looked like a "bodybuilder," one looked "crazy," and the other
was "a small fellow." Tr. at 392. They "were looking at [him]."
Id. About five minutes later they came up to the table and
asked him: "what am I in there for[?]" "what do I do for a
living[?]" and "where do I come from?" Tr. at 393. Apparently
fearing repercussions if he told them the truth, he said that he
"was in for drugs or attempted murder, or something like that."
Id. He eventually returned to his cell, but about ten minutes
later, one of the inmates came to the cell and asked him to go to
the end of the tier. He agreed, and was taken to a cell where
there were "about five or six inmates." Tr. at 394. There were no
guards in the area at that time. Once inside the cell, he was
again questioned about "[w]hat [he's] in there for; what do[es he
do] for a living; where do[es he] come from." Id. One of the
inmates "was wagging the article" and said, "I know what you're
in here for." Id. Another said, "[T]his is an inmate trial."
After the inmate trial was concluded, nothing happened, and
Arnold returned to his cell. About five or ten minutes later,
"they all came to the cell," Tr. at 395, asked him to come out,
which he did, and asked him the same questions. As they were
debating, "should we or shouldn't we," one of the inmates
"plastered [his] head." Tr. at 396. He "saw nothing but stars,"
but went back into his cell as "they were still punching [him],"
and crawled into his bunk. Tr. at 396-97. Still, there were no
correction officers in sight. About "a couple of minutes later,"
these inmates came into his cell, threw him down to the bottom
bunk, and were "punching [him] and kicking [him] all over the
place." Tr. at 397. He thought he was "going to die," "screamed
out for help," and then heard officer Feldon, who he had not seen
during either beating, say "[t]hat's enough." Tr. at 398. The
beating then stopped.
Approximately "an hour or two hours later," he was brought to
the officers' office and asked what had occurred. Tr. at 398. He
was afraid to give the inmates' names because he thought there
would be "greater problems." Tr. at 399. He was then moved to the
next tier, "right next door." Id. Soon he heard a lot of
commotion at the end of that tier and saw an inmate with a gold
tooth talking to people on the other side of the tier. This
inmate then came over to him, asked him a question, and hit him
"in the head with the back of his hand." Tr. at 400. Under cross
examination, Arnold described this occurrence as a "slap" and not
a "punch". Tr. at 468. There were no correction officers in the
vicinity of that new tier when this third altercation occurred.
"About an hour or two hours, maybe three hours later," he was
taken to the jail's medical clinic in a wheelchair. Tr. at 401.
He was told by a correction officer to tell the doctor that he
"slipped on a bar of soap," otherwise he would have "more
problems." Tr. at 401. He did as he was told. Although he was
bleeding from his left eye, nose and mouth, he was eventually
returned to his new cell. Soon thereafter an inmate alerted an
officer that "[t]here's something wrong with him." Tr. at 402. He
next remembered being back in a medical clinic in the jail, with
IVs in his arms, and then being taken by ambulance to the
hospital. "Sometime later," he was returned to the jail, but
"[f]our or five days later" he was brought back to the hospital.
Tr. at 404-05.
Under cross examination (Tr. 411-95), Arnold testified that the
inmate trial took approximately five or ten minutes, see Tr. at
448; that the first beating lasted from ten to fifteen seconds,
and that the second beating lasted from 45 seconds to a minute.
See Tr. at 461-63. One of the attackers during the second
beating was "Crazy Steve." Tr. at 464.
Defense counsel sought to establish during cross examination
the date and times when the assaults occurred. Arnold
acknowledged that he was admitted Friday night, July 24th, at
approximately 9:18 p.m., the date and time on the jail's
record, see Exhibit B, p. 1; see also Tr. at 414, 433, and
that he went to bed that night without incident. See Tr. at
438. He believed that the assaults took place on the next day,
Saturday, July 25th, see Tr. at 442, 447, but he wasn't sure of
the date or the times because it was a "traumatic event," and he
didn't "know what was going on." Tr. at 465.
The facility's medical records contain a report of injury to
Arnold at 1400 (2:00 p.m.) on Sunday, July 26th that resulted in
bringing him to the jail's medical unit. See Exhibit 11, p. 1.
