Claimant Anthony Tislon filed claim number 108638 on December 11, 2003.
He seeks damages for an assault perpetrated upon him by another inmate, his
cell mate, on February 5, 2001, while Claimant was confined at Five Points
Correctional Facility (“Five Points”).
I held a trial in this matter on July 27, 2006, at Auburn Correctional
Regarding the events of February 5, 2001, Claimant testified that
he and his cell mate “had words” regarding the space they shared in
the cell. Thereafter, while he was sleeping in his bunk, Claimant’s cell
mate attacked him without warning. According to Claimant, his assailant
“cracked his head open.” Claimant was taken to an outside hospital
where four staples were used to close the wound on the top rear portion of his
head. Claimant alleges that on the day of the incident, but prior to the
attack, he had given Defendant notice that he and his cell mate were not getting
along. According to Claimant, he told Correction Officer Hogan that he and his
cell mate “couldn’t relate.”
Claimant admitted that he did not give Officer Hogan any further information
other than that he and his cell mate “couldn’t relate.” He
also conceded that he himself did not ask for protective custody prior to the
assault as he did not think it was necessary. In fact Claimant stated that
“in a million years” he did not think his cell mate would assault
him as he did.
Defendant called Correction Officer Troy Mitchell to testify.
Officer Mitchell was not present at the time of the assault, but had been
involved in the Five Points investigation of the incident. According to Officer
Mitchell, the investigation showed that, prior to the assault, there was nothing
that occurred that would have warranted separating the two inmates. Officer
Mitchell indicated that, pursuant to standard policy, an inmate’s claim
that he could not relate to his cell mate would not be something that would
trigger a separation of the inmates.
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
, 163 AD2d 914, lv denied
76 NY2d 711; Casella v State of
, 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). 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
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 allegation that the assault was
foreseeable because he told Defendant that he and his cell mate
“couldn’t relate,” I find that this information, without more,
does not give rise to liability. As this Court stated in Mercer v State of
(Ct Cl, July 22, 1996 [Claim No. 90188], Corbett, J.), "
[L]iability may be based either on defendant's failure to protect claimant from
a known dangerous prisoner or to use adequate supervision to stop that which was
foreseeable in an immediate or proximate sense, rather than in some generalized
way" (see also Spadaro v State of New York
, 38 Misc 2d 489, affd
28 AD2d 604). Claimant’s comment that he and his cell mate could not
relate was far too generalized and lacked the specificity necessary to permit
Defendant to take reasonable steps to prevent the assault.
Claimant nor 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; Padgett v State of New
, supra; Carlino v State of New York
, 30 AD2d 987). 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.
Accordingly, Claim No. 108638 is
Any and all other motions on which the Court may have
previously reserved or which were not previously determined, are hereby
Any and all other causes of action are hereby denied.
JUDGMENT BE ENTERED ACCORDINGLY.