New York State Court of Claims

New York State Court of Claims

EMPTAGE v. THE STATE OF NEW YORK, #2007-031-510, Claim No. 109655


Claimant failed to demonstrate that State was negligent in preventing assault upon him by another inmate. 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:
September 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Brian S. Emptage, filed claim number 109655 on July 26, 2004, alleging that Defendant was negligent in failing to protect him from an assault by another inmate. I conducted a trial of this matter on May 8, 2007, at Auburn Correctional Facility (“Auburn”).

Claimant testified that, on May 10, 2004, while incarcerated at Auburn, he was assaulted by another inmate as he was returning to his cell after lunch. He testified that he did not know his assailant, nor why he was assaulted. During the assault, Claimant was slashed on the right side of his face and on his right ear. He needed eight stitches to close the wound and is left with a permanent scar.

Though not mentioned in his trial testimony, in his claim Mr. Emptage asserts that his assailant was a member of a prison gang called the “Bloods.” He further asserts that he had problems with this gang prior to the assault and that Defendant was aware of this fact. He asserts that Defendant was negligent for putting him in a facility where he could be assaulted by members of this gang.

I note that, upon his arrival at Auburn in March of 2004, two months before the assault, Claimant indicated that he had no known enemies at Auburn (Defendant’s Exhibit C) and he signed a document (Defendant’s Exhibit B) indicating that, to his knowledge, he did not need protection and there was no reason he could not be in general population. Claimant did not report concerns for his safety or request protective custody prior to the assault. In fact, Claimant’s Exhibit 1, a recommendation for involuntary protective custody, indicates that Claimant did not want protective custody status, even after the assault.

At the close of Claimant’s case, Defendant moved for dismissal of the claim asserting that Claimant failed to introduce any evidence demonstrating that Defendant, or even Claimant had notice that the assault was in any way foreseeable. I reserved decision on Defendant’s motion. Defendant called no witnesses in defense of the claim.

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 attacker 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.

In this instance, Claimant failed to demonstrate that the State 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, 988). Claimant did not know, and had no prior dealings with his assailant. The assault was sudden and without warning. Even Claimant was taken completely by surprise. I find that Claimant has failed to demonstrate that his assault was reasonably foreseeable or that Defendant was negligent in failing to protect him from the unexpected and unprovoked assault. Additionally, when the only allegation relating to notice is that Claimant had trouble with a gang rather than specific known individuals, the State cannot be held liable (Savoca v State of New York, Ct Cl, December 3, 2003 [Claim No. 98982], Ruderman, J., UID #2003-010-037).

Accordingly, Claim No. 109655 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.

September 28, 2007
Rochester, New York

Judge of the Court of Claims