It was prepared and signed by correction officer Kenny, and
states: "[Inmate] apparently slipped in his cell injuring his
head. [Inmate] is not responsive to any questions." Id.; see
Tr. at 247. The report also states that no correction personnel
witnessed the injury. See Exhibit 11, p. 2. Kenny had no
recollection of the incident, but opined that Arnold must have
been conscious; otherwise medical personnel would have come to
his cell. See Tr. at 249-50.
The medical portion of this report, prepared by an emergency
medical technician, Candice Turner ("Turner"), states, in
abbreviated format: "[N]osebleed and contusion to [left] side of
forehead. No [loss of consciousness], pressure applied to nose,
bleeding controlled; ice applied to head." Exhibit 11, p. 1;
see Tr. at 731. Turner estimated that since the injury was
reported to have occurred at 2:00 p.m., she would have seen
Arnold "shortly after." Tr. at 732. She testified that she would
not consider someone who had been given an ice pack to have been
seriously injured, and that she would not have allowed Arnold to
have been returned to his cell if she believed his injuries were
severe. See id.
A further report of injury was prepared by officer Parisi the
next day, Monday, July 27th, reporting what he observed that
morning while making his rounds in the D Tier, where Arnold had
been relocated. It states in full:
While performing the 1100 count I came upon B4 [Tier]
D05 cell and instructed inmate Arnold, Steven to
stand for the [c]ount. After several orders to this
inmate to stand, the inmate located in the same cell
said, "he can't he is bleeding." With the tier locked
in I proceeded to D05, and noticed that inmate Arnold
was bleeding from the mouth, and breathing shallow.
Inmate Arnold would not respond to me. I instructed
Officer Michelsen, Scott # 909 to call medical and
notify Sgt. Mott, [m]edical personnel and Sgt. Mott
arrived a short time after this incident. I was
informed by the inmates that this incident happened
on the previous 8-4 tour, and on C-block.
Exhibit 13, p. 1 (emphasis added).
Parisi testified that Arnold did not respond to him "because
his medical condition was such that he couldn't respond." Tr. at
509. Attached to his report was an Inter-Departmental Memo from
Correction Sergeant Edward Mott ("Mott"), dated July 27th,
stating, inter alia, that Mott responded to the scene, observed
medical attendants placing Arnold into a wheelchair, and that
Arnold "was taken to the medical unit and then sent to [Nassau
County Medical Center] for evaluation and or treatment." Exhibit
13, p. 2.
Introduced into evidence was the logbook of the officers who
were the combined Tier C and D tier sitters from July 24th
through July 27th. See Exhibit 7; Tr. at 120. Reading from the
July 26th entries, Captain Dane confirmed that four officers were
to share the tier sitter duties that day on the 8 a.m. to 4 p.m.
shift, as follows: 8-9, Hill; 9-10, Feldon; 10-11, Kenny;
11-noon, Farrington; noon-1, Feldon; 1-2, split between Kenny and
Farrington; 2-4, Farrington. See Tr. at 122. These four
officers were also to handle the 15 minute perimeter patrols.
See Tr. 158-61.
Questions posed by plaintiff's counsel to Feldon raised the
specter that there may have been a shortage of coverage on July
26th because it was a Sunday, which would
have required an officer to escort inmates to church. See Tr.
at 168-70. Also, when officers went "out to a meal, [they were]
not available to do a patrol." Tr. at 170. Plaintiff's counsel
placed in evidence records showing that officers were out to
meals on July 26th from 12:15 through 2:15. See Exhibit 8; Tr.
at 170-73. They indicate that there may have been as many as
three of the officers out to meals from noon to 1:00, see Tr.
at 193-200, and that two officers may have been out to meals at
about two o'clock, the time of the injury listed on the jail's
report. As Feldon testified in this latter respect:
Q. 1340, what does that say?
A. CO Feldon to meals.
Q. Would that be you?
Q. 1345, what does that say?
A. No patrol officer meals.
Q. And I believe it says CO Farrington?
Q. So that is a second entry for the hour of 1300
that an officer is out to a meal.
Tr. at 173.
