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
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
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
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,
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
risks of attack by other inmates (see, e.g.,
Flaherty v State of New York
, 296 NY 342; Colon v State of New
, 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
, 163 AD2d 914, lv denied
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
, 36 AD2d 559); or (3) the State had ample notice and opportunity to
intervene and failed to act (see, Huertas v State of New
, 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
at 564, citing Wilson v State of New
, 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
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.