In a claim alleging that claimant, a visitor at a correctional facility, was assaulted by a correction officer as she was exiting the visitor area, the State and the claimant both filed motions for summary judgment on the issue of liability. The State's motion was granted, in part, dismissing the third cause of action for negligent hiring, training and supervision. The State's motion was denied on other grounds as the Court determined that the description of the location in the Notice of Intention was sufficiently definite and the factors to be applied pursuant to the Court of Appeals decision in Rivera v State of New York raised issues of fact as to whether the correction officer was acting within the scope of her employment. Claimant's cross-motion for summary judgment was denied.
|Claimant short name:||PETERSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||FITZSIMMONS, NUNN & PLUKAS, LLP
BY: Mark S. Nunn, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 13, 2020|
|See also (multicaptioned case)|
Claimant Katieria Peterson served a Notice of Intention to File a Claim (Notice of Intention) upon the Office of the Attorney General of the State of New York (Attorney General) on July 11, 2011 alleging that on June 8, 2011 she was seriously injured when she was assaulted by a correction officer employed by the defendant. A claim no. 120381 was filed on September 22, 2011 and served the Attorney General on September 23, 2011. The claim alleges three causes of action, the first alleging negligence, gross negligence, carelessness and recklessness; the second, intentional assault and battery; and the third, negligent hiring, training and supervision of a correction officer who was involved in an incident from which this claim arises. The claim alleges that the incident took place at a Department of Corrections and Community Supervision (DOCCS) facility known as the Wende Correctional Facility (Wende). On November 2, 2011, the defendant State of New York (State) filed an answer denying the allegations in the claim. The State now moves for summary judgment dismissing the claim and claimant has filed a cross-motion in which she also seeks summary judgment.DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In order to commence an action against the State in the Court of Claims, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless within the same time period, a notice of intention to file a claim is served personally or by certified mail, return receipt requested, in which event the claim must be filed and served within two (2) years of accrual of a claim caused by negligence or an unintentional tort or within one (1) year of accrual of a claim caused by an intentional tort (Court of Claims Act §§ 10 [3-b] and 11 [a] [i]). Court of Claims Act § 11 (b) provides, in relevant part, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained." This statute has been interpreted by the courts to require that the notice of intention set forth "sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]; see Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]). It has been held that the failure to comply with these statutes deprives this Court of jurisdiction as these pleading requirements constitute substantive conditions on the State's waiver of sovereign immunity which is not absolute (Lepkowski v State of New York, 1 NY3d 201, 206-207, 209 ). Furthermore, it has been held that "because suits against the State are allowed only by the State's waiver of its sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Kolnacki v State of New York, 8 NY3d 277, 280 , citing Lichtenstein v State of New York, 93 NY2d 911, 913 ; quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ).
The State's motion for summary judgment first contends that the claim must be dismissed as the Court lacks jurisdiction because the Notice of Intention fails to set forth an adequate description of the location where the claim arose, one of the five substantive conditions required by Court of Claims Act § 11 (b) [section 11 (b)]. The Court of Appeals has stated that the "guiding principle informing section 11(b)" is that the description be sufficiently definite "to enable the State . . . to investigate the claim(s) promptly and to ascertain its liability under the circumstances" (Lepkowski, supra at 207). The Appellate Division, Fourth Department has held that "[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable [defendant] to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Mosley v State, 117 AD3d 1417, 1418 [4th Dept 2014]).
The Notice of Intention states that the claim arose "at the Wende Correctional Facility, 3040 Wende Road, Alden, New York" and that claimant was injured "while a visitor at the Wende Correctional Facility". The nature of the claim is stated to be that "[claimant's] injuries occurred as a result of the careless and negligent actions by one or more correctional officers who were acting within the scope of their employment with the State of New York including but not limited to the use of excessive force without cause or provocation on the part of the claimant. Claimant's left leg was injured when she was struck from behind by a corrections officer with a club or baton without any warning" (Exhibit A). As such, this claim is distinguishable from claims in which the negligence alleged is due to the existence of a dangerous condition such as in trip and fall or slip and fall incidents. In such cases, the courts have found a notice of intention deficient where the description stated does not describe with particularity the approximate location, such as a claimant who was struck while walking along a 1000 foot frontage of roadway (Sheils v State of New York, 249 AD2d 459 [2d Dept 1998]); where the claimant alleged that he slipped and fell on snow and ice on the sidewalk abutting a hospital (Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]); or where the notice of intention failed to adequately identify "a particular road or place on such road where claimant allegedly fell" so as to provide the State with prompt notice of an occurrence and an opportunity to investigate the facts surrounding the claim (Wilson v State of New York, 61 AD3d 1367, 1368 [4th Dept 2009]).
