Jones v. State

• Citation: 468 N.Y.S.2d 223,96 A.D.2d 105
• Parties: Lynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Deceased, Respondent, v. The STATE of New York, Appellant.
• Decision Date: 04 November 1983
• Court: New York Supreme Court Appellate Division

Page 223

468 N.Y.S.2d 223

96 A.D.2d 105

Lynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Deceased, Respondent, v. The STATE of New York, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 4, 1983.

Robert Abrams, Atty. Gen., Albany (Peter Dooley, Asst. Atty. Gen., Albany, of counsel), for appellant.

Cunningham, Pares & Renda, Buffalo (William Cunningham, Buffalo, of counsel), for respondent.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, GREEN and MOULE, JJ.

HANCOCK, Justice Presiding.

Herbert W. Jones, Jr., an account clerk employed by the state at Attica Correctional Facility, was taken hostage on September 9, 1971 during the Attica uprising. He died instantly on September 13, 1971 from a gunshot wound to the head caused by a .270 caliber bullet discharged by one of the state troopers during the rescue and retaking operation. In her claim against the state for Jones' wrongful death, claimant, his widow and administratrix, asserted two causes of action, the first for negligence and the second for intentional tort. In an earlier appeal to this court (Jones v. State of New York, 40 A.D.2d 227, 338 N.Y.S.2d 738) we reversed the Court of Claims, 69 Misc.2d 1034, 331 N.Y.S.2d 512, and dismissed the claim in its entirety. Because workers' compensation is the exclusive remedy for the claims based on negligence, the Court of Appeals affirmed our dismissal of the first cause of action (Jones v. State of New York, 33 N.Y.2d 275, 279, 352 N.Y.S.2d 169, 307 N.E.2d 236). As to the second cause of action based on intentional tort, ¹ however, it reversed and reinstated the claim stating: "Should the Judge in the Court of Claims find that the force used against the decedent was more than necessary under all the circumstances, then plaintiff is entitled to recover (Hinton v. City of New York, 13 A.D.2d 475 , supra; see, also, 3 N.Y. Juris., Assault and Battery, §§ 8, 11, at pp. 235, 238; 40 N.Y. Juris., Municipal Corporations, §§ 1003, 1009, p. 262)" (Jones v. State of New York, 33 N.Y.2d at 280, 352 N.Y.S.2d 169, 307 N.E.2d 236). The case now comes before us on the state's appeal from a judgment after trial awarding damages.

The general rule is, of course, that an employee injured in the course of employment is relegated to workers' compensation as his exclusive remedy (Workers' Compensation Law, §§ 11, 29, subd. 6). Where, however, injury results from "an intentional tort perpetrated by the employer or at the employer's direction, the [Workers'] Compensation Law is not a bar to a common-law action for damages (Lavin v. Goldberg Bldg. Material Corp., 274 App Div 690 ; De Coigne v Ludlum Steel Co., 251 App Div 662 )" (Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; see Estupinan v. Cleanerama Drive-In Cleaners, 38 A.D.2d 353, 354, 355, 329 N.Y.S.2d 448). To recover for his injuries under the intentional tort exception, the employee must establish that the employer used excessive force and that the acts of the employer constituting such excessive force were deliberate and not merely reckless (see Werner v. State of New York, 53 N.Y.2d 346, 352, 441 N.Y.S.2d 654, 424 N.E.2d 541; Finch v. Swingly, supra; 2A Larson, Law of Workmen's Compensation, §§ 68.00, 68.13); and the employee's burden of proof on these issues has been characterized as "heavy" (see Werner v. State of New York, supra, p. 352, 441 N.Y.S.2d 654, 424 N.E.2d 541).

Whether the injury is inflicted by the employer himself or by a co-employee, the basic rule is the same. Thus, where one employee assaults another and the act was neither instigated nor authorized by the employer, the employer will not be found liable in an action for damages under respondeat superior (see Thompson v. Maimonides Med. Center, 86 A.D.2d 867, 868, 447 N.Y.S.2d 308; O'Connor v. Midiria, 85 A.D.2d 896, 897, 446 N.Y.S.2d 739), for the offending employee's conduct, although intended by him, may be found accidental as to the employer and therefore compensable under workers' compensation with the result that the injured employee's common-law action is barred by the exclusivity provision (Workers' Compensation Law, §§ 11, 29, subd. 6) (see Werner v. State of New York, supra, 53 N.Y.2d p. 353, 441 N.Y.S.2d 654, 424 N.E.2d 541; Estupinan v. Cleanerama Drive-In Cleaners, supra, 38 A.D.2d p. 355, 329 N.Y.S.2d 448; Mazarredo v. Levine, 274 App.Div. 122, 80 N.Y.S.2d 237). Where, however, the assault by the co-employee was directed by the employer or committed at the employer's instigation, common law liability may result (Lavin v. Goldberg Bldg. Material Corp., supra).

