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
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
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):