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,
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
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
, 163 AD2d 914, lv denied
76 NY2d 711; Casella v State of New
, 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
(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
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
Tucker v State of New York
(Claim No. 85578, August 28, 1996):
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
see Hirsh v State of New York
, 8 NY2d 125; Padgett v State of
; 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
cf. Huertas v State of New York
, 84 AD2d 650, supra
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.