The question is whether, applying the above rules, the evidence adduced on the trial is sufficient to support liability under the intentional tort exception. We find that it is and that the judgment should be affirmed.

The Court of Appeals has not, in either Werner v. State of New York (supra) or Jones v. State of New York (supra), specified what degree of force will be viewed as sufficiently excessive to impose liability on the state for an intentional assault. By any definition of "excessive force", however, we agree with the Court of Claims that the force employed here "in retaking the facility" was "indeed excessive." A full-scale armed assault was planned and carried out for the purpose of retaking control of the prison from the inmates and freeing the hostages. Almost 700 men, including 262 state troopers and 423 correction officers from both Attica and Auburn Correctional facilities plus some park policemen from Letchworth State Park, participated. They were armed with a wide variety of weapons including .270 caliber rifles suitable for big game hunting and other high-powered rifles of various calibers, .38 and .357 caliber pistols, 12 gauge shotguns loaded with "OO" buckshot, a .44 Magnum Ruger carbine and .45 caliber Thompson machine guns. Their orders were to fire when in their judgment an "overt act" was in progress which threatened the life of one of the hostages, each of whom was being physically held from behind by an inmate. After an immobilizing type of tear gas was dropped for the purpose of putting the inmates "on the ground", the assault team fired hundreds of rounds of ammunition of various descriptions in the direction of the prisoners and hostages, most of whom were grouped in D yard--including 261 rounds of 12 gauge shells, each containing 9-12 pellets of buckshot which would spread into a 24-inch wide pattern at 150 feet. It was a cloudy day and visibility was obscured by the tear gas and the smoke from smoldering fires in the prison. The gas masks that members of the assault group were wearing made it difficult and in some cases impossible to aim through the rifle sights. The firing resulted, the court found, in the deaths of ten prison employees held as hostages and 32 inmates; 33 employees were injured.

Opinions differ as to whether the circumstances called for the use of any fire power. ² In our view, however, the testimony reveals no instance where one of the hostages was observed by a member of the assault team to be in such imminent danger of being killed as to justify the extreme risk to him and to others of firing under conditions of reduced visibility for the purpose of hitting a threatening inmate at a distance of 100 yards or more. The proof is overwhelming that much of the firing was haphazard and directed indiscriminately at the group of prisoners and hostages in D yard and that most, if not all, of it was unwarranted as a reasonable means of protecting the hostages from harm. Under any conception of the proof, this massive use of fire power directed at the group of inmates and hostages (with the obvious risk to the hostages, some of whom were held as shields for the inmates) cannot have been necessary and cannot be considered to have been the employment of a degree of force that was appropriate or one that was justified by any or all of the existing circumstances. Such a degree of force, we hold, was "more than necessary under all the circumstances" (Jones v. State of New York, 33 N.Y.2d 275, 280, 352 N.Y.S.2d 169, 307 N.E.2d 236, supra). Claimant, we find, has met her heavy burden of proof on this issue (see Werner v. State of New York, supra, 53 N.Y.2d p. 352, 441 N.Y.S.2d 654, 424 N.E.2d 541). ³

The finding that excessive force was employed does not end our analysis. As pointed out, to remove from the state its protection of the exclusivity provisions (Workers' Compensation Law, §§ 11, 29, subd. 6) so as to subject it to common-law liability for intentional tort, it must appear that the offending actions were those of the state, i.e., that the conduct of its agents was perpetrated by it or at its direction (Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266, supra). On this issue also, we find that claimant has met her burden of proof.

The retaking was carried out as part of a carefully orchestrated plan prepared by officials of the State Police and Department of Corrections with the approval of the highest officers in state government. The deployment of the assault team (armed with the above-described weapons...