New York State Court of Claims

New York State Court of Claims

DENNIS v. THE STATE OF NEW YORK, #2002-013-522, Claim No. 96996


The cause of action alleging liability for an assault upon Claimant by a fellow inmate is dismissed where it could not established that the State had prior notice of a foreseeable risk to Claimant.

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:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 (
see, 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 custody (
see, 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 inmate-on-inmate violence.

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 (
see, 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.
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 secured.

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, 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 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 895).
In order to establish liability against the State, one of the following grounds must be

(1) the victim was known to be at risk and the State nonetheless failed to take reasonable steps to protect him or her (see, Stanley v State of New York, 239 AD2d 700, 701; Sebastiano v State of New York, 112 AD2d 562, 564), (2) the assailant was known to be dangerous but the State failed to protect other inmates from him or her (see, Auger v State of New York, supra, at 931; Casella v State of New York,121 AD2d 495, 496), or (3) the State had both notice and the opportunity to intervene for the purpose of protecting the inmate victim but failed to do so (see, Schittino v State of New York, 262 AD2d 824, 825, lv denied 94 NY2d 752).

(Smith v State of New York, 284 AD2d 741, at 742.)
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 76 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.

November 18, 2002
Rochester, New York

Judge of the Court of Claims