Jones v. State

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore HANCOCK; HANCOCK
Citation468 N.Y.S.2d 223,96 A.D.2d 105
PartiesLynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Deceased, Respondent, v. The STATE of New York, Appellant.
Decision Date04 November 1983

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.

Page 224

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 [96 A.D.2d 106] 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 [212 N.Y.S.2d 97], 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 [87 N.Y.S.2d 90]; De Coigne v Ludlum Steel Co., 251 App Div 662 [297 N.Y.S. 636] )" (Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; see Estupinan v. Cleanerama

Page 225

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 [96 A.D.2d 107] 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...

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12 practice notes
  • Cox v. Vill. of Pleasantville, No. 11–CV–6516 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 26, 2017
    ...to commit an assault or a battery." Parler v. N. Sea Ins. Co. , 129 A.D.3d 926, 11 N.Y.S.3d 659, 661 (2015) ; see also Jones v. State , 96 A.D.2d 105, 468 N.Y.S.2d 223, 227 (1983) ("The rule is that in an action for intentional tort, the wrongdoer will be held responsible for the injuries w......
  • Penree v. City of N.Y., 6:13-cv-01323 (MAD/ATB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 4, 2016
    ...target does not negate the conclusion that the act was done with the intention to commit an assault or a battery."); Jones v. State, 96 A.D.2d 105, 110-11 (4th Dep't 1983) (stating that the defendants do not escape liability because the intent was to injure someone else but the plaintiff wa......
  • Relf v. City of Troy, 527100
    • United States
    • New York Supreme Court Appellate Division
    • February 21, 2019
    ...against a person who was unintentionally injured by the instrumentality he released (see169 A.D.3d 1227 Jones v. State of New York, 96 A.D.2d 105, 110–111, 468 N.Y.S.2d 223 [1983], lv denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895 [1984] ). Supreme Court did not err in determining,......
  • Kessel v. Adams, 193
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 2020
    ...of "transferred intent" ( Rubino v. Ramos, 226 A.D.2d 912, 913, 641 N.Y.S.2d 409 [3d Dept. 1996] ; see Jones v. State of New York, 96 A.D.2d 105, 110–111, 468 N.Y.S.2d 223 [4th Dept. 1983], lv denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895 [1984] ; see also Borrerro, 165 A.D.3d at ......
  • Request a trial to view additional results
12 cases
  • Cox v. Vill. of Pleasantville, No. 11–CV–6516 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 26, 2017
    ...to commit an assault or a battery." Parler v. N. Sea Ins. Co. , 129 A.D.3d 926, 11 N.Y.S.3d 659, 661 (2015) ; see also Jones v. State , 96 A.D.2d 105, 468 N.Y.S.2d 223, 227 (1983) ("The rule is that in an action for intentional tort, the wrongdoer will be held responsible for the injuries w......
  • Penree v. City of N.Y., 6:13-cv-01323 (MAD/ATB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 4, 2016
    ...target does not negate the conclusion that the act was done with the intention to commit an assault or a battery."); Jones v. State, 96 A.D.2d 105, 110-11 (4th Dep't 1983) (stating that the defendants do not escape liability because the intent was to injure someone else but the plaintiff wa......
  • Relf v. City of Troy, 527100
    • United States
    • New York Supreme Court Appellate Division
    • February 21, 2019
    ...against a person who was unintentionally injured by the instrumentality he released (see169 A.D.3d 1227 Jones v. State of New York, 96 A.D.2d 105, 110–111, 468 N.Y.S.2d 223 [1983], lv denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895 [1984] ). Supreme Court did not err in determining,......
  • Kessel v. Adams, 193
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 2020
    ...of "transferred intent" ( Rubino v. Ramos, 226 A.D.2d 912, 913, 641 N.Y.S.2d 409 [3d Dept. 1996] ; see Jones v. State of New York, 96 A.D.2d 105, 110–111, 468 N.Y.S.2d 223 [4th Dept. 1983], lv denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895 [1984] ; see also Borrerro, 165 A.D.3d at ......
  • Request a trial to view additional results

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