New York State Court of Claims

New York State Court of Claims

TISLON v. THE STATE OF NEW YORK, #2006-031-527, Claim No. 108638


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: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 30, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

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 Facility.
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.”
On cross-examination, 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 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). 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 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 New York (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.
Neither 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 York, 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 hereby DISMISSED.
Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
Any and all other causes of action are hereby denied.

November 30, 2006
Rochester, New York
Judge of the Court of Claims

[1].Mr. Tislon’s claim also purported to assert a cause of action for illegal confinement. As no proof relating to this cause of action was introduced at trial, that cause of action is deemed abandoned and is dismissed.