Jones v. State

Del Vecchio, J. P.

The State appeals from an order denying a motion to dismiss a claim for failure to state a cause of action.

Decedent’s injuries and death occurred in the course of efforts by the New York State Police to retake control of Attica State Correctional Facility iollowing thef prison uprising in which decedent was taken a hostage. The claim by his administratrix seeks to recover from the State for false imprisonment during the period of his detention and for the injuries and death resulting from the alleged negligence and willful and intentional assault on decedent committed by the State and its employees.

The claim alleges that the State Commissioner of Correction and the Superintendent at Attica were charged with the responsibility for controlling the prisoners at Attica; that on September 9, 1971 Herbert Jones, an employee at Attica, was willfully assaulted by the prisoners and taken hostage; that on September 13, 1971 a State Police officer under the command of Henry Williams, Captain of the New York State Police, while acting in the course of his employment for the purpose of forwarding the State’s interest, willfully and intentionally assaulted Jones by firing several shots at Jones, one or more of which struck him, thereby causing his death.

Unlike the minority, we find no allegation in the claim that an intentional tort was committed by the State in its governmental planning and decision making process by officers entrusted with that responsibility. “ We may construe the allegations of a complaint liberally and at times disregard the form of relief sought, if the essential elements of right to relief exist. We cannot create a cause of action which is not alleged. ’ ’ (Quintal v. Kellner, 264 N. Y. 32, 39.) During the argument of the motion to dismiss, counsel for claimant conceded that the State Police officer was not assigned to go into the prison intentionally to kill «Tones or any other employee.

Furthermore, it is well settled that in measuring the duty owed by the State to the public, the courts may not go behind the ordinary performance of planning functions by the officials tó whom those functions are entrusted (Weiss v. Fote, 7 N Y 2d 579, mot. for rearg. den. 8 N Y 2d 934). In Weiss the Court of Appeals pointed out the error of those who believe ‘‘ that the Court of Claims Act destroyed any and all facets of governmental immunity” (p. 586), and demonstrated that the Legislature simply “ intended to put an end to the immunity of the State which derived from its status as a sovereign.” No change was intended, however, when the immunity rests on the policy of maintaining the administration of municipal affairs in the hands of State or municipal executive officers as against the incursion of courts and juries. In these instances, which include the exercise of judgment in the course of governmental planning for the public safety, the inexpert opinion of a court or jury is not to be accepted over the expert opinion of the agency to which the subject has been entrusted. The decision by State officials charged with the responsibility for controlling prisoners at Attica to suppress the prison riot and retake control of the institution by the State Police for the purpose of restoring order logically falls within this class. “It is fundamental in the case of a sovereign, and it would require far more explicit language than the Legislature' has yet used to alter the rule, that there is no responsibility under substantive municipal law for the acts of a sovereign in war or the suppression of public disorders or for the creation and development of the necessary instrumentalities of force to implement these functions ” (Newiadony v. State of New York, 276 App. Div. 59, 62). The function involved at Attica prison being clearly sovereign in nature and completely foreign to any activity which could be carried on by a private person or corporation, the waiver of immunity by section 8 of the Court of Claims Act was ineffective since the State has never waived its immunity in this regard (Bellows v. State of New York, 37 A D 2d 342).

No basis appears in statute or case law for a different result by reason of the allegations of willful and intentional assault on decedent. In this case the governmental plan to suppress the riot and retake the prison involved deliberations of executive bodies which required the exercise of judgment of a quasi-judicial nature for which the State is not liable, notwithstanding such allegations (see Olson v. United States, 93 F. Supp. 150; Weiss v. Fote, supra, pp. 585, 586).

The order should be reversed and the claim dismissed.