New York State Court of Claims

New York State Court of Claims

LaCOURT v. THE STATE OF NEW YORK, #2002-029-199, Claim No. 96339


Prisoner, assault by fellow inmate. Alleges State had notice of attack and failed to protect claimant. Court finds failure of proof on this point, claim dismissed.

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:
James H. Medcraf, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Mary B. Kavaney, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 25, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury arose from an assault upon claimant by a fellow inmate at Downstate Correctional Facility (hereinafter Downstate) on June 4, 1995 allegedly as a result of the State's negligence in failing to provide adequate supervision to prevent the attack. The trial was bifurcated and this decision deals only with the issue of liability.

The evidence at trial established that on June 4, 1995 at approximately 8:15 a.m. in Mess Hall 2 at Downstate Inmate Benjamin Serrano assaulted Inmate Correa, and then claimant, with a razor blade.

Correction Officer (hereinafter C.O.) Julia Muniz was called as a witness by claimant. C.O. Muniz testified that she has been employed as a correction officer with the State for 18 years and has worked at Downstate for the last 13 years. She stated that at the time of the incident (1) she was on duty in Mess Hall 2; (2) the mess hall was about half-full as the morning meal was done and the inmates were leaving the mess hall; (3) there were approximately 50 to 60 inmates and five C.O.s in the mess hall. The witness stated that inmates are not allowed to walk around during meals unless permission to do so has been given by a C.O.

C.O. Muniz stated that Serrano's table of six inmates was told to stand to exit the mess hall; that Serrano walked from his table to the table where Correa and claimant were sitting and assaulted Correa and then claimant. The witness drew a rough draft of the mess hall indicating the location of the tables, as well as showing where she was standing, and the tables where Serrano, Correa and LaCourt were sitting (see Exhibit 12). C.O. Muniz stated Correa and La Court were sitting at the table located directly in front of Serrano's table. She stated she saw Serrano drop his food try and make a "swipe motion"[1]
at Correa and then saw blood on Correa's face; she yelled "stop him" and she grabbed Correa and before other C.O.s came over to subdue Serrano he attacked LaCourt (see also Exhibits 3 and 7).
C.O. Muniz testified on cross-examination that Correa and LaCourt were sitting at the same table approximately a foot to a foot and a half apart. She estimated the interval between the attack on Correa and La Court at approximately a half second to a second. She further stated that prior to June 4, 1995 claimant did not have an enemy list.

Claimant, Peter LaCourt, testified that prior to June 4, 1995 he did not know either Serrano or Correa and that he had not previously had any problems with Serrano. Claimant also drew a rough sketch of Mess Hall 2 which he testified was an accurate rendering of the relevant persons' positions at the time of the assault (Exhibit 15). He stated that there are four rows of tables in the mess hall and each row consisted of five tables; that he was sitting at table two (from the left) of row one with his back to the room, facing the serving table; that Correa was not sitting at his table; that when he looked back he saw Correa standing at the table behind his; that Serrano was sitting at the first table on the left of row three.

Claimant stated that he was sitting at the table eating his breakfast at the time he was attacked; that he was cut three times, once each in the neck, face and left hand. LaCourt stated that he did not see the weapon Serrano used nor did he provoke Serrano in any way.

On cross-examination claimant stated he had only been at Downstate a few days at the time he was attacked and that he did not know Serrano and had never had any problems with him. He also testified that he did not have an enemy list. He further stated he did not witness the assault upon Correa.

The State, on its direct case, also called C.O. Muniz as a witness. Officer Muniz reviewed Exhibit 15, claimant's rough sketch of Mess Hall 2, and stated it was not a fair and accurate representation of the mess hall at the time of the assault. She further testified that the tables are emptied from the back of the room to the front by column, not by row, moving from right to left as one looks at the diagrams of the mess hall (see Exhibits 12 and 15).

C.O. Brewster, who was not called to testify, prepared an Inmate Misbehavior Report against Serrano (Exhibit 4) and also a memorandum to Sergeant (hereinafter Sgt.) Haass regarding this incident (Exhibit 14). In both documents the C.O. relates that he saw Serrano attack LaCourt with a razor blade and that he and Sgt. Haass both subdued Serrano.

Sgt. Haass, who also was not called to testify, prepared a Use of Force Report (Exhibit 2) wherein he states in describing the events leading up to the application of force that Serrano was in Mess Hall 2 in a "stand-off position with a razor blade in his hand. Other inmates were attempting to get to him (Serrano) with chairs" (Exhibit 2, Use of Force Report).

While the State must provide inmates reasonable protection against foreseeable risks of attack by other inmates (
Blake v State of New York, 259 AD2d 878; Sebastiano v State of New York, 112 AD2d 562), the State is not an insurer of the safety of inmates and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, supra).
In order to establish liability against the State, an inmate claimant must allege and prove 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, supra); (2) the State had notice that the assailant was dangerous and refused to take the proper precautions (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 the latitude to mediate and failed to act (see, Smith v State of new York, 284 AD2d 741; Huertas v State of New York, 84 AD2d 650).
The evidence adduced at trial established that claimant did not know the assailant prior to the attack nor was he aware that the assailant was going to attack him. Further, there was no evidence presented to establish that the State was aware claimant was a known risk. Thus, there is no liability to defendant under the
Sebastiano, supra branch of the case law. Likewise, there was no evidence that the State had notice the assailant was dangerous and refused to take proper precautions. Thus, there is no liability under the Littlejohn (supra) branch of the case law either.
Claimant asserts that the State had ample notice and the latitude to mediate and failed to act (see,
Smith, supra and Huertas, supra).
The evidence adduced at trial established that Serrano attacked Correa first and then claimant. Claimant did not testify as to the time lapse between the attack upon Correa and himself as he said he did not see the assault on Correa. The only testimony adduced on this point came from C.O. Muniz, who stated that the attack on LaCourt occurred approximately a half second to a second after the attach on Correa. The trial Court, in its capacity as trier of the facts, must view the witnesses and consider their statements in determining whether the witness is credible and the weight, if any, to be given to the evidence (see,
Johnson v State of New York, 265 AD2d 652; DeLuke v State, 169 AD2d 916). The Court finds C.O. Muniz to be a credible witness and accepts her testimony that Correa and LaCourt were at the same table and the assault upon LaCourt occurred virtually simultaneously with the assault upon Correa, or at least as part of the same incident.
Claimant failed to proffer any evidence that the attack upon the claimant was other than an unprovoked, fast, spontaneous act by Serrano. Judicial authority in this State has established that unremitting supervision of inmates is not required (
Colon v State of New York, 209 AD2d 842). Here, the evidence established that when the assault occurred, Sgt. Haass and C.O. Brewster immediately responded in an appropriate fashion and took appropriate remedial action in subduing Serrano (see Exhibits 2, 4, 6 and 14) and C.O. Muniz took appropriate immediate remedial action in removing Correa, the first victim, from the mess hall.
Based upon the record, the Court finds that claimant has failed to establish that the State did not provide him with reasonable protection against a foreseeable risk of harm. Accordingly, the claim is dismissed. The Chief Clerk is directed to enter judgment accordingly.

July 25, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are from the Court's trial notes or the audio tape transcript of the trial.