New York State Court of Claims

New York State Court of Claims

VICTORIA v. THE STATE OF NEW YORK, #2000-028-0002, Claim No. 95612


Prison inmate failed to prove that the State should have been aware of the violent tendencies of another inmate or that facility's practice of random pat-frisks of inmates entering recreation yard was unreasonable or a violation of governing rules and procedures.

Case Information

HASSON VICTORIA The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Hasson Victoria, pro se
Defendant's attorney:
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on September 9, 1996 at the Greene Correctional Facility, when claimant Hasson Victoria was attacked by another inmate, Kenneth Gonzalez, as he was standing in the recreation yard.

Claimant testified that the assault occurred the same day he arrived at the correctional facility. He was asked by correction officials if he had any known enemies at the facility and he replied that he had not seen anyone he recognized as an enemy. After settling in, he went to the recreation yard, where he noticed that some inmates, including claimant, were subjected to a pat-frisk while others were not. After he had been in the yard approximately one hour, he asked permission to go back to his housing area but was told that he could not. As he was standing near the weight lifting area, someone came from behind, grabbed his head, and cut the right side of his face. When he turned around, he saw his assailant but, at the time, his face was obscured by a hooded sweatshirt. Claimant then went to the correction officers' "bubble" and, from there, was taken to Albany Medical Center Hospital. The Court observed scar tissue on the right side of claimant's face which, in light of the amount of time that has passed since the injury, can be considered permanent. Claimant later recognized his assailant, Gonzalez, as someone he had "seen around" the County jail, but there had been no prior incident or animosity between these two individuals.

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see, Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see, Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault but failed to do so (Huertas v State of New York, 84 AD2d 650).
Here, claimant has presented no evidence to establish either that the State knew, or should have known, that there was animosity and the risk of violence between Gonzalez and himself, or at the least that Gonzalez had a reputation for violence that put any other inmate at risk Furthermore, there was no evidence to establish that the practice of conducting random, rather than universal, pat-frisks of inmates entering the recreation yard was unreasonable or in violation of facility rules. In fact, the State's witness, Sgt. Brant, testified that this was standard procedure and that it would not be possible to pat-frisk every inmate.

Because claimant has failed to establish that the State violated any duty of care toward him, his claim must is dismissed.

Let judgment be entered accordingly.

September 29, 2000
Albany, New York

Judge of the Court of Claims