New York State Court of Claims

New York State Court of Claims

FERENS v. THE STATE OF NEW YORK, #2007-031-513, Claim No. 110083


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

Signature date:
September 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Robert Ferens, filed claim number 110083 on November 12, 2004, alleging that the State of New York was negligent in failing to protect him from an assault by another inmate. I conducted a trial of this matter on May 11, 2007, at Auburn Correctional Facility (Auburn).

Claimant testified that, on September 27, 2004, he was assaulted by another inmate in the recreation yard at Auburn. The assault happened in a split second and without warning, with Claimant being slashed across the face with a razor-type weapon. Claimant never saw who assaulted him. When he looked up after being cut, Claimant only saw a group of inmates walking away from him. Although Claimant testified that he did not know his assailant, and that he did not know why he was assaulted, he believes that the assault related to an earlier fight he had been in. According to Claimant, after the assault occurred, he heard that there had been threats made against him by the individual inmate with whom he had fought. There is no indication, however, that this inmate was the same inmate that cut Claimant, or that this inmate was even present in the yard at the time of the incident.

As far as Claimant’s theory of liability, his claim asserts that Defendant was negligent for failing to use metal detectors on all inmates as they entered the yard, and that a guard post located near where the assault took place was unmanned at the time of the assault. At trial, Claimant also indicated that there had been threats against him and that Defendant should have foreseen the assault for this reason.

On cross-examination, Claimant conceded that he had never requested protective custody and he had never given notice to Defendant that he believed he was in danger. In fact, Claimant did not believe he was in danger at the time of the assault. He also conceded that he had no evidence to indicate that the assault was in any way related to the earlier fight. Claimant also indicated that inmates are randomly pat frisked or passed through a metal detector on their way into the recreation yard.

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 Correction Officer Talbot to testify. Officer Talbot, who has been employed by the New York State Department of Correctional Services for 19 years, was a yard officer working in the recreation yard at Auburn on the day of the incident. He was charged with supervising inmates in the yard. This included patrolling the yard, frisking inmates on their way into and out of the yard, as well as frisking inmates once they were in the yard. He indicated that the procedure for screening inmates for contraband involved pat frisks and wand frisks as well as the use of “boss chairs” or specialized metal detectors. However, each inmate is not searched each day. Officer Talbot indicated that there just isn’t enough time or enough staff to search every single inmate. The searches occur each day and are conducted at random. He also indicated that inmates are clever and can often fashion slashing-type weapons out of everyday items such as tin can lids.

Officer Talbot also indicated that correction officers are generally not supposed to stay in a fixed location but rather roam around the yard. This assists in maintaining proper security by preventing the inmates from knowing where the corrections officers might be at any given time.

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 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 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 did not know his assailant. The assault was sudden and without warning. Even Claimant was taken completely by surprise. Further, the incident began with the cut to the Claimant’s face and left no opportunity to intervene prior to injury. 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.

With regard to Claimant’s allegations that Defendant was negligent for permitting the weapon used against him to be taken into the yard, I find little merit in this theory. Defendant is not required to have each inmate pass through a metal detector on the way to the yard. Indeed, such a requirement would be impractical. Further, it is not clear that the weapon that cut Claimant was even made of metal. Even if metal detectors were mandated, without proof that the weapon was made of metal, there can be no causation (see e.g. Evans v State of New York, Ct Cl, January 31, 2006 [Claim No. 100170], Ruderman J., UID #2005-010-069). Claimant believes that he was cut with a razor, and argues that this is a very common weapon within the correctional facilities. However, the weapon could also have been glass or some other non metallic object.

Finally, with regard to Claimant’s allegation that Defendant was negligent for not properly manning the recreation yard post located near where the attack occurred, I note that Claimant failed to demonstrate that the State had notice that a dangerous situation existed prior to the assault. Absent notice that a dangerous situation existed, unremitting supervision is 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). As stated by Judge Bell in Tucker v State of New York (Claim No. 85578, August 28, 1996):
The number of corrections officers who should be present in various areas of a correctional institution...essentially involves the experience and discretion of the Department of Corrections. Indeed, deference to the judgment of correctional facility authorities must be the rule, and a court cannot properly substitute its judgment for that of such authorities.

Accordingly, Claim No. 110083 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