Edward Kelly, the Claimant herein, alleges in Claim Number 104712 that
Defendant's agents failed to protect him from an assault by fellow inmates while
he was incarcerated at Green Haven Correctional Facility (hereafter Green
Haven). Trial of the matter was held at Sing Sing Correctional Facility on
August 27, 2004.
Claimant testified that on February 21, 2000 he was "violently attacked in the
back of the mess hall at Green Haven"
because of inadequate security measures. He indicated that he was at his job
assignment as a mess hall worker when he went to the back to retrieve something,
and was attacked by several inmates who "cut and stabbed" him from "the right
lip to the back of [his]
neck under [his] chin across [his] throat to
[his] left ear, on the back of [his] neck, and on [his] left shoulder." No
officers were posted in the back, although there was a camera mounted which an
officer was supposed to monitor at all times. After Claimant was attacked, he
said he walked out of the mess hall passing another unmanned officer's post. He
noted that he needed to leave the mess hall itself to get an officer's attention
to obtain medical treatment, but that then the attention received was
Reading from "the officer's rule book," Claimant testified that "an employee
shall report to his assigned post in a timely manner and shall not leave his
assigned post or duties unless prior authorization from his supervisor" is
received. He said that if a need to leave the post arises, the employee is
supposed to be replaced by another officer.
After the assault, he was taken to St. Francis Hospital where he received
It was Claimant's contention that had officers been at their assigned posts,
his injuries would not have "been so severe." "In the jail", Claimant said,
"hearing keys is like hearing a police siren in the streets." The sound of the
keys means that an officer is near, and that assaultive or other criminal
behavior should cease.
Claimant said that as a matter of course, inmates are searched as they leave
the mess hall, but are not searched as they enter. He said that this indicates
that the facility's concern is with what inmates may leave the mess hall with -
i.e.: potential weapons or food - as opposed to inmate safety while in the mess
No other witnesses testified on Claimant's direct case, nor was any real
At the close of Claimant's case, Defendant moved to dismiss the Claim based
upon an alleged failure to adequately provide notice of the nature of the Claim
to Defendant in the Notice of Intention served on April 17, 2000, pursuant to
Court of Claims Act §11, rendering the Notice of Intention a nullity that
did not serve to toll the statute of limitations for service and filing of the
actual claim. [
Exhibit A]. The Claim was served upon the Attorney General on August
20, 2001. If the Notice of Intention was inadequate, then the claim was
untimely, since it was served and filed more than ninety (90) days after its
accrual date of February 21, 2000. Court of Claims Act §10(3). In its
Answer, the Defendant stated as a defense that although it had received the
Notice of Intention, it "was legally insufficient to provide notice pursuant to
Court of Claims Act §11. The notice of intention thus, is a nullity."
Court of Claims Act §11 (b) provides in pertinent part that a "notice of
intention to file a claim
set forth . . . the time when and place where such claim arose,
[and] the nature of same . . . (emphasis added)
." An additional
requirement to ". . . state the post office address of each claimant therein,
and the name, post office address and telephone number of the attorney for each
claimant" is set forth at 22 NYCRR §206.6(a).
The Notice of Intention served upon the Attorney General herein by certified
mail, return receipt requested as required, describes the "nature of the claim"
as follows: "I the plaintiff received life threatening wounds in . . . [Green
Haven] and I am seeking compensation due to the lack of safety measure taking by
New York State as well as the correctional facility to insure the safety of
prisoners." [Exhibit A]. It is dated March 7, 2000, contains Claimant's post
office address and is verified.
Measured against the statutory and regulatory requirements, the Notice of
Intention served in this case is clearly legally insufficient. Although it was
timely and properly served, and could arguably pass muster despite the lack of
description as to where the claim arose in that it is referred to as occurring
at Green Haven, it does not contain the date of the assault: perhaps the most
important aspect of giving the State sufficient notice and tolling the statute
of limitations by this mechanism.
Accordingly, the Claim must be dismissed on procedural grounds alone since the
Notice of Intention served herein is inadequate, and did not serve to toll the
ninety (90) day statute of limitations for service and filing of a claim.
The Claim is also dismissed on substantive grounds, in that Claimant did not
establish by a preponderance of the evidence that the State should be held
liable for a failure to protect him from the subject assault by fellow
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates, [
Blake v State of New York
, 259 AD2d 878 (3d Dept 1999); Sebastiano v
State of New York
, 112 AD2d 562 (3d Dept 1985)], the State is not the
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 on the State's part, 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 (3d Dept 1995);
Wilson v State of New York
, 36 AD2d 559 (3d Dept 1971)]; or (3) the State
had notice and the opportunity to intervene to protect the inmate victim and
failed to act. Smith v State of New York
, 284 AD2d 741, 728 NYS2d 530 (3d
Dept 2001). More broadly, in order to establish liability on the State's part,
an inmate claimant must allege and prove that the State knew or should have
known that there was a risk of harm to the Claimant that was reasonably
foreseeable and inadequately addressed. Sanchez v State of New York
NY2d 247, 253 (2002); See also Flaherty v State of New York
NY 342, 347 (1947).
The mere fact that a correction officer is not present at the precise time and
place of an assault does not give rise to an inference of negligence absent a
showing that officials had notice of a foreseeable dangerous situation.
Colon v State of New York
, 209 AD2d 842 (3d Dept 1994); Padgett v
State of New York
, 163 AD2d 914 (4th Dept 1990), lv denied,
NY2d 711 (1990).
". . . [U]nremitting supervision . . ." is not required.
Colon v State of New York
Additionally, the court must consider whether there was information which would
trigger any heightened awareness of a risk to this inmate - any "suspicious"
behavior such as an individual leaving an assigned work post, or stuffing
magazines in his shirt to avoid injury - to alert correction personnel of a
specific danger brewing.
See e.g. Huertas v State of New York
, 84 AD2d 650 (3d Dept
In this case, there has been no showing that the Claimant's assault was
reasonably foreseeable and inadequately addressed under the circumstances.
Claimant was not known to be at risk from his assailant or assailants, nor were
his attackers known for violent propensities. Indeed, Claimant did not present
evidence as to who assaulted him, or medical records substantiating the fact of
the assault. There was no prior notice of any antagonism between Claimant and
his assailant or assailants, or any other evidence of motive.
No record was made to establish standards for how correction officers should be
required to supervise the movement of inmates, or whether the presence or
absence of an officer at a specific location is against penological standards of
care. Claimant read from a document he described as the "officer's rule book,"
but did not authenticate same or offer it in evidence.
More generally, the inherent risk of violent activity in a correctional
facility housing dangerous individuals does not mandate imposition of liability
for inmate-on-inmate assaults that are not reasonably foreseeable. When the
assault occurred, it was dealt with in a comprehensive and appropriate fashion
according to Claimant's testimony, and immediate medical care was given.
While the Court considers Claimant to have presented as a credible witness, who
appears to have been the victim of an unprovoked assault, he has not sustained
his burden of establishing that the State had actual or constructive notice of
the harm that befell him by a preponderance of the credible evidence.
Claim Number 104712 is hereby dismissed in its entirety on both procedural and
Let Judgment be entered accordingly.