New York State Court of Claims

New York State Court of Claims

PACK v. THE STATE OF NEW YORK, #2002-019-005, Claim No. 93183


Claimant, a pro se inmate, brought a claim for negligent supervision for the injuries he received as a result of an attack by an unknown inmate. Claim dismissed for failure to prove a case of negligence against the State for the assault.

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:
BY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Jerome Pack, an inmate appearing
pro se, 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, 2002.

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 none".[1]
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 injury.

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, 1995.

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, supra, 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 hereby DISMISSED.

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


May 15, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.