Claimant, Jerome Pack, an inmate appearing
, alleges he was injured by reason of the negligence, deliberate
indifference, and misconduct of the State of New York (hereinafter "State"),
specifically the employees of the Department of Correctional Services, by
failing to properly supervise and protect the Claimant, while incarcerated at
the Elmira Correctional Facility (hereinafter "Facility"). The trial of this
action was held at the Elmira Correctional Facility on April 30,
Claimant testified that on October 30, 1995, he was working at the Field House
at the Facility and his duties that day were to pass out equipment, softballs,
basketballs, etc., for the inmates using the gym and the outdoor recreational
field at the Facility. Claimant stated that normally correction officers were
positioned at various areas of the Field House, however on this date the
officers were not at their proper posts in the Field House, but were outside in
the recreation yard. Claimant states that while he was in or near the
television area of the Field House he was attacked by an unknown assailant and
cut on the right side of his face with a sharp object resulting in a six inch
laceration running from his ear to his chin. Claimant states that he then
sought medical attention and went to the security bubble approximately thirty
feet away and informed the officer at the security bubble that he had been cut.
Claimant stated that he was then escorted from the bubble to the Facility
hospital where he got medical treatment consisting of thirty-seven stitches.
Claimant states that as a result of the injury he has a permanent scar on the
right side of his face approximately six inches long, but there is no other
permanent damage of any kind. Claimant further stated that he now stays
confined most of the time because of that attack and subsequent fear of
reprisal. In short, he alleges the most serious damage here is psychological in
nature. Claimant opined that if the officers had been at their proper positions
in the Field House and if the metal detectors were working that day then his
chances of getting cut by this unknown assailant would have been "slim to
In short, he alleges negligent and lackadaisical supervision of the inmates
resulting in this injury.
After a brief cross-examination, Claimant rested. The State immediately made a
motion to dismiss for failure to prove a prima facie case of negligent
supervision. The Court reserved on the motion.
The State called as their witness, Correction Officer Kenneth MacDonald.
Officer MacDonald testified that he has been a correction officer for
approximately fifteen years and currently works at the Facility. On the date of
the Claimant's injury, the witness was working at the Facility and testified
that the recreation yard and ball park were open. At approximately 4:20 p.m.
the inmates were being brought back into the Facility to be returned to their
various cell blocks in time for dinner. Officer MacDonald was informed by
another correction officer that an inmate had been cut. His attention was
directed to an area in the Field House where he saw the Claimant and several
others huddling together. The witness testified that the Claimant had a green
State issued towel wrapped around his neck and that his jacket was zipped up all
the way to his chin. Claimant was ordered by Officer MacDonald to unzip his
coat and remove the State towel at which time the witness observed a laceration
to the right side of Claimant's face. Claimant was immediately escorted to the
Facility hospital, but Officer MacDonald stated that the witness never
voluntarily came up to him or any other correction officer to report the
As a result a misbehavior report for violation of Rule 118.23, failure to
report an injury, was filed against Claimant. A review of that misbehavior
report (State's Exhibit A), further supports Officer MacDonald's testimony in
its content and description of this incident. Moreover, a review of said
exhibit establishes that Claimant herein pled guilty to said violation and
admitted that he did not follow the rules relating to reporting of an injury and
in fact tried to hide the same. As a result Claimant was sentenced to four days
of keep lock in the Special Housing Unit from October 30, 1995 to November 2,
On cross-examination of Officer MacDonald by the Claimant, Officer MacDonald
stated unequivocally that the guards were in the proper positions and there was
a guard manning the control booth or bubble in the Field House which was
approximately 75 yards from the area where Claimant testified he was injured.
Officer MacDonald further clarified that officers are assigned various security
positions in the Field House when the yard is closed, but when the yard is open
most of the officers are in the outside yard pursuant to Prison procedure,
supervising the inmates' outdoor activities.
With respect to Claimant's negligence cause of action, it is well-settled that
the State is not the insurer of the safety of inmates, although it must provide
reasonable protection against foreseeable risks of attack by other inmates.
Sebastiano v State of New York
, 112 AD2d 562, 564). That having been
said, the mere occurrence of an assault does not establish negligence.
(Colon v State of New York
, 209 AD2d 842, 843). Rather, the State will
only be liable for an inmate on inmate assault in the event of one of the
following situations: (1) the victim is a known risk and the State failed to
provide reasonable protection; (2) the State has notice that the assailant was
particularly prone to perpetuating such an assault and failed to take proper
precautionary measures; or (3) the State had ample notice and opportunity to
intervene and failed to do so. (Sebastiano v State of New York, supra,
112 AD2d 562; Littlejohn v State of New York
, 218 AD2d 833; Schittino
v State of New York
, 262 AD2d 824, lv denied
94 NY2d 752). Here,
Claimant was unable to identify his attacker and thus was unable to establish
his assailant had any known violent tendencies of which the State was aware.
Also, Claimant offered no evidence that he was a known risk himself.
Additionally, Claimant offered no evidence from which this Court could conclude
the State had notice, let alone ample notice, of his assault but failed to
intercede. Unremitting supervision is unnecessary and, as such, absent any
evidence of improper supervision, none of which was presented here, an assault
upon an inmate by an unknown assailant does not establish a breach of any duty
by the State owing to Claimant. (Colon v State of New York
, 209 AD2d, at 844).
In weighing the testimony, the Court finds the testimony of Officer MacDonald
to be most credible. Moreover, it appears from State's Exhibit A that the
Claimant herein attempted to deceive correction officers and hide his injury in
violation of Facility rules. As such, it appears to the Court that although
Claimant was attacked by an unknown assailant, it was not a result of any lack
of supervision on the part of the correction officers or the Facility.
Furthermore, Claimant's own attempts to hide the injury from the correction
officers leads this Court to believe that there may be more to this incident
than the Claimant has been willing to share to date.
Accordingly, for the reasons outlined above, the Court finds from the evidence
and testimony offered at trial, that Claimant failed to establish, by a
preponderance of the evidence, a case of negligence against the State for his
assault of October 30, 1995. Consequently, the State's motion for dismissal
renewed at the end of Claimant's proof, is hereby granted and Claim No. 93183 is
All other motions on which the Court may have previously reserved or which were
not previously determined, are hereby denied.