Schittino v. State

• Decision Date: 17 June 1999
• Citation: 692 N.Y.S.2d 760,262 A.D.2d 824
• Parties: John SCHITTINO, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 760

692 N.Y.S.2d 760

John SCHITTINO, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

June 17, 1999.

John D.B. Lewis (Gary E. Divis of counsel), New York City, for appellant.

Eliot Spitzer, Attorney-General (Frank K. Walsh of counsel), Albany, for respondent.

Before: MIKOLL, J.P., MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

MIKOLL, J.P.

Appeal from a judgment of the Court of Claims (King, J.), entered June 29, 1998, upon a decision of the court in favor of the State.

Claimant, an inmate at Great Meadow Correctional Facility in Washington County, alleged in this negligence action that the State was responsible for injuries he sustained when another inmate threw a five-gallon urn of hot coffee at him. Following a bifurcated trial on the issue of liability, the Court of Claims determined that the State was not negligent and plaintiff appeals.

The events leading up to the assault were recounted by claimant as follows. For some time prior to the incident date, claimant had voluntarily remained in his cell through meals and recreation time because of actual and perceived threats of violence from other inmates based upon the sex offenses for which he was incarcerated. At approximately 7:30 A.M. on July 8, 1993, while sleeping in his cell, he was awakened by Lawrence Gaines, an inmate assigned to "feed-up" duties, i.e., distributing food to those inmates who did not eat with the general prison population in the cafeteria. Gaines kicked the bars of claimant's cell to rouse him and thereafter demanded "sugar" (an extortion payment) from claimant. ¹ When claimant replied that he had nothing left to give, Gaines threw the contents of a one-half gallon container of coffee through the bars at him. Claimant then threw a cup of liquid at Gaines' face. According to claimant, Gaines "went ballistic", and paced up and down in front of claimant's cell for a period of "two to two and a half minutes". screaming threats and obscenities at him. During this interval, claimant testified, the two correction officers who were in charge of his area remained seated at a table some 20 to 25 feet away and did nothing to intervene except to instruct Gaines to get back to work. Gaines then removed the top from a five-gallon urn of hot coffee and threw it at claimant, causing extensive first and second degree burns.

Neither of the two correction officers assigned to claimant's area of the prison testified at trial. A third officer, K. Aubin, who witnessed most of the incident while moving his group of inmates through the area, testified that he saw claimant throw the liquid at Gaines and that the latter retaliated "almost instantly". Although he did not see Gaines throw any liquid at claimant first, he acknowledged the possibility that this had occurred.

The State's duty to an incarcerated person encompasses protection from the foreseeable risk of harm at the hands of other prisoners. Because the State is not an insurer of an inmate's safety, it will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable (see, Blake v. State of New York, --- A.D.2d ----, 686 N.Y.S.2d 219; Pierrelouis v. State of New York, 255 A.D.2d 824, 682 N.Y.S.2d 110; Stanley v. State of New York, 239 A.D.2d 700, 657 N.Y.S.2d 481; Colon v. State of New York, 209 A.D.2d 842, 620 N.Y.S.2d 1015). Applying these well-settled principles here, we conclude that the Court of Claims properly determined that claimant failed to make the requisite showing.

We note at the outset that claimant does not contend that Gaines was a "known, dangerous prisoner [so as to] place the State on notice of an increased likelihood of an assault and impose a heightened duty to take special precautions" (Colon v. State, supra, at 844, 620 N.Y.S.2d 1015; see, Littlejohn v. State of New York, 218 A.D.2d 833, 630 N.Y.S.2d 407; Dizak v. State of New York, 124 A.D.2d 329, 508 N.Y.S.2d 290). To the extent that claimant argues that Gaines' violent propensities and inmate disciplinary history rendered him unsuitable for duties as a "feed up worker", the State's discretionary decision to employ Gaines in that capacity is insulated by a qualified immunity (C. v. State of New York, 188 A.D.2d 506, 591 N.Y.S.2d 431, lv. denied 82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305) and, based upon our review of the record, we find no bad faith or lack of a reasonable basis for the discretionary decision.

Claimant next maintains that the State violated a regulation or established procedure requiring a correction officer to accompany the feed up worker during the performance of his tasks. The record does not support his allusions to such a mandate. Although claimant testified to such a practice elsewhere in the facility, this testimony was insufficient to establish the existence of a prison regulation, policy or procedure requiring that this be done. In fact, claimant testified that the guards in his location always sat at the table during feeding times and the testimony cited by claimant does not persuade us otherwise.

In essence, therefore, claimant's claim is bottomed upon the State's...