initial attack, inmate Trail continued pursuing him with the hammer. Claimant testified that another inmate summoned Mr. Felt, the civilian Shop Supervisor, for assistance. According to the claimant, Mr. Felt was in his office at the time of the assault and no security staff were present. Mr. Felt confiscated the hammer from inmate Trail without incident and claimant was taken to the medical unit for treatment. Claimant testified that he was interviewed by a Sergeant who indicated that inmate Trail had apparently taken offense to something claimant said. Claimant testified that, prior to the assault, he had informed Mr. Felt that he and inmate Trail "had some words," but he was unable to recall with particularity the substance of the conversation or when it occurred.
On cross-examination, claimant testified that no one else was present when he informed Mr. Felt of the problem he was having with inmate Trail and conceded that neither his notice of intention to file a claim nor his initial claim mention the purported verbal notification. Rather, this allegation first appeared in an amended claim. Claimant explained, however, that he is unable to read or write and obtained the assistance of other inmates in drafting his notice of intention and subsequent claims. He also testified that his memory was "messed up" but it was unclear whether or not this was a consequence of the injuries he sustained in the subject assault.
Defendant called Lieutenant Darrin Williams who, at the time of the subject assault, was a Sergeant at Great Meadow Correctional Facility. Lieutenant Williams testified that in 2006 he "sat in" on Program Committee meetings in his capacity as the Security Supervisor. He stated that programming decisions are made by both the Committee Director and someone from security. Reviewing inmate Trail's prison disciplinary history (Exhibit D), the witness stated that there was nothing that would prevent him from being assigned to the small engine shop. According to Lieutenant Williams, inmate Trail had only been charged with two unauthorized exchanges and possession of a weapon but no violent conduct prior to the date of the subject incident.
John D. Scroggy is a Supervising Offender Rehabilitation Coordinator at Great Meadow Correctional Facility. At the time of the subject assault, Mr. Scroggy was a Correction Counselor in the Behavioral Health Unit and was not involved in the Program Committee. Claimant's objection to this witness' testimony was sustained as he was not identified as a potential witness prior to trial and had no relevant testimony to offer.
Administration of the prison system is a classic governmental function (Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475 [2009]; Sebastian v State of New York, 250 AD2d 260 [4th Dept 1998], affd 93 NY2d 790 [1999]) for which liability may only attach for breach of a special duty owed to the claimant separate and apart from the public at large (Metz v State of New York, 20 NY3d 175 [2012]; Valdez v City of New York, 18 NY3d 69, 75 [2011]; Dinardo v City of New York, 13 NY3d 872 [2009]; Lauer v City of New York, 95 NY2d 95, 100-101 [2000]). In McLean v City of New York (12 NY3d 194, 199 [2009]), the Court of Appeals set forth the three ways in which a special duty to the claimant may arise:
" '(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation' " (quoting Pelaez v Seide, 2 NY3d 186, 199-200 [2004]).
Whether the existence of a special duty in the case at bar is premised upon the violation of Correction Law § 70 (2) (c), requiring the establishment of treatment programs with due regard to "[t]he health and safety of every person in the custody of the department," or a voluntary assumption of duty, the law is clear that the State is charged with a duty to safeguard inmates from foreseeable assaults by other inmates. As stated by the Court of Appeals in Sanchez v State of New York (99 NY2d 247, 252 [2002]):
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (see also Flaherty v State of New York, 296 NY 342 [1947]).
This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of inmate safety (Sanchez v State of New York, 99 NY2d at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which includes not only what the defendant knew but what it 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, 99 NY2d at 254; see also Vasquez v State of New York, 68 AD3d 1275 [2009]; Di Donato v State of New York, 25 AD3d 944 [2006]). Thus, liability may arise from what the State knew or should have known regarding: (1) the risk of harm to a class of inmates which included the victim (Sanchez, supra), (2) the dangerous propensities of the assailant (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]), or (3) the risk of an assault and the failure to prevent it despite an opportunity to do so (Huertas v State of New York, 84 AD2d 650 [3d Dept 1981]; see also Sandlin v State of New York, 294 AD2d 723, 725 [3d Dept 2002]; Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Evans v State of New York, 11 Misc 3d 1065 [A] [Ct Cl 2006]). At issue here is the second category of circumstances set forth above - what the defendant knew or should have known regarding the dangerous propensities of the assailant. While Lieutenant Williams testified that prior to the date of the subject assault inmate Trail's disciplinary record relating to his most recent New York State imprisonment revealed no instances of violent conduct and nothing to prevent his selection for participation in the small engine program, the record itself (Exhibit D) bespeaks a lengthy history of violent conduct. In March 2004 inmate Trail was found guilty of fighting and creating a disturbance. In September 2004 he was found guilty of an assault on another inmate, creating a disturbance and possession of a weapon. Moreover, in the record entitled "Description of Pattern of Criminal Behavior" (created August 18, 2003 upon his receipt into State custody), inmate Trail's lengthy criminal history is noted to include eight felonies, eight misdemeanors and two violation level convictions, with five New York State incarcerations and a criminal history in both Florida and California. The writer specifically states:
A notation "Dis. rev. : 09/14/05" appears on this record. Notwithstanding the fact that this notation may indicate the determination of guilt was reversed, absent facts inconsistent with the determination of guilt, it nevertheless provides a factual predicate for the conclusion that the State was on notice of inmate Trail's violent propensities (see Schnorr v Emeritus Corp., 118 AD3d 1307 [4th Dept 2014][prior altercations with other residents of assisted living facility may provide factual predicate for determination that defendant had notice of resident's violent or aggressive tendencies]).
