New York State Court of Claims

New York State Court of Claims

DELEON v. THE STATE OF NEW YORK, #2003-013-504, Claim No. 100061


Claimant's cause of action alleging the State's liability for an assault upon Claimant by a fellow inmate is dismissed, as it could not be established that the State had prior notice of a foreseeable risk to Claimant.

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:
Attorney General of the State of New YorkBY: REYNOLDS E. HAHN, ESQ.
Third-party defendant's attorney:

Signature date:
August 4, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this claim was bifurcated and this decision deals solely with the question of liability. The claim alleges that on July 29, 1997 an unknown assailant[s] came up behind the Claimant, drugged him and slashed his face repeatedly. At the time of this assault, Claimant was playing cards in the C-Block recreation yard at the Attica Correctional Facility (Attica). I have previously denied motions for summary judgment sought by both parties.

This claim alleges negligence by correction officers "in failing to take notice of the attack on the Claimant and to take action accordingly," adding that such negligence was evidenced by the fact that the perpetrator[s] was unknown and unapprehended.

Claimant seemingly concludes that, since the yard was theoretically fully staffed and supervised by correctional personnel when this assault occurred, and since the assault was seen by other inmates but not by correction officers, the correction officers were either negligently inattentive or not at their assigned posts, or that the level of supervision was insufficient, inadequate and/or ineffective.

This claim raises issues regarding assaults upon inmates that have been considered on numerous occasions, and the applicable law has been shaped by judicial opinion over many years. Traditionally, in past claims, the courts have applied generally recognized and accepted standards that governed an inmate's entitlement to recovery only if (1) he was known to be at risk and the Defendant failed to provide reasonable protection (
see, Sebastiano v State of New York, 112 AD2d 562); (2) Defendant had notice that the assailant was particularly prone to perpetrating such an assault and Defendant failed to provide reasonable protection (see, Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) Defendant had ample notice and opportunity to intervene in order to protect Claimant and failed to do so (see, Huertas v State of New York, 84 AD2d 650).
Initially I note that Claimant presents no evidence and makes no argument that he was known to be at risk, the first scenario noted above. Second, since the assailant was never identified, it cannot be said that the Defendant was on notice of a putative propensity for violence toward others. To the extent that Claimant vaguely makes arguments that all inmates are at risk, or seemingly implies that all inmates may be deemed threats to other inmates and that the State acknowledges that "all violence in a prison yard is reasonably foreseeable," to wit, because it does have guards in or around the Block yards, that argument is rejected. The State correctional facilities house convicted felons, and some, like Attica here, are categorized as maximum security facilities. The implication of Claimant's arguments would place the Defendant with the burden and the role of insuring the safety of all inmates, a standard which no court has reached and which has been specifically rejected (
Sanchez v State of New York, 99 NY2d 247, 253).[1]
Thus Claimant's putative reliance is on the third scenario above, that the Defendant had notice and an opportunity to intervene, but did not, and urges me to rely on the holding in
Huertas v State of New York (84 AD2d 650, supra). There is a distinct difference between this matter and Huertas. In Huertas, the assailant had an obvious bulge under his apron while walking through the cell block, while here the perpetrating inmate, to characterize Claimant's arguments, presumably acted furtively, successfully hiding his identity. There is nothing in the record before me to support Claimant's speculative notion that there was anything approximating the noticeable bulge under the apron of the named and identified assaulting inmate in Huertas, and no suspicious behavior that might have triggered a heightened awareness of a risk to this or any inmate. That being said, the Defendant could not have been on notice of suspicious activity here, and I would not be warranted in concluding as did the trial court in Huertas, as affirmed by the Third Department, that, "with adequate and proper supervision by correction officers reasonably attentive to their duties, the assailant would in all likelihood have been stopped and questioned and decedent's death could have been avoided" (id., at 651).
Claimant argues that 9 NYCRR 7003.3[a] was violated because the Defendant putatively did not have "active" supervision over the C-Block yard at the time of this incident. 9 NYCRR 7003.3 addresses the supervision of prisoners in facility housing areas, and the specific subdivision reads:

(a) Active supervision shall be maintained in all facility housing areas, including multiple occupancy housing units, when any prisoners are confined in such areas but not secured in their individual housing units.