Since lunch for the inmates was from 11:00 to noon, it did not
matter whether there was a shortage of officers during that time
because the inmates would then be locked in their cells. See
Tr. at 230. However, Feldon could not recall if the inmates were
also locked in their cells on July 26th for the additional
two-hour period of time after noon when two or three of the
officers were out to meals, although he testified that "usually
they're locked in" at such times. See Tr. at 230. Feldon had no
recollection of Arnold or his beatings. See Tr. at 176, 243.
4. The Damages
The Nassau County Medical Center records establish that Arnold
was seen in the emergency room when he was brought to the
hospital on July 27th. See Exhibit 15. X-rays taken on that
date disclosed that he sustained fractures in four facial bones:
the zygomatic arch, orbital floor, left maxillary sinus and left
frontal zygomatic. See id.; Tr. at 1158. He was sent back to
the jail, apparently on the same day, and was brought back to the
hospital a week later for surgery. See Tr. at 1171. This
entailed repositioning the bones, drilling holes in them, and
inserting a special metal plate with several four-millimeter
screws to reconnect the bones to each other. See Tr. at 1165.
Arnold's medical expert, Dr. Gary Starkman ("Starkman"), a
neurologist, testified that as a result of the attack, Arnold's
trigeminal nerve was either compressed or severed because of the
fracture of the zygomatic bone. See Tr. at 1168. He explained
that the trigeminal nerve provides sensation to the face, part of
the mouth, and the muscles that are responsible for chewing.
See Tr. at 1166. Upon examining Arnold, Starkman determined
that he suffered a loss of sensation on the left side of his
face, inner portion of his cheek, lip and gum. See Tr. at
1174-75. Arnold testified that he experiences migraine headaches,
a constant irritation to the left side of his face, and numbness
above and below his left eye, on his left cheek and in the corner
of his lip. See Tr. at 1120. Starkman opined that this absence
of sensation is permanent. See Tr. at 1178.
Starkman also testified that Arnold suffers cognitive
impairments. See Tr. at 1178. As he explained: "Arnold has
certain cognitive deficits, certain impairments in his ability to
use his language, to comprehend spoken language, written
information, follow certain directions while reading these
directions, and certain deficits in attention, concentration and
memory." Tr. at 1176. He further testified that these cognitive
impairments "are causally related to the . . . injuries sustained
in 1992," Tr. at 1177, and are permanent:
In sum, Starkman explained:
Mr. Arnold sustained two types of deficits. One is
the deficit of his mental abilities, and the second
type of deficit is absence of sensation in his face,
impairment of his ability to chew normally, to
perceive the portion of his face, of his mouth.
Because of his cognitive impairments, it appears
that he will not be able to analyze relatively simple
situations, information, directions, that he would
have either to listen to or to read this information.
And the second type — the second part of his
injury, as far as the sensation in the face concerns
his ability to chew normally, the fact that he bites
his — the left side, the left portion of his mouth
often, and the discomfort he has because of the
drooling and losing food on that side of the mouth,
that would last also for as long as he lives, and
that would impair his normal part of his life.
Tr. at 1178.
Consistent with Starkman's medical assessments, Arnold
testified that he has "a problem remembering what I have to do .
. . a problem keeping sentences together." Tr. at 1123. He
further testified that he was an electrician for the Long Island
Railroad, which required him to remember a hundred or more
railroad substations and to understand the mechanics of
electrical rail wiring, and that he would no longer be able to do
this work. See Tr. at 1121-22.
The County's medical expert, Dr. Joel S. Delfiner, a fellow
neurologist, although expressing some moderate assessments as to
the permanency of Arnold's injuries, confirmed under
cross-examination that, other than the injury to the inside of
Arnold's cheek, he "ha[d] no doubt that the injuries, the
fracture injuries as well as the nerve-damage injuries to Mr.
Arnold's — the left side of Mr. Arnold's face, were caused by the
assault referred to in the medical records." Tr. at 1294-95. And
as to the cheek, he did not know, "one way or the other." Tr. at
The same standard applies to a Rule 50(a) motion for judgment
as a matter of law and a Rule 50(b) renewed motion for judgment
as a matter of law. See Raspente v. National R.R. Passenger
Corp., 111 F.3d 239, 241 n. 3 (2d Cir. 1997). A motion under
either section may be granted only if "the evidence, viewed in
the light most favorable to the opposing party, is insufficient
to permit a reasonable juror to find in [his] favor."