"His pattern of criminal history appears to be assaultive and larcenous in nature. His criminal history is escalating to committing murder. He has a history of weapons possession and assault on inmates when incarcerated. He has served probation, local jail, 4 NYSDOCS incarcerations and parole supervision with numerous parole revocations. Relative to the instant offense, while the subject was on parole, he caused the death of a male by striking him multiple times about the head and face with a hammer. He admits to guilt stating 'we had a beef' " (Exhibit D [emphasis added]).
Defendant's knowledge of inmate Trail's propensity for violence, including the fact that he is currently imprisoned for killing someone with a hammer, leads this Court to conclude that defendant was negligent in selecting him for participation in the small engines program where he had access to potentially dangerous tools and the opportunity to use them in an assaultive manner (cf. Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012] [inmate-on-inmate assault with a hot pot was not reasonably foreseeable]; Dizak v State of New York, 124 AD2d 329 [3d Dept 1986] [disciplinary history was insufficient to place defendant on notice that inmate would commit a violent assault with a pick ax]; Gangler v State of New York, 21 Misc 3d 1124 [A] [Ct Cl 2006], affd 41 AD3d 1214 [4th Dept 2007] [use of class A tools required constant supervision]; Casella v State of New York, 121 AD2d 495 [2d Dept 1986] [evidence was insufficient to conclude that claimant's assailant was more dangerous than any other inmate so as to require special precautions]). As made clear by the Appellate Division, Third Department, in Littlejohn v State of New York (218 AD2d at 834) " 'a known dangerous prisoner may place the State on notice of an increased likelihood of an assault and impose a heightened duty to take special precautions' " (quoting Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]; see also Blake v State of New York, 259 AD2d 878 [3d Dept 1999]). Here, like the facts in Littlejohn, the record fails to reflect that inmate Trail's propensity for violence was treated or otherwise abated in the three-year period since the date of his arrest and confinement for killing someone with a hammer (cf. Perez v State of New York, UID No. 2009-030-016 [Ct Cl, Scuccimarra, J., June 15, 2009]; Hann v State of New York, 137 Misc 2d 605 [Ct Cl 1987]). The fact that the claimant was injured by Mr. Trail, with a hammer, was entirely foreseeable and could have been prevented with the exercise of reasonable care. Given inmate Trail's propensity for violence and history of assaults on other inmates, it was unreasonable, upon the record at trial, to provide him access to the type of tools used for the commission of the very crime for which he remains incarcerated. The Court finds that claimant established by a preponderance of the credible evidence that the negligence of the State was the proximate cause of his injuries.
Notwithstanding the breach of a special duty to the claimant, dismissal may nonetheless result if the State, having engaged in a governmental function, establishes that the conduct for which recovery is sought was discretionary (Valdez v City of New York, 18 NY3d at 75-76). Unlike the issue of duty, which is an element of claimant's negligence cause of action, governmental function immunity is an affirmative defense which must be timely raised as a defense to avoid waiver (Valdez v City of New York, 18 NY3d at 76). While an argument could be made that the decision to place inmate Trail into the small engine program was a discretionary one for which the State is immune from liability in the absence of bad faith or the lack of a reasonable basis for the decision (see Schittino v State of New York, 262 AD2d 824, 825 [3d Dept 1999]; C. v State of New York, 188 AD2d 506 [1992], lv denied 82 NY2d 655 [1993]; but see Haddock v City of New York, 75 NY2d 478 [1990]), no such defense was raised here. Accordingly, the State is not immune from liability for the breach of its duty to protect claimant from foreseeable harm.
The Court of Appeals in Valdez v City of New York (18 NY3d at 78) noted that some of the lingering confusion concerning the relationship between the special duty rule and the governmental function immunity defense is attributable to state or municipal defendants who often waived the defense by failing to raise it in their answer.
Based on the foregoing, the Court finds defendant 100% responsible for claimant's injuries. The Court will schedule a trial on the issue of damages in the near future. The parties are advised to make any motions that may be necessary to secure the issuance of subpoenas in order to obtain certified records or witnesses for trial within 30 days of the date this Decision is filed.
Let interlocutory judgment be entered accordingly.
March 9, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims