New York State Court of Claims

New York State Court of Claims

ACKERMAN v. THE STATE OF NEW YORK, #2005-010-008, Claim No. 101750


Inmate's claim for injuries allegedly sustained after being assaulted by unknown inmates was dismissed. Claimant failed to meet his burden of proof.

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 24, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he allegedly sustained on October 14, 1998 while he was incarcerated at Sing Sing Correctional Facility (Sing Sing). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on October 14, 1998, he was assaulted by unknown inmates while he was walking downstairs to his work assignment in the Jewish Chapel area. The stairs leading to the chapel were reached by entering an auditorium which had a correction officer posted at the entrance. Another correction officer made rounds through the entire area.
Claimant testified that, while on the stairs, he was shoved and this caused him to feel dizzy and to fall. He further testified that he had been threatened prior to the assault, but he ignored the threats.
After the incident,
claimant was transported to the hospital. At that time, he refused protective custody because he did not feel that his life was in jeopardy (Ex. E). When asked at trial whether he had advised correction officers that he had slipped and fallen, claimant responded "he did not know what he said."[1] When questioned further, claimant admitted that he never said that he had been assaulted when he spoke to Correction Officer Daye.
Lieutenant Michael Daye[2]
testified that, on October 14, 1998, he was the sergeant at Sing Sing responsible for the area in the vicinity of the chapel. He explained that two correction officers were routinely assigned to the area. One was stationed at the desk of the auditorium to monitor access and another officer conducted random rounds.
On October 14, 1998, Daye responded to the scene of the incident and made inquiries as to what had happened. When initially questioned by Daye on October 14, 1998,
claimant related that he was walking downstairs, became dizzy and fell. Daye inspected the area and did not observe any blood or other fluid. Daye then proceeded to the hospital and again asked claimant what had happened. Claimant gave the same account and said that he had not been assaulted. He seemed coherent and signed the protective custody refusal. When claimant returned from the hospital one week later, Daye again interviewed claimant, who again said that he had not been assaulted.
Police Officer Peter Carpenter testified that on October 14, 1998, he was employed as a correction officer at Sing Sing and assigned to the desk at the
auditorium entrance. At approximately 2:15 p.m., he was approached by claimant and another correction officer. Claimant then stated that he had fallen down the stairs on his way to the chapel and was injured. Claimant never stated that he had been assaulted.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also "what the State reasonably should have known – for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez v State of New York, supra at 254). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** 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).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that
the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (Id.). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678). The Court finds that upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, there is a lack of evidence sufficient to meet claimant's burden of proof. Indeed, the Court finds claimant's testimony not worthy of belief.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


January 24, 2005
White Plains, New York

Judge of the Court of Claims

[1]All quotations are to the trial notes or audiotapes unless otherwise indicated.
[2] Lieutenant Daye has been promoted since the time of the incident.