Galdieri-Ambrosini v. National Realty & Dev. Corp.,
136 F.3d 276, 289 (2d Cir. 1998); see Vermont Plastics, Inc. v. Brine,
Inc., 79 F.3d 272, 277 (2d Cir. 1996). This means that "there is
such a complete absence of evidence supporting the verdict that
the jury's finding could only have been the result of sheer
surmise and conjecture, or . . . the evidence is so overwhelming
that reasonable and fair-minded persons could only have reached
the opposite result." Lambert v. Genesee Hosp., 10 F.3d 46,
53-54 (2d Cir. 1993) (citation and quotation mark omitted); see
Galdieri-Ambrosini, 136 F.3d at 289. "[T]he court must give
deference to all credibility determinations and reasonable
inferences of the jury, and it may not itself weigh the
credibility of witnesses or consider the weight of the evidence."
Galdieri-Ambrosini, 136 F.3d at 289 (citations omitted).
A Rule 50(b) motion "`is limited to those grounds that were
specifically raised in the prior [Rule 50(a) motion].'" Id. at
286 (quoting McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997)
(quotation marks omitted)); see Fed.R.Civ.P. 50(b); Holmes v.
United States, 85 F.3d 956, 962 (2d Cir. 1996); Lambert, 10
F.3d at 53-54. Pursuant to this specificity requirement, the Rule
50(a) motion "must at least identify the specific element that
the defendant contends is insufficiently supported." Galdieri-Ambrosini,
136 F.3d at 286. The purpose of the specificity requirement is
"so that the responding party may seek to correct any overlooked
deficiencies in the proof." Id. (quoting FRCP 50
Advisory Committee Note (1991)).
Unlike a motion for judgment as a matter of law, there is no
preservation requirement for a motion for a new trial under FRCP
59(a). See Fed.R.Civ.P. 59(a). "`A motion for a new trial
ordinarily should not be granted unless the trial court is
convinced that the jury has reached a seriously erroneous result
or that the verdict is a miscarriage of justice.'" Atkins v. New
York City, 143 F.3d 100, 102 (2d Cir. 1998) (quoting Lightfoot
v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)
(citation and quotation marks omitted)); see Song v. Ives Labs.,
Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). "Unlike a [judgment as
a matter of law], a new trial may be granted even if there is
substantial evidence to support the jury's verdict." Song, 957
F.2d at 1047. In considering a motion for a new trial, a trial
court "`is free to weigh the evidence [itself] and need not view
it in the light most favorable to the verdict winner.'" Id.
(quoting Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.
It is well-settled that the State has a duty to provide inmates
with "reasonable protection against the foreseeable risk of
attacks by other prisoners." Blake v. State, 259 A.D.2d 878,
686 N.Y.S.2d 219, 220 (3d Dep't 1999) (collecting cases). This
duty naturally extends to all correctional facilities of the
State's municipalities and their correction officers. See, e.g.,
Caruso v. County of Suffolk, 234 A.D.2d 495, 495-96,
652 N.Y.S.2d 58, 58 (2d Dep't 1996) (Suffolk County jail); Kemp v.
Waldron, 115 A.D.2d 869, 869-70, 497 N.Y.S.2d 158, 158-59 (3d
Dep't 1985) (Schenectady County jail). Consistent with the duty,
liability can be predicated on a lack of "adequate supervision to
prevent that which was reasonably foreseeable." Colon v. State,
209 A.D.2d 842, 843, 620 N.Y.S.2d 1015, 1015 (3d Dep't 1994).
In respect to the three correction officers who were sued in
their individual capacities, the Court, after instructing the
jury that "correction officers have a duty to use reasonable care
to protect prisoners from foreseeable risk of harm, including
risk of attack by other prisoners," Tr. at 1004, explained the
concept of "foreseeability":
In regard to foreseeability, a person is only
responsible for the results of his or her conduct if
the risk of injury is reasonably foreseeable. This
would mean in considering the conduct of a correction
officer that he had or should have had knowledge of
an especially dangerous situation confronting the
prisoner. The exact occurrence or exact injury does
not have to be foreseeable, but injury as a result of
negligent conduct must not be merely possible but
Tr. at 1005.
