New York State Court of Claims

New York State Court of Claims

DOLBY v. THE STATE OF NEW YORK, #2005-031-534, Claim No. 108718


Claimant failed to show that assault upon him by another inmate was reasonably foreseeable, or occurred due to negligence on Defendant's part. Claim dismissed

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: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 3, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant John Dolby filed claim number 108718 on January 2, 2004. He seeks damages for an assault perpetrated upon him by another inmate on December 4, 2003 while Claimant was confined at Cayuga Correctional Facility ("Cayuga"). The claim also asserts a cause of action for the loss of certain items of Claimant's personal property due to Defendant's failure to properly secure these items after the assault. Claimant conceded that the lost property portion of the claim had been settled administratively prior to trial. For this reason, this cause of action is dismissed. This decision deals only with Claimant's assault cause of action. I held a trial in this matter on September 26, 2005.

Claimant testified that the assault occurred on December 4, 2003, on an outdoor walkway while Claimant was returning to his dormitory after lunch at the mess hall. Claimant was approaching his housing area when somebody behind him yelled. According to Claimant, he turned around and, without warning or provocation, an unknown assailant began punching him. As Claimant attempted to fight off his assailant, he saw a flash of metal and was cut on his face. Claimant's left thumb was also lacerated as he attempted to block his assailant's blows.

After cutting Claimant, the assailant ran away and Claimant looked for a correction officer. When he was unable to locate an officer, he gave chase to the assailant in order to ensure that the man was properly identified. Claimant followed the man into another dormitory where they encountered the facility's emergency response team and both inmates were apprehended. Claimant asserts that, at the time of the assault, several posts at which correction officers should have been stationed, were negligently left unmanned. Claimant also testified that the inmates were not frisked or screened with a metal detector upon leaving the mess hall.

The State called Sergeant Thomas Mulhern, a 24-year employee of the Department of Correctional Services, to testify concerning the incident. Sergeant Mulhern had personally witnessed the assault from an area near the mess hall. According to Sergeant Mulhern, Defendant had no notice that Claimant was in any type of danger prior to the assault nor did Defendant have prior knowledge of who attacked Claimant or why. Contrary to Claimant's testimony, Sergeant Mulhern testified that all security posts were properly staffed at the time of the incident. He described the layout of Cayuga as an oval, with the furthest distance between any two points being approximately 250 yards. He testified that, if you imagined the face of a clock superimposed over this oval, officers were posted at the 4 and 9 positions and he was stationed at the 6 position. Additionally, two "roving" or mobile units patrolled the perimeter of the oval to ensure that inmate movement went smoothly. The assault occurred at approximately the 12 or 1 position.

Cayuga is a medium security facility and Sergeant Mulhern testified that, in such facilities, inmates are permitted to take part in a movement without direct officer escorts. However, the entire grounds were at all times under officer supervision. Sergeant Mulhern himself witnessed the altercation and testified that, upon seeing the inmates fighting, he immediately called for an emergency response but one had already been called in by another officer.

The stations occupied by correction officers were determined by the Department of Correctional Services administration. Sergeant Mulhern further explained that information concerning the placement of security posts is not shared with inmates for security reasons. He offered his opinion that, to the extent Claimant had seen more or other security posts manned near the location of the assault on other occasions, perhaps Claimant may have confused the day and night shifts. Sergeant Mulhern explained that during the evening hours, when visibility is lower, additional guards are sometimes posted. This was not the case here, however, as the assault upon Claimant occurred in broad daylight during the lunch hour. At that time, the yard was staffed in accordance with normal custom and practice. Sergeant Mulhern stated that no regulation or directive requires that inmates be frisked or run through a metal detector after leaving the mess hall.

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). 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.
I find that the record before me indicates that Defendant did not have notice that Claimant was in any danger prior to the assault. As the Court of Appeals stated in
Sanchez v State of New York (99 NY2d 247, 252), "Regardless of the status of the plaintiff, the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived."
With regard to Claimant's allegations relating to Defendant's failure to properly supervise the walkway where he was assaulted I note Judge Bell's opinion in
Tucker v State of New York (Claim No. 85578, August 28, 1996):
The number of corrections officers who should be present in various areas of a correctional institution . . . essentially involves the experience and discretion of the Department of Corrections. Indeed, deference to the judgment of correctional facility authorities must be the rule, and a court cannot properly substitute its judgment for that of such authorities.
I also note that Claimant admitted at trial that his knowledge was based in large part on his own observations while confined in a maximum security setting. Sergeant Mulhern's credible testimony was that at Cayuga (a medium security facility) all posts were properly manned at the time of the incident. Further, Claimant did not know his assailant and did not know why he was assaulted. The assault was sudden, without warning, and took even Claimant by surprise. Neither Claimant nor Defendant had notice that a dangerous situation existed prior to either assault. Absent such notice, unremitting supervision was unnecessary (
see Hirsh v State of New York, 8 NY2d 125; Padgett v State of New York, supra; Carlino v State of New York, 30 AD2d 987, 988). I find, therefore, that Claimant has failed to demonstrate that the assault was reasonably foreseeable or that Defendant was negligent in failing to protect him from the unexpected and unprovoked assault.
Finally, based upon the evidence in the case, I find that the Defendant did not have notice of and an opportunity to intervene in the assault and thus protect Claimant (
cf. Huertas v State of New York, 84 AD2d 650, supra [Where assailant concealing a 2½-foot iron bar under an apron, creating a noticeable bulge, traversed 120 to 150 feet past five officers and several civilian employees without being questioned, assaulting and killing another inmate, State failed to provide adequate supervision of inmates]). Claimant has, therefore, failed to prove a prima facie cause of action for negligence.
Accordingly, Claim No. 108718 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.


January 3, 2006
Rochester, New York

Judge of the Court of Claims