New York State Court of Claims

New York State Court of Claims

FONTENOT v. THE STATE OF NEW YORK, #2002-013-524, Claim No. 98022


Claimant's cause of action alleging the State's liability for an assault upon Claimant by a fellow inmate is dismissed, as it could not be 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: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was filed on March 23, 1998, by Claimant pro se, after a motion for permission to file a late claim was granted by Judge Donald J. Corbett, Jr. The filed claim alleges causes of action sounding in negligence, negligent and intentional infliction of emotional distress, assault and battery by the State in allowing another inmate at the Auburn Correctional Facility (Auburn) to intentionally inflict physical injuries upon the body of Claimant on July 2, 1997. Claimant appeared before me, pro se, after his release from incarceration, for the trial of this claim. The trial was bifurcated and this decision deals solely with the question of the State's liability.

Claimant testified that on July 2, 1997, he was working on his assigned job as a porter on D-4 Company at Auburn. His duties included cleaning up the company and giving out hot water to other inmates if it was needed to clean up. Claimant was housed in 5 Cell, while Inmate Lakram was housed in 45 Cell. Both cells were located in the same company, but a distance apart. Claimant testified that he knew of Inmate Lakram, but that he had had no prior problems with him. Claimant had asked Correction Officer Lupo if he could take a shower after he finished his cleaning responsibilities on the company. At that time, approximately 1:25 p.m., after Officer Lupo had opened the "shower gate," and about one or two minutes after Claimant had entered the shower, Inmate Lakram attacked Claimant. Claimant tried to defend himself, attempting to avoid injury. The attack went on for a while, as Claimant hollered and screamed to get attention.

Claimant was able to get out of the shower, and the attack ceased for a second, but Lakram again began to attack Claimant after he got out of the shower. Shortly thereafter, Correction Officer Lupo and another correction officer appeared and told Inmate Lakram to stop and leave the area. Lakram complied with the order. Claimant of course was not dressed and testified that there was a lot of blood, as he was cut on his neck, chest, stomach, hands and back. Claimant testified that the shower gate was open and that it had not been locked as it should have been, since it was the usual practice to lock an inmate inside the shower stall. Claimant suggests that it was the responsibility of the correction officer to lock the shower.

At the time of the attack, Correction Officer Lupo was in charge of running the company, but Claimant did not see him at the gate and believed, from reports that he had read, that Lupo was on the other side of the floor. Claimant testified that other than performing his duties as porter, he had no dealings with Correction Officer Lupo.

At no point in time prior to the incident in question did Claimant request protection or separation from any inmate, including Lakram, who could have been a threat to him. Claimant acknowledged that at no time during his incarceration did he know of any "enemies" or individuals with whom he had concerns for his personal safety.

Claimant admitted on cross-examination that Correction Officer Lupo directed Inmate Lakram to cease and desist within the one minute that this entire incident ensued. He also testified that he had received appropriate medical treatment following the incident.

The shower stall operated somewhat like a cell. It was the first cell closest to the end gate, and a correction officer had to unlock that gate to allow its use. Claimant's implication to the contrary, Correction Officer Laurence Cheney, an officer with 24 years of experience at Auburn, testified credibly that in his experience inmates never locked themselves in the shower cell. On the other hand, testimony also revealed that generally it was the inmates who had the responsibility to close or lock any other cell. It also appeared that the shower cell door operated like all cell doors and was capable of being locked by the inmate, although it appears that was rarely if ever done. Obviously, in the instant matter the shower stall gate was not locked and Inmate Lakram was able to gain access to the shower and attack Claimant.

Correction Officer Lupo, whose normal duty was as First Officer, was operating as the D-3 officer on the day in question and did not recollect Claimant asking him to take a shower, but that he had done so at the request of the D-4 officer that day. Lupo testified that he did permit several inmates, including Lakram, who had been scheduled for call-out (pre-scheduled appointments), to be released from their cells and move to their assignments, all apparently according to normal practice and procedure.

The primary factual dispute was the procedure to be utilized when an inmate uses the shower. Testimony made it clear that correction officers unlock the cells from the "lock box" at a central location on the company. However, Officer Lupo testified that as with all cells, the individual inmate is responsible for closing and locking the cell door, and that included the shower stall door. Officer Lupo testified that this was the standard practice at the facility, since the officers at the central lock box location should not leave their posts to lock cell doors, or the shower cell gate, along the entire company.

Each company has a gate at its end, and thus after an inmate is released from a cell on a call-out, he walks on the gallery to the end gate, which must then be released by an officer to allow the inmate egress from the company. Whether an inmate is escorted or unescorted on a call-out is dependent upon the inmate's individual status, to wit: whether he is in keeplock, protective custody, etc.

In the claim at bar, Inmate Lakram was under no restriction and was released from his cell to head to the end gate to be released on a call-out. It was at this time that Lakram inexplicably intruded into the shower stall and assaulted and injured Claimant. There was no warning, no threat, no prior confrontation, and the attack was totally unforeseeable. Claimant predicates liability on the Defendant's alleged duty to protect inmates from harm.

However, it is well-known and established law that the State of New York is not an insurer of inmate safety, but must provide reasonable protection against
foreseeable risks of attack by other inmates (see, e.g., Flaherty v State of New York, 296 NY 342; Colon v State of New York, 209 AD2d 842; Dizak v State of New York, 124 AD2d 329; Hann v State of New York, 137 Misc 2d 605). The fact that an assault occurred does not give rise to an inference of negligence (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711).
Generally, liability in a claim like the one at bar must be predicated upon 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, 112 AD2d 562); (2) the State had notice that the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures (see, Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) the State had ample notice and opportunity to intervene and failed to act (see, Huertas v State of New York, 84 AD2d 650).
Negligence cannot be presumed from the mere happening of an assault in a correctional facility (
see, Cruz v State of New York, 63 AD2d 862). The State has a duty to provide "inmates with reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, supra at 564, citing Wilson v State of New York, 36 AD2d 559). Where an assault takes place in a correctional facility, liability may be based either on Defendant's failure to protect Claimant from a known dangerous prisoner or to use adequate supervision to stop that which was foreseeable in an immediate or proximate sense, rather than in some generalized way (see, Spadaro v State of New York, 38 Misc 2d 489, affd 28 AD2d 604).
Claimant has failed to establish any of these acknowledged scenarios, and indeed from the proof before me, the attack here was completely unforeseeable. The proof in this claim fails the actual notice test of foreseeability, as well as the constructive notice test recently reviewed by the Court of Appeals in
Sanchez v State of New York (2002 WL 31619048 [Nov. 21, 2002]), and, while the Court ruled on a narrow holding on a limited question of law, my decision is wholly consistent with the reasoning of the Court of Appeals:
When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State.

While Claimant was the innocent victim of an unprovoked attack by a fellow inmate, and was earnest, forthright and credible in his presentation of the proof, no culpable conduct by the Defendant has been demonstrated. Accordingly, the claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon are hereby denied.


December 31, 2002
Rochester, New York

Judge of the Court of Claims