The present claim does not require the same degree of exactness as in Sheils, Triani and Wilson as the condition of the property where this incident occurred was not the cause of the underlying claim nor did it contribute to the happening of the incident. Here, the Notice of Intention states that claimant was injured when she was assaulted in an altercation with unnamed correction officers. The issue is whether the description of the location as the "Wende Correctional Facility at 3040 Wende Road, Alden, New York" and "while a visitor at the Wende Correctional Facility" provided sufficient definiteness to enable the State to investigate and determine its culpability to meet the standard required by section 11 (b).
The decision of the Appellate Division, Fourth Department in Mosley provides guidance to a determination in the present claim. In that appeal, the Fourth Department reversed the decision of the Court of Claims dismissing a claim where the notice of intention had misnamed the facility where the claim arose but had included the proper address and stated that claimant "slipped on ice and snow on the walkway" as she "approached the entry to [the] correctional facility" (Mosley, supra). The Fourth Department found this description sufficiently described the location of a dangerous condition, even though it did not identify the location of the walkway and misidentified the name of the facility where the accident occurred, ruling that "[c]laimant provided the proper address where the claim arose, which showed that her fall occurred at the Orleans Correctional Facility, and not at the Orleans County Jail, which is located on a different street." Importantly, the Fourth Department in Mosley did not find the description of the location deficient because it failed to identify the specific entry to the correctional facility where claimant allegedly slipped and fell. The Fourth Department ruled that the identification of the correctional facility with its correct address and a description of the location as the walkway approaching the entry to the correctional facility was sufficiently specific to meet the statutory standard of section 11 (b). The present Notice of Intention states the correct name and address of the correctional facility and that the incident occurred while claimant was a visitor. However, claimant did not include that it occurred in the Wende visitor center. The Court takes judicial notice that the nature of a correctional facility requires that access for those visiting inmates must be restricted to a supervised and controlled location. As such, a description indicating that the location was "while a visitor at Wende" sufficiently identified the claimant as a visitor who was visiting an inmate. There is nothing in the Notice of Intention that would lead the State to conclude that claimant was at Wende for any other purpose.
As a result, the Court finds that the Notice of Intention provided the State with a description of the location with sufficient definiteness. What is required by section 11 (b) is not absolute exactness, but simply a statement with sufficient definiteness to enable the State to investigate the facts surrounding the claim promptly and ascertain its liability under the circumstances (Donahue v State of New York, 174 AD3d 1549 [4th Dept 2019], citing Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). Accordingly, the Court finds that the Notice of Intention and its description of the location satisfies section 11 (b) and the State's motion for summary judgment on this basis is denied.
The State next contends that the third cause of action in the claim alleging negligent hiring, training and supervision should be dismissed as it is not alleged in the Notice of Intention. As stated, one of the five necessary elements of a notice of intention required by section 11 (b) is a description of the nature of the claim. The Notice of Intention states that claimant's injuries "occurred as a result of the careless and negligent actions by one or more correctional officers who were acting within the scope of their employment with the State of New York" (Exhibit A). The Notice of Intention clearly alleges that the correctional officers involved were acting within the scope of their employment, whereas a cause of action for negligent hiring, training and supervision necessitates a showing that the involved employees were acting outside the scope of their employment (Talavera v Arbit, 18 AD3d 783 [2d Dept 2005]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1472 [4th Dept 2009]). Claimant contends that its use of the phrase "including but not limited to" in the Notice of Intention described the nature of the claim to advise the State so that it could investigate and determine its liability under multiple theroies of liability, including the third cause of action alleging negligent hiring, training and supervision of correction officers. However, there are no allegations in the Notice of Intention that any correction officer was acting outside the scope of their employment or that the State knew or should have known of the propensity of any correction officer to engage in acts outside the scope of their employment that would provide notice for this cause of action (see Hicks v Berkshire Farms Ctr & Servs. for Youth, 123 AD3d 1319 [3d Dept, 2014]). As such, I find that the third cause of action was not alleged with the requisite specificity in the Notice of Intention. Accordingly, the Notice of Intention served on July 11, 2011 did not extend claimant's time to file and serve a claim alleging a cause of action for negligent hiring, training and supervision. Thus, a claim alleging such a cause of action had to be served and filed within ninety (90) days of accrual, or by September 6, 2011. Here, the claim was filed September 22, 2011 and served September 23, 2011, more than ninety (90) days after the claim occurred. As the cause of action for negligent hiring, training and supervision was untimely filed and served, the third cause of action in the claim must be dismissed (Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]; Langner v State of New York, 65 AD3d 780 [3d dept 2009]; Court of Claims Act § 10 ).
