This is a claim to recover damages for personal injuries allegedly sustained
when Claimant was attacked by a fellow inmate at Attica Correctional Facility
(Attica) on July 19, 1997. At the beginning of trial, I reserved decision on the
Defendant's motion to dismiss the claim on jurisdictional and procedural grounds
as set forth in the third affirmative defense of its answer.
Claimant alleges that the State was negligent in failing to provide an escort
for inmates leaving the yard after recreation, and that this negligence
permitted an unknown assailant to attack Claimant on the back stairs as he was
returning to his cell block. As a result of this attack, Claimant sustained an
eight-inch half-moon shaped scar running from his right cheek bone to the back
of his right ear.
Claimant had been transferred to Attica approximately two weeks before this
incident. He testified that he should not have been transferred to Attica
because he had less than five years to serve on his sentence, and that it was
his understanding that inmates serving less than five years were not to be sent
to maximum security facilities, such as Attica.
On July 19, 1997, Claimant was a member of Company 53, which was housed in
Building Number 32, known as Cell Block "E." In order to gain access to the
yard for recreation, Claimant had to walk on the second floor, down the hall of
Company 53, through the lobby area, down the hall housing Company 52, and down
the staircase located at the end of this wing to reach the yard.
Toward the end of the recreation period, Claimant testified that the second
floor inmates were called to line up by the back stairs which led to the second
floor. According to Claimant's testimony, the second floor inmates were called
in before the first floor inmates. As Claimant was proceeding up the stairs to
the second floor, he testified that someone grabbed him from behind and slashed
his face. Subsequently, other inmates began to punch him. None of the inmates
were identified to Attica authorities or to the Court.
Claimant testified that he had had no prior contact with his assailant. He
further testified that he learned sometime after the incident that his
assailant, a first floor resident of Cell Block "E", had played basketball on
the team opposing Claimant during recreation.
After the assault, Claimant testified that his assailant ran down the second
floor hall housing Company 52, through the lobby, and down another set of stairs
to the first floor where the assailant was housed. Claimant followed the
assailant to the lobby area where he stopped to ask the correction officer on
duty for medical attention. According to his testimony, Claimant waited for
about twenty minutes for a supervisor to escort him to the Attica infirmary
where steri-strips were applied to his face (
Ambulatory Health Record, Exhibit 1).
Claimant refused voluntary protective custody status. From the infirmary, he
was escorted back to his cell and put in keeplock and involuntary protective
Unusual Incident Report, Exhibit C).
At the conclusion of his testimony, Claimant rested. The State renewed its
motion to dismiss on the grounds set forth in its third affirmative defense and
on the additional ground that Claimant had failed to make a prima facie showing
of negligence. I reserved decision on the State's motions.
For its first witness, the State called Correction Officer (CO) David Hodan, a
sixteen-year veteran at Attica, who was assigned to Cell Block "E" at the time
of the assault. CO Hodan testified that Cell Block "E" was a "semi-honorary"
block where most of the inmates enjoyed more benefits and privileges than other
inmates. According to CO Hodan, Cell Block "E" had very few incidents of
Correction Officer Hodan described Cell Block "E" as consisting of two floors,
each having three wings which ran off a central lobby area. Each of the three
wings housed a company of inmates. There was a raised wooden platform in the
lobby area (
Cell Block "E" Layout, Exhibit A). From the platform, a
correction officer would be able to see down all three of the wings which housed
The inmates from the second floor would access the yard for recreation one
company at a time. Company 52, which was housed on the wing located adjacent to
the back staircase, was the first company to be let out. While this company was
being let out, the other two companies on the second floor, Companies 53 and 54,
were secured. Company 53 was then let out to the yard while Company 54 was
Two pages from the log book for Cell Block "E" for July 19, 1997 were entered
as Exhibit B. CO Hodan testified that the log book indicated that he and CO
Miller were working the 9:00 to 5:00 shift in the cell block on that date.
According to him, a total of four correction officers were assigned to the yard
and to the second floor at the time of the assault. CO Miller was assigned to
the yard during recreation, and three correction officers were assigned to the
lobby area in the center of the second floor of Cell Block "E".
