Arthur R. Montgomery, the Claimant herein, seeks recovery from the defendant
for damages he alleges were the result of the negligent supervision of inmates
by the Department of Correctional Services. Trial was held at the Sing Sing
Correctional Facility (hereafter Sing Sing) on July 27, 2001.
Claimant testified that on September 9, 1997, he was hit in the neck with a
knife or razor by an unknown assailant while on his way to the noon meal. He
could not identify any inmate as his assailant, and testified that he had no
known enemies. Claimant allegedly sustained an injury requiring 18 stitches, and
creating a permanent scar 7 to 8 inches long on the right side of his neck.
Sergeant J. McNamara, called as
Claimant's witness, testified credibly concerning his investigation of the
alleged assault. He indicated that he interviewed the Claimant, but could
discover no witnesses to the incident. Although the Claimant had asserted that
the assault occurred in the gallery while inmates were going in a large group to
the noon meal, no physical evidence of an assault could be found at the location
claimed. Additionally, when the Sergeant searched the Claimant's cell, he
discovered blood and an altered razor. Together with the lack of witnesses these
physical findings suggested to the witness that the injury was
Claimant argues the defendant was negligent in failing to safeguard claimant by
neglecting to post adequate, professionally trained security or personnel to
secure claimant from attack by oncoming inmates.
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, [
Blake v State of New York
, 259 AD2d 878 (3d Dept. 1999); Sebastiano v
State of New York
, 112 AD2d 562 (3d Dept. 1985)], the State is not the
insurer of the safety of inmates, and the fact that an assault occurs does not
give rise to the inference of negligence (Sebastiano v State of New York
). In order to establish liability on the State's part, an
inmate claimant must allege and prove one of the following grounds: (1) the
victim was a known risk and the State failed to provide reasonable protection
(See, Sebastiano v State of New York
.); (2) the
State had notice that the assailant was dangerous and refused to take the proper
, Littlejohn v State of New York
, 218 AD2d
833 (3d Dept. 1995); Wilson v State of New York
, 36 AD2d 559 (3d Dept.
1971)]; or (3) the State had notice and the opportunity to intervene to protect
the inmate victim and failed to act. Smith v State of New York
, 2001 WL
695067 (3d Dept. 2001). The mere fact that a correction officer is not present
at the precise time and place of an assault does not give rise to an inference
of negligence absent a showing that officials had notice of a foreseeable
dangerous situation. Colon v State of New York
, 209 AD2d 842 (3d Dept.
1994); Padgett v State of New York
, 163 AD2d 914 (4th Dept. 1990),
76 NY2d 711 (1990).
In this case, the court is simply not persuaded that an assault even occurred.
The Claimant's version of events is unsupported by any other testimony or real
evidence showing that an assault occurred at the place asserted. Indeed, the
only real evidence produced points to some sort of infliction of injury -
perhaps by the Claimant himself - in the Claimant's cell.
Additionally, even if Claimant had established that an assault occurred, he
offered no other factual premise by which the State could be found liable. He
never saw his alleged assailant. He had no known enemies or if he had, he had
not provided the facility with a so-called "enemies list" in order to establish
Accordingly, the Claimant has failed to establish by a preponderance of the
credible evidence first that an assault occurred, and next that the defendant
was negligent in failing to properly supervise inmates. Claim number 97011 is
dismissed in its entirety. Any motions made at trial, upon which the Court
reserved decision, are now hereby denied. The Chief Clerk is directed to enter