New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2004-031-508, Claim No. 102960


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:
New York State Attorney General
BY: GORDON J. CUFFY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Jorge Rosario, filed claim number 102960 on August 23, 2000, alleging that the State of New York was negligent in failing to protect him from an assault by other inmates. I conducted a trial of this matter on September 25, 2003, at Auburn Correctional Facility ("Auburn").

Claimant testified that, on December 6, 1998, at approximately 10:20 p.m., while returning to his housing unit in Block B at Auburn, he was attacked from behind and cut across the face from his forehead to his nose. This laceration required 32 stitches, leaving a visible scar. Mr. Rosario claims that the State was negligent in its duty to protect inmates while under its care, custody and control because correction officers in the immediate area were not paying attention at the time of the incident.

Claimant testified that he had arrived at Auburn only months earlier from Eastern Correctional Facility and had no reason to believe that anyone would try to hurt him. The Claimant believes that he was attacked by members of a gang commonly known as "Bloods," and that they were attempting to rob him of his jewelry. Claimant admitted that, once attacked, he did not scream but rather picked up an ice-pick type shank, apparently dropped by one of his attackers, and fought back, at which point correction officers from the immediate area intervened. Claimant's Exhibit 1, the Claimant's sketch of the area where he was assaulted, shows five correction officers to have been in the immediate area at the time of the attack.

Correction Captain John Rourke testified on behalf of the Defendant. He stated that he has been with the Department of Correctional Services for 30 years, 17 of which involved overseeing inmates in the recreation yard. He stated that he has been the Day Captain for eight years, including the day on which the incident occurred. Captain Rourke identified the December 6, 1998 Unusual Incident Report which pertains to the Claimant's assault and which was accepted into evidence as Defendant's Exhibit C. The Unusual Incident Report indicates that four Correction Officers and two Sergeants intervened in the incident, after which the Claimant was transported to Auburn Memorial Hospital for treatment.

Defendant asserts that Claimant failed to introduce any evidence demonstrating that Defendant, or even Claimant, had any notice that the assault was in any way foreseeable. Defendant also pointed out that the incident was one of mutual combat, and that the employees of the facility responded immediately. Based upon these factors, Defendant argued that Claimant had failed to establish negligence on the part of the State and, at the close of proof, moved for dismissal of the action. I reserved decision on this motion.

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (
Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609).
In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (
Huertas v State of New York, 84 AD2d 650). Recently, in Sanchez v State of New York (99 NY2d 247), the Court of Appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.
In this instance, Claimant failed to demonstrate that Defendant had notice that a dangerous situation existed prior to the assault. Absent such notice, unremitting supervision was unnecessary (
see Hirsh v State of New York, 8 NY2d 125, 202 NYS2d 296, 168 NE2d 372; Padgett v State of New York, supra; Carlino v State of New York, 30 AD2d 987, 988; 294 NYS2d 30). Claimant did not know, and had no prior dealings with, his assailants. The assault was sudden and without warning. Even Claimant was taken completely by surprise. Further, the incident began with the cut to the Claimant's face and left no opportunity to intervene prior to injury. I find that the State's immediate response upon initiation of the incident demonstrates reasonable supervision. Claimant has failed to demonstrate that his assault was reasonably foreseeable or that Defendant was negligent in failing to protect him from the unexpected and unprovoked assault.
Accordingly, I now grant Defendant's motion and Claim No. 102960 is hereby
DISMISSED. Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

March 22, 2004
Rochester, New York

Judge of the Court of Claims