Claimant, an inmate proceeding
, seeks damages for the alleged injuries he sustained during a
fight with another inmate on August 18, 1994 at Sing Sing Correctional Facility.
Claimant contends that on August 17, 1994, he was twice attacked by other
inmates and that defendant was negligent in its failure to place him in
Involuntary Protective Custody prior to August 18, 1994. Claimant alleges that,
due to defendant's negligence, he was injured in a fight on August 18, 1994.
This claim was heard in a unified trial.
Claimant testified that on August 17, 1994, at 3:20 p.m., he was assaulted by
inmate Restrepo and was subsequently placed in keeplock. According to claimant,
at 9:10 p.m., later that evening, he was released from keeplock and returned to
general population against his will. Claimant testified that he was afraid and
wanted to go back to his cell. He communicated his concerns to a correction
officer and was permitted to return to his cell.
Upon reaching his cell at 9:30 p.m., an unidentified assailant came from
behind with a razor and cut the back of claimant's head. Claimant received
stitches and was placed in keeplock.
The following morning, on August 18, 1994, claimant was released into the
keeplock recreation yard, where he was assaulted by inmate Restrepo. Claimant
maintains that this was the second incident, within two days, that he had had
with inmate Restrepo and that defendant was negligent in placing claimant in
keeplock rather than Involuntary Protective Custody after the first assault by
inmate Restrepo on August 17
Upon listening to claimant testify and observing his demeanor as he did so,
the Court finds that his testimony failed to establish that he was in fact
assaulted at 3:20 p.m. on August 17
th and specifically by inmate Restrepo. Notably, claimant failed to submit any
documentary evidence regarding this alleged assault; nor was there any evidence
that claimant informed defendant that he feared Restrepo after the alleged
attack. Claimant pled guilty to fighting with Restrepo on August 18th (Ex. A)
and did not offer any testimony explaining his plea or relating it to the
alleged assault by Restrepo on August 17th. Accordingly, the Court finds no
basis for defendant to have anticipated the August 18th incident with
It is well settled that the State is required to use reasonable care to
protect the inmates of its correctional facilities from the foreseeable risk of
, Flaherty v State of New York
, 296 NY 342; Dizak v State of
, 124 AD2d 329; Sebastiano v State of New York
, 112 AD2d
562). This includes the risk of attack by other prisoners (see
Littlejohn v State of New York
, 218 AD2d 833). However, "[t]he State is
not an insurer of inmate safety; its duty is to exercise reasonable care to
prevent foreseeable attacks by other inmates." (Padgett v State of New
, 163 AD2d 914). The mere fact that a correction officer may not have
been present when the assault of claimant occurred does not give rise to an
inference of negligence, absent a showing that prison officials had notice of a
foreseeable dangerous situation (see
, Leibach v State of New York
215 AD2d 978; Padgett v State of New York
). An unprovoked,
unexplained attack by a fellow inmate, with whom claimant had no prior contact,
does not give rise to an inference of negligence, absent a showing that prison
officials had notice of a foreseeably dangerous situation (see
Stanley v State of New York
, 239 AD2d 700; Roudette v State of New
, 224 AD2d 808; Leibach v State of New York
Padgett v State of New York
). Based upon the evidence
presented, the August 18th incident with Restrepo was not foreseeable.
Moreover, claimant pled guilty to fighting with Restrepo and, in the absence of
any evidence establishing that defendant had notice of a problem between
claimant and Restrepo, defendant cannot be held liable.
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING Claim No. 90111.