New York State Court of Claims

New York State Court of Claims

ELLEBY v. THE STATE OF NEW YORK, #2000-028-0016, Claim No. 99364


Claimant failed to prove that the State was negligent in allowing an inmate assault when steps taken to protect him after a threat were reasonable and correction officials had wide discretion in determining where to place guards.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Kevan Acton, Esq. Assistant Attoroney General
Third-party defendant's attorney:

Signature date:
December 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on October 6, 1998 at Greene Correctional Facility, when claimant was assaulted by two other inmates. At trial, the testimony reflected that on the day before this incident, claimant had reported to then-Sergeant (now Lt.) Jenkins that he had been approached and threatened by five or six other inmates. Claimant did not know these inmates and, in fact, had never seen them before. In response to his report, Sgt. Jenkins questioned claimant and immediately moved him from F dorm in the South Compound to L-2 dorm in the facility's North Compound. The next day claimant was assaulted by two unknown inmates while on his way to the facility school, which was in Building No. 38.

Claimant stated that there were no officers at the guard post in front of the building, where the assault occurred. He immediately went inside the building and found Officer Ed Nasher, who quickly apprehended the two individuals who had attacked claimant. Claimant was taken to the infirmary, where he received thirty stitches on his face. At trial, approximately two years after the incident, claimant exhibited a noticeable scar approximately two inches in length, running diagonally from the right earlobe across his jaw. There is every indication that this scar will be permanent.

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).
Prison administrators--charged with the responsibility "to secure their institutions against escape, to prevent the transfer or possession of contraband, and to protect the safety of inmates and prison employees"--are faced with the formidable task of managing the "daily activities of a large number of inmates who have been confined due to their criminal, and often violent conduct" (
Matter of Rivera v Smith, 63 NY2d 501, 512). 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 assault but failed to do so (Huertas v State of New York, 84 AD2d 650).
From the testimony presented at trial, the Court finds that the State did not know the identity of the individuals who threatened claimant on October 5, 1998 and thus was not in a position to provide particular protection to claimant from these individuals. The steps that were taken to remove him from the apparent danger offered by unknown inmates were reasonable and, in fact, may well have been sufficient, for there was no affirmative showing that the inmates who attached claimant on October 6
th were connected to those who had threatened him a day earlier.
In addition, the absence of guards from a particular post on the prison grounds is not, alone, evidence of negligent disregard for the safety of inmates. The decision regarding where and how many correction officers to place at various locations within a prison is a matter to be determined by correction officials, who are vested with broad discretion to accomplish their duty to maintain the necessary order and discipline (
Matter of Rivera v Smith, 63 NY2d 501).
While the Court has empathy for claimant in view of the significant injury he suffered, nevertheless, he has failed to establish by the weight of the credible evidence that the State violated its duty of care to him and thus should be held responsible for the incident. For this reason, the claim is dismissed.

Let judgment be entered accordingly.

December 4, 2000
Albany, New York

Judge of the Court of Claims