Finally, the State seeks to dismiss the claim contending that whether the claimant's description how the incident occurred or Correctional Officer Johnson's (CO Johnson's) version is accepted as true, neither provides a basis for liability against the State. The claimant testified that she was struck from behind and brought to the ground for no reason by CO Johnson while she was waiting to leave the facility by the visiting room gate. On the other hand, CO Johnson testified that she was attacked by claimant at the same location as she was speaking to claimant and attempting to locate the sergeant to report claimant's repeated physical contact with her during claimant's visit with inmate Randall Peterson.
The State first contends that if claimant's allegations against CO Johnson are accurate, CO Johnson's actions were not within the scope of employment of a correction officer and as such, there can be no vicarious liability against the State on the legal theory of respondeat superior. In support, the State relies upon the recent Court of Appeals decision in Rivera v State of New York, 34 NY3d 383 (2019). In Rivera, the Court of Appeals affirmed the decision of the Court of Claims granting summary judgment to the State in a claim brought by an inmate assaulted by correction officers alleging assault and battery under the theory of respondeat superior. Unlike the present claim, the facts in Rivera were undisputed and established that the inmate was seriously injured after being beaten in an unprovoked assault by three correction officers. The correction officers involved were subsequently the subjects of an internal investigation and were later charged with multiple disciplinary violations, including providing false or misleading statements to the DOCCS Inspector General. Two of the involved officers were found to have engaged in the inappropriate use of force and one was criminally prosecuted for the assault and after a mistrial, pled guilty to official misconduct. All three correction officers lost their jobs with DOCCS.
The issue before the Court of Appeals was whether the Court of Claims had erred in concluding that the State met its summary judgment burden and had established that it could not under these facts be liable under the doctrine of respondeat superior. The Court of Appeals held that the factors to be considered in determining whether an employee acted within the scope of employment for purposes of vicarious liability include:
"the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated (i.e., whether it was foreseeable)." Id. at 390.
In relating these factors, the Court of Appeals held that whether an employee acted within the scope of employment is a fact-based inquiry, but that in Rivera the question could be resolved on summary judgment as the material facts were undisputed. In the present claim, however, the facts are very much in dispute.
For purposes of the State's motion for summary judgment based upon the contention that CO Johnson acted outside the scope of her employment, the Court must construe the evidence in a light most favorable to claimant. Accepting as true claimant's allegations that she was assaulted in an unprovoked attack, the Court must also consider and weigh CO Johnson's conflicting testimony. And in order to rule in the State's favor, the Court must evaluate these facts in light of the factors cited by the Court of Appeals in Rivera to determine whether CO Johnson acted within the scope of her employment.
The claimant alleges that she was struck by CO Johnson and brought to the ground for no apparent reason as claimant was leaving the visiting area at the facility (Defendant's Exhibit B). On the other hand, CO Johnson's testimony was that immediately prior to the incident, she was standing by the desk in visiting room 2 near the exit gate with CO Diane Hicks; that her duties were to oversee everything that went on in the visit room with the inmates and their visitors; that she was standing by the desk near the visiting room vending machines and observed claimant and inmate Peterson approaching; and that as claimant passed by she struck CO Johnson "very aggressively" with an open hand on her left shoulder. CO Johnson then testified that she immediately went to the desk where CO Hicks was stationed and informed her what had just occurred; that she then followed claimant out of the visiting room, approached and informed claimant that she should not place her hands upon her; and that in response claimant placed both of her hands on CO Johnson and ripped her shirt. CO Johnson testified that she then took her right leg and swept claimant's legs in order to get her to the ground and prevent her from doing anything further; and that she also fell to the floor and was able to secure claimant's arms until assistance arrived (Defendant's Exhibit G, Claimant's Exhibit J, S, U and W).
