New York State Court of Claims

New York State Court of Claims

FULLEN v. THE STATE OF NEW YORK, #2006-030-009, Claim No. 107411


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:
Third-party defendant’s attorney:

Signature date:
June 13, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Dan Fullen alleges in Claim Number 107411 that Defendant’s agents at Green Haven Correctional Facility failed to protect him from an assault by a fellow inmate on or about June 27, 2002. Trial of the matter was held on March 3, 2006.

Mr. Fullen testified that on that date he was “present on D-Block hallway on a call-out when . . . [he] was struck from behind by a fellow inmate.”[1] After he was assaulted, the inmate was “subdued” and taken away. Claimant indicated that the assaulting inmate was issued a misbehavior report, but he himself was not issued a misbehavior report. Claimant was treated at the facility hospital suffering a “minor concussion and lacerations”, and he was keep-locked for his protection. A copy of an Inmate Misbehavior report is attached to the Claim filed, confirming that there was a disciplinary ticket issued to the assailant.

On cross-examination, Claimant acknowledged that he had been received into the custody of the New York State Department of Correctional Services in 1986. He denied any knowledge of an enemies list, or a separatee list procedure with regard to known enemies. Prior to June 27, 2002 he had never had any altercation with or knowledge of his assailant, Robert Suarez, and had never asked to be separated from the inmate.

No other witnesses testified, and Claimant did not present any other evidence.[2]

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, supra. 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, 99 NY2d 247, 253 (2002), see also Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The mere fact that a correction officer is not present at the precise time and place of an assault, for example, does not give rise to an inference of negligence absent a showing that officials had notice - actual or constructive - 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 76 NY2d 711 (1990); Huertas v State of New York, 84 AD2d 650 (3d Dept 1981).[3] “. . . [U]nremitting supervision . . .” is not required. Colon v State of New York, supra at 844. When the assault occurred, it was dealt with immediately, according to Claimant’s testimony, and immediate medical care was given.

While actual knowledge with respect to the foreseeability of a given assault “. . . offers a bright-line test, that line redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability. What the State actually knew plainly falls within the ambit of foreseeability. . . . 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 . . . (citations omitted)”[4] may also be established. Sanchez v State of New York, supra.

As distressing as it was to have been the victim of what appears to have been an unprovoked assault upon his person, Mr. Fullen has simply not established on this record that the State failed to provide him with reasonable protection against a foreseeable risk of harm. He has not established the foreseeability of the alleged assault, and the adequacy of any measures taken to protect him and supervise his fellow inmates.

Accordingly, Defendant’s motion to dismiss, based upon Claimant’s failure to establish a prima facie case, reserved on at the time of trial, is hereby granted, and Claim Number 107411 is dismissed in its entirety.

Let Judgment be entered accordingly.

June 13, 2006
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or the audiorecording unless otherwise indicated.
[2]. Defendant submitted a two (2) page exhibit purportedly showing that a search had been made of DOCS records and had revealed that Mr. Suarez was not on any enemies list. See Exhibit A. Although the document contains a certification, there is no additional page containing any substantive information, thus the exhibit is of no probative weight. In any event, Mr. Fullen conceded that he had not indicated that Mr. Suarez was an enemy prior to the assault alleged herein.
[3]. Another example might be 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.
[4]. It is noted that the majority opinion - addressing the concerns of the dissent - declares that “. . . we underscore that the State’s duty to prisoners does not mandate unremitting surveillance in all circumstances , and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate.” The majority confirms that in the case before it there was simply a triable issue, given “. . . uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate ‘go-back’ time; and uncontested evidence of both the regularity of the correction officer’s inattentiveness at precisely that time and the officer’s inability to see claimant at the location where he was required to stand.”