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
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
, 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
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
); (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
, 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
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
) branch of the case law
Claimant asserts that the State had ample notice and the latitude to mediate
and failed to act (see,
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
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
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
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.