The Court also considers the testimony of CO Diane Hicks and Sergeant Dennis Minnick (Sgt. Minnick). Co Hicks was working in the visitor room with CO Johnson on the day of the incident. CO Hicks deposition testimony was that claimant had previously violated regulations for visitors, frequently received warnings and was considered one of the problem visitors. On the day of the altercation, CO Hicks testified that she observed claimant bump CO Johnson on her left shoulder and "rock her" when claimant was in the process of leaving the visiting room. CO Hicks testified that CO Johnson then stated to her that she was going to get the supervisor (a sergeant) to talk to claimant before claimant left the Wende visiting area. CO Hicks testified that she did not view the altercation as it began as she was involved getting inmate Randall Peterson back into the visit room. CO Hicks stated that when she returned she observed that CO Humig and CO Hunt had gone through the visit gate to take control of claimant and assist CO Johnson to her feet (Claimant's Exhibit P).
Sgt. Minnick, who was in-charge of the visitor area, testified at his deposition that if a floor officer or other correction officer is present, a correction officer may leave the visiting room to obtain paper work at the front desk. Whether a correction officer could leave the visiting room for any other purpose, including following a visitor out of the visiting room area remains an unresolved issue as Sgt. Minnick was not permitted to answer that question at his deposition. Furthermore, Sgt. Minnick testified that a correction officer may use force to restrain a visitor, but only if it is necessary (Claimant's Exhibit N).
The depositions of CO Johnson, CO Hicks and Sgt. Minnick raise numerous issues of fact pertaining to a determination of the factors outlined in Rivera, including whether claimant had violated rules of inmate visitation on the day of the incident; whether CO Johnson followed DOCCS procedures under these circumstances in leaving the visit room to inform the desk sergeant and/or speak with claimant; whether the use of force employed by CO Johnson on claimant was necessary and in accordance with DOCCS procedures and appropriate under the circumstances present; and whether CO Johnson instigated an altercation with claimant or whether she was acting in self-defense. Claimant has raised distinct factual issues, including whether claimant was attacked without provocation or warning by CO Johnson and alternatively, whether DOCCS provided adequate and appropriate instruction and training to correction officers like CO Johnson as to when physical force is necessary and may be utilized with a person visiting an inmate; and whether in this instance CO Johnson applied excessive force. Accordingly, the existence of these issues of fact relating to a determination of the factors to be applied consistent with Rivera requires a denial of the State's motion for summary judgment on the issue of liability.CLAIMANT'S MOTION FOR SUMMARY JUDGMENT
Claimant also moves for summary judgment on the issue of liability. In construing the evidence in a light most favorable to the defendant, CO Johnson's testimony is diametrically opposed to claimant's testimony, which in and of itself creates numerous questions of fact as stated above. In support of her motion, claimant also includes the affidavit of Donald L. Leach II, who attests to being an expert in correctional management issues. Mr. Leach concludes that there was no valid correctional purpose for CO Johnson to follow claimant into the hallway outside of the visitor's room when claimant no longer posed an objective threat and therefore, the use of force upon claimant was unreasonable and negligent. In order to reach this conclusion, Mr. Leach reaches numerous factual and legal conclusions that are solely within the province of the Court to determine and as such, his affidavit does not eliminate but only highlights the issues of fact relevant to a determination of liability.
In addition, many of Mr. Leach's conclusions, including his opinion that CO Johnson's use of a leg sweep was prohibited by her training with DOCCS are also issues of fact and they are contested by the State in the affidavit of Stewart T. Eckert, currently the Supervising Superintendent of ten correctional facilities known as the Wende Hub. Superintendent Eckert concludes that the actions of CO Johnson did not deviate from or violate DOCCS rules and regulations and that she did not use excessive force. Accordingly, as there are numerous questions of fact claimant's motion for summary judgment on the issue of liability is also denied.
Based on the foregoing, defendant's motion no. M-95734 is granted to the extent of dismissing claimant's third cause of action for negligent hiring, training and supervision, but is otherwise denied; and claimant's cross-motion no. CM-95735 for summary judgment is denied.
October 13, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1) Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley, Esq., sworn to July 30, 2020 with annexed Exhibits A-W;
2) Affidavit in opposition of Mark S. Nunn, Esq. dated August 13, 2020;
3) Reply affidavit of Assistant Attorney General Michael T. Feeley, Esq., sworn to September 28, 2020;
4) Notice of cross-motion and affirmation of Mark S. Nunn, Esq., dated August 3, 2020 with annexed Exhibits A-M; Affidavit of Kateria Peterson sworn to August 3, 2020 and Affidavit of Donald L. Leach, II, sworn to July 31, 2020 with annexed Exhibit A; and
5) Responding affidavit of Assistant Attorney General Michael T. Feeley, Esq., sworn to September 2, 2020 with annexed Exhibits.