Correction Officer Hodan testified that for safety reasons no officer was ever
stationed in 52 wing while inmates were returning from recreation. After the
last inmate started up the stairs to the second floor, the yard officer would
then follow at a distance, securing the entrance to wing 52 once the inmates had
exited the stairway. According to CO Hodan's testimony, in the event that a
first floor inmate followed the second floor inmates up the back staircase after
recreation, the first floor inmate would have to proceed down the wing housing
52 company, pass the officers stationed in the lobby area, and exit down the
stairs located at the far corner of the lobby area.
On cross-examination, CO Hodan testified that when inmates returned from
recreation no officers were stationed on the staircase or between the yard and
the raised lobby area.
At the conclusion of CO Hodan's testimony, the State called Sergeant Dennis
Wright. Sergeant Wright investigated the assault and discovered blood near Cell
13 of Company 52, which continued down to the lobby area. The location of the
blood led him to conclude that the incident occurred in this area and not on the
stairway. No weapon was ever recovered.
According to the Unusual Incident Report (Exhibit C), Sergeant Wright
questioned Claimant, who stated that he did not know who had slashed him because
his assailant had grabbed him from behind, and because there were numerous
inmates in the area at the time.
Sergeant Wright testified that it was too dangerous to position an officer on
the stairwell while inmates were in transit. He further testified that an
officer stationed on the raised platform in the lobby area could see down
Company 52 to the area of Cell 13, and that the yard officer could see up the
stairwell. He acknowledged, however, that there was an area in the stairwell
which no officer could see. Sergeant Wright was not aware of any other incident
in Cell Block "E" involving an inmate in transit to or from the yard.
The law is well-settled with respect to an assault by one inmate on another in
a correctional facility. The State is required to use reasonable care to
protect inmates from foreseeable risk of harm (
Flaherty v State of New York
, 296 NY 342), including the foreseeable risk
of an attack by another inmate (Dizak v State of New York
, 124 AD2d 329).
The State is not, however, an insurer of the safety of inmates (Auger v State
of New York
, 263 AD2d 929; Padgett v State of New York
, 163 AD2d 914,
76 NY2d 711; Casella v State of New York
AD2d 495), and negligence will not be inferred from the mere happening of an
assault (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
In order to establish liability against the State, one of the following grounds
(Smith v State of New York
, 284 AD2d 741, at
The evidence adduced at trial failed to establish that Claimant had any prior
contact with the assailant or that Claimant was aware that the assailant was
going to attack him. In addition, the evidence failed to establish that the
State was aware that Claimant was known to be at risk or that the assailant was
dangerous and the Defendant neglected to take proper precautions. Finally, no
evidence was adduced to establish that the State had any notice; thus it had no
opportunity or reason to protect the Claimant. Upon the evidence submitted, I
can only conclude that the attack was sudden and unexpected, and the State had
neither notice nor an opportunity to intervene to protect Claimant.
Claimant alleges that the State failed to protect him by failing to position an
officer on the stairway where he alleges the assault took place. According to
the physical evidence, the assault occurred near Cell 13 at 52 Company, where
blood was first located. Claimant attempted to explain this by testifying that
he did not start to bleed until after he had been punched by other inmates,
subsequent to the slashing of his face. I need not decide, however, where the
assault occurred, because there is no evidence that the State had prior notice
of the need to place an officer in the stairway. In fact, according to the
uncontroverted testimony of Sergeant Wright, there had been no prior incidence
of an inmate-on-inmate assault in the stairway, and it would have been dangerous
to position an officer on the stairway while inmates were in transit. Absent a
showing that prison officials had notice of an especially dangerous situation,
the mere fact that a correction officer was not present in the stairway or in
the hall leading to the lobby at the time of the assault is insufficient to
support a finding that the State failed to exercise reasonable care (
Padgett v State of New York
, 163 AD2d 914, lv denied
NY2d 711, supra
Based upon the record, I find
that Claimant has failed to establish that the State did not provide him with
reasonable protection against a foreseeable risk of harm. Accordingly, the
claim must be and hereby is dismissed. It is therefore unnecessary for me to
address the State's dismissal motions upon which I reserved decision. All
motions not heretofore decided are now denied.
BE ENTERED ACCORDINGLY.