Claimant, an inmate proceeding
, seeks to recover damages for personal injuries he allegedly
sustained on October 1, 1995, while incarcerated at Fishkill Correctional
Facility (hereinafter "FCF"), when he was assaulted by another inmate in his
cell with a metal grate. Claimant commenced this action alleging negligence on
the part of the defendant for failure to prevent a foreseeable attack on
claimant by another inmate. The trial of this matter was held at FCF on May 24,
2000. Claimant was the sole witness who testified at trial. Defendant called no
Claimant testified that he knew his assailant as
He stated that prior to the incident, there was a verbal argument between Levy
and himself over a "job description" which Levy might have wanted but was
awarded to claimant instead. Claimant testified that during this exchange
Correction Officer Wolcott instructed them to "Come on guys, cut it out, break
At this point, claimant testified, he went back into his cube,
continued typing on his typewriter and "thought nothing more of it." He stated
that the officer walked away towards the officers'
Claimant testified that Levy walked back past the officers to the room in which
the grate was kept. In his testimony, claimant estimated that in a matter of
five minutes or less, Levy walked back from the room, passed the officers,
entered claimant's room and hit him with the metal grate which he had taken out
of the kitchen area by the "bubble." He stated than when correction officers
responded, they told them to break it up and Mr. Levy ran. Claimant testified he
was taken to the medical clinic, received stitches and then was taken to a
Special Housing Unit. Claimant submitted pictures, admitted as Exhibits 1,2 and
3, showing a laceration over his right eye which he describes as being about 3
½ inches long. Claimant, in his Claim, states that he received 22 stitches
as a result. In a FCF Memorandum attached to the Claim, Correction Officer
Wolcott and Sergeant Myers stated that, after a search of Housing Unit 12-1, the
grate was found in the kitchen. It also states that Levy was seen by the
officers running away with the grate in his hand.
Claimant described the metal grate as a 6" by 6" piece of metal having a metal
handle welded on it and weighing approximately 2-3 pounds. He testified that it
was used to "put your pots on top of it to keep them away from the heat."
Claimant stated that metal grates could be found around the housing area,
normally in the kitchen area or in an adjacent room which contained a toaster.
Claimant testified that the defendant is responsible for his injuries because of
their failure to prevent a foreseeable attack upon him. He testified that the
prison environment itself "dictates violence, most of the time, when inmates
Claimant testified that Levy and himself were in the same unit. On
cross-examination, he testified that there had been no previous fights or
problems between the two. Claimant testified the reason for the incident may
have been because "he wasn't very well liked in the unit because he was able to
advance in job descriptions that other inmates wanted, and, it was at this time
that he (Levy) voiced his opinion." Claimant did not directly communicate any
threat of violence or danger but stated that "it was known."
Claimant testified that, due to this incident, he suffers from headaches,
sleepless nights, and loss of memory and does not feel comfortable in a cube
anymore. He also showed the Court the scar over his right eyebrow.
Manifestly, "[p]rison life, and relations between the inmates themselves * * *
contain the ever present potential for violent confrontation * * * "(
Jones v. North Carolina Prisoners' Union,
433 US 119,132 ). The
State is not an insurer of inmates' safety, but it has "a duty to provide
inmates with reasonable protection against the foreseeable risk of attacks by
other prisoners * * * "(Blake v State of New York,
259 AD2d 878,879).
However, the mere fact that an assault occurs does not give rise to an inference
of negligence (Padgett v State of New York,
163 AD2d 914, lv denied 76
NY2d 711). Claimant must demonstrate a failure to use adequate supervision to
stop that which was foreseeable in an immediate or proximate sense, rather than
in some generalized way (Spadaro v State of New York,
38 Misc 2d 489,
28 AD2d 604).
The State is liable for negligence in connection with an assault of an inmate
by another inmate when:
(1) the victim is a known risk and the State failed to provide reasonable
(Sebastiano v State of New York,
112 AD2d 562); (2)
the State had notice that the assailant was particularly prone to perpetrating
such an assault and failed to take proper precautionary measures (Littlejohn
v State of New York,
218 AD2d 833); or (3) the State had ample notice and
opportunity to intervene and failed to do so (Schittino v State of New
262 AD2d 824).
Although the attack was unfortunate and claimant apparently suffered painful
injuries, the facts of this case do not establish a viable theory of liability
against defendant. There is no evidence that the claimant was at a known risk of
attack, despite his self-description of being disliked amongst his unit, such
that the State should have been aware of a need to provide him with protection.
Likewise, no evidence was presented that the State had notice that Levy was a
dangerous person, particularly prone to perpetrating such an assault, such that
it should have taken precautionary measures. Finally, no evidence was elicited
at trial to establish that the State had ample notice that claimant was under a
threat of violence from Levy or anyone else such that it was afforded an
opportunity to intervene.
By contrast, claimant testified there had been no previous problems or fights
between him and Levy and he never alerted anyone that he had received a threat
of violence. In fact, claimant testified that after the verbal argument he
returned to his cube and "didn't think anything more of it." This statement
itself indicates that the assault was unforeseeable, and, certainly, an assault
does not always follow an argument. Given the foregoing, defendant's motion to
dismiss the cause of action sounding in negligent supervision, upon which the
Court reserved decision at trial, is GRANTED.
To the extent that a claim for medical malpractice was asserted, claimant
failed to present any expert testimony to establish that defendant departed from
accepted standards of care in the medical community (
Tonetti v Peekskill Community Hosp.,
148 AD2d 525), and the Court
dismissed that portion of the Claim sounding in medical malpractice upon
defendant's motion at trial. Thus, the Clerk is directed to enter judgment
dismissing Claim No. 95539.