There is nothing before me which demonstrates that the exercise yard is included within the regulatory definition of a "facility housing area" or, more pertinently, what constitutes acceptable levels of "active supervision." The term "active" is a subjective term and the existence, or lack, of such supervision is one that requires the testimony of a penology expert, the type of sworn opinion that led the Court of Appeals to deny summary judgment to the State in
Sanchez v State of New York, 99 NY2d 247, 253, supra). Claimant seems to rely upon his personal opinion, or at least the opinion of his counsel, of the degree of purported inattentiveness of correction officers as the linchpin of his theory of liability of negligent supervision. But here, I have nothing before me other than the lay argument and lay opinion that the level of supervision vitiated an undefined "active" standard. Liability cannot be ascribed to the Defendant with the quantum of proof before me.
Some have argued that the decision in
Sanchez v State of New York, supra, has clarified the law and applied an additional new standard, to wit, whether the Defendant knew or reasonably should have known that an inmate claimant was at risk of harm. My interpretation is somewhat more narrow.[2]
Sanchez was an inmate-on-inmate assault case where a claim of negligent supervision was dismissed on summary judgment, on the ground that the attack was unforeseeable as a matter of law, and the Court of Appeals merely concluded that the record raised a triable issue as to foreseeability. At least in that case the claimant provided an unrefuted affidavit of an expert penologist who opined that the State's supervision of Sanchez on the night of the assault violated generally accepted penological standards of care, and the Court of Appeals held that the State, without providing any evidence to refute such assertions, was not entitled to summary judgment dismissing the case. Here of course, after the submission of all the proof, there is no evidence from an expert penologist, and thus no expert opinion which the State might attempt to refute.
Sanchez majority observed it could not conclude as a matter of law that the injury was not reasonably foreseeable and that:
[T]his record by expert affidavit identifies a risk of assault... and the existence of such a risk is uncontroverted. . . .

. . . .

Here, there is uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack... and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand.

(Sanchez v State of New York, 99 NY2d 247, supra at 255.)

Even the dissent in
Sanchez recognized that perhaps the three traditional scenarios that have generally been relied upon concerning foreseeability, have been too narrowly defined and observed that:
[T]he list is incomplete; other types of proof would also raise a question of fact. For example, an inmate might establish foreseeability by offering proof that there were a number of prior attacks in a certain location in a facility, indicating an unreasonable risk of harm particular to that place, or by demonstrating that the authorities received threats or were aware – or should have been aware – of other indicia of unrest prior to a certain event or program which ultimately culminated in violence.

Sanchez v State of New York, 99 NY2d 247, supra, Graffeo, J., dissenting at 261-262.)
Even utilizing these broader scenarios, Claimant here has offered no proof outside the three traditionally described scenarios, the only criteria upon which Claimant attempted to rely.

[T]he State's duty to prisoners... does not render the State an insurer of inmate safety.... When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State.

Sanchez v State of New York, supra at 256.).

No evidence was presented that distinguishes this unfortunate assault from those present every day at any correctional facility.
There is no credible evidence that this assault was foreseeable, and thus no breach of any duty owed by the Defendant to the Claimant. Accordingly, the claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon, are now denied.


August 4, 2003
Rochester, New York
Judge of the Court of Claims

  1. [1]The trial of this matter preceded a significant decision by the Court of Appeals, and my decision here incorporates the recent ruling in Sanchez v State of New York (99 NY2d 247). I will address the applicability of Sanchez below.
  2. [2]The Fourth Department, in its only opportunity to review this newly articulated standard, has implied that the standards are now broader (Gangler v State of New York, 302 AD2d 964, 965).