Claimant, Enrico Dalgetty, an inmate appearing
, alleges that he was injured by an unknown assailant, due to the
misconduct of the State of New York (hereinafter "State"), its officers, agents,
or employees, by failing to properly protect; to provide adequate number of
guards; and to supervise Claimant while he was lawfully in the custody of the
New York State Department of Correctional Services at the Elmira Correctional
Facility (hereinafter "Facility"). The trial of this Claim was held at the
Facility on May 29, 2002.
At trial Claimant testified that on April 8, 1996 at approximately 4:25 p.m.,
he was lawfully in the northwest handball court section of the Field House
talking to another inmate by the name of Roger Atkins. He, Atkins, and the
other inmates in the Field House were being called back to their cell block
units, and upon commencing his return to the unit he was cut on the right side
of his face, necessitating medical treatment. It was Claimant's position at
trial that if the yard and the Field House had better supervision during call
back to the housing units, his injury would have been deterred. Claimant
further testified that he later learned, upon information and belief, that his
assailant was one Tyshan Gray an inmate with whom Claimant had no prior problems
or contact. It was Claimant's position that the Field House area and the yard
should be better staffed at call back times and that the guards that were
present that day should have been on higher alert because in Claimant's position
"that's when all assaults occur".
Claimant admitted at trial that at a subsequent disciplinary hearing he was
sentenced to fifteen days in keeplock for not reporting this very injury at the
time it occurred, contrary to the rules and regulations of the
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,
562; Littlejohn v State of New York
, 218 AD2d 833, 834; Schittino v
State of New York
, 262 AD2d 824, 825, lv denied
94 NY2d 752). Here,
Claimant was initially unable to identify his attacker, although the attacker
was later tentatively identified. In either event, Claimant failed 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, in and of itself, does not establish a breach of any duty by the
State owing to Claimant. (Colon v State of New York
, 209 AD2d 842,
Based upon the foregoing, Claimant has not sustained his burden of proof and
has failed to establish a
case for negligent supervision.
Accordingly, the State's motion to dismiss made at the conclusion of trial is
now GRANTED and Claim No. 94527 is hereby DISMISSED.
All other motions on which the Court may have previously reserved or which were
not previously determined, are hereby denied.
ENTER JUDGMENT ACCORDINGLY.