The Court then instructed the jury as to proximate cause, see
Tr. at 1006, and concluded by telling the jury that "if you find
that Arnold has not proven by a preponderance of the evidence
that a reasonably prudent correction officer could foresee danger
of injury to Arnold, or that the correction officer acted
unreasonably in the light of what could be foreseen, or that the
conduct of the correction officer was a substantial factor in
bringing about Arnold's injuries, then your verdict shall be for
the correction officer on the state law negligence claim against
the officer." Id.
Arnold's theory of negligence against defendants John Jaronczyk
and Thomas Serroen was based upon his claim that they provided
him with an oversized uniform to identify him as a sex offender.
There was ample basis to reject this rather specious claim.
Arnold's apparent theory in respect to Feldon was his belief that
Feldon had also identified Arnold as a sex
offender by giving his attackers a newspaper article reporting
his arrest, and was otherwise lax in his supervision. It was well
within the jury's province to exonerate Feldon from personal
liability since there was no evidence disclosing the contents of
any such newspaper article, and no evidence of the nature of
Feldon's supervision other than Arnold's testimony that Feldon
was the correction officer who ultimately interceded.
In respect to the issue of the County's negligence, the Court
charged the jury in accordance with the Sheriff's nondelegable
statutory duty under the State Correction Law. See Kemp, 115
A.D.2d at 870, 497 N.Y.S.2d at 159 ("pursuant to Correction Law §
500-c, the Sheriff has a nondelegable duty to keep prisoners in
the county jails safe"*fn2):
The Sheriff acting on behalf of Nassau County has
the responsibility under New York State Correction
Law 500-b to safely keep every person lawfully
committed to his custody. . . . In that regard New
York Correction Law 500-b(7) . . . requires the
sheriff to do the following: [t]o exercise good
judgment and discretion and to take reasonable steps
to ensure that the assignment of persons to facility
housing units; fosters the safety, security and good
order of the jail; and affords appropriate
precautions for the personal safety and welfare of
persons in custody with particular attention to those
who are known to be vulnerable to assault or any
physical or mental abuse. The sheriff shall consider,
among other factors, the following in complying with
this law: [a] prisoner's prior history of mental
illness and/or prior history of sex offenses. This is
what the statute provides as the duty[.]
Arnold claims that Nassau County was negligent in
that it failed to provide him proper supervision or
protection as required by the statute as a pre-trial
detainee charged with a sex crime to safeguard his
safety from physical attacks by other prisoners.
In order for Arnold to establish this claim against
Nassau County he must prove by a preponderance of the
evidence that there was, indeed, a violation of New
York Correction Law 500-b(7), and that such violation
was a substantial factor in bringing about his
Tr. at 1007-08.
The Court also instructed the jury that it "may, but need not,"
Tr. at 1008, consider the State's Minimum Standards and
Regulations for Management of County Jails, in assessing whether
the statute had been violated:
In determining whether a violation of the statute
has occurred, you may consider that New York State
has promulgated regulations concerned with Minimum
Standards and Regulations for Management of County
Jails and Penitentiaries. In that regard, there is a
regulation . . . 9(F) NYCRR, Part 7003, [which]
provides in pertinent part that "active supervision
shall be maintained in all facility housing areas,
including multiple occupancy housing units when
prisoners are confined in such area but not secured
in their individual housing units."
Active Supervision is defined under [the]
regulations as the following: [t]he immediate
availability to prisoners of facility staff
responsible for the care and custody of such
prisoners which will include (1) uninterrupted
ability to communicate orally with and respond to
each prisoner unaided by any electronic or other
artificial amplifying device, (2) the conducting of
supervisory visits at 15-minute intervals, (3) the
ability of staff to immediately respond to emergency
situations, and (4) in any facility
housing area [in] which more than 20 inmates are
housed the continuous occupation of a security post
within such housing area.
Should you find that Nassau County has violated
these regulations that I just said, you may, but need
not, consider the violation as some evidence of
negligence. You may, therefore, consider this
together with all of the other evidence in this case
in determining whether Nassau County has violated its
duties under Section 500-b(7) of the New York
Tr. at 1008-09.