New York State Court of Claims

New York State Court of Claims

SUMMERS v. THE STATE OF NEW YORK, #2007-044-007, Claim No. 108275


Claimant’s assault by a fellow inmate in the same general location and the same general time of day as a previous assault seven years earlier (see Sanchez v State of New York, 36 AD3d 1065 [2007]) is insufficient as a matter of law to establish that defendant had notice (actual or constructive) that claimant was in imminent danger. Claimant cannot establish liability simply because the inmates were not always within the direct sight of any correction officer, given that claimant was unexpectedly attacked by an unknown assailant and had no known enemies at the facility.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on September 18, 2002 by an unidentified fellow inmate due to negligent supervision by the Department of Correctional Services (DOCS) at Elmira Correctional Facility (Elmira). Trial of the matter was bifurcated and held in the Binghamton District on January 16, 2007. This decision addresses only the issue of liability.
At trial, claimant testified that at the time of the incident, he worked in the facility's law library. The library would close each night between 9:15 and 9:30 p.m., when the supervising correction officer would announce that it was time for the inmates to go back to their cells (known colloquially as “go-back time”). On the night of the incident, when Correction Officer Wolf announced it was time for the inmates to return to their cells at approximately 9:20 p.m., claimant completed his duties by putting books away. He then exited the library and was on his way down a set of stairs to the “central gate” area when he felt something on his face. He put his hand up to his head and realized it was blood, and that he had been slashed from behind with a sharp object. He proceeded down the stairs, and then outside to the central gate, where an officer saw that he had been injured and took him to the infirmary. The stairs were approximately six feet wide, with a door at the top leading to the law library and an opening at the bottom to the outdoors. From that opening, it took claimant 30 to 45 seconds to reach the central gate area, where two or three officers were standing.
Claimant stated that there were approximately 10 inmates in front of him on the stairs, and “lots” behind him. He indicated that he did not see CO Wolf during the 5 to 10 minutes he spent putting away the books after Wolf announced it was go-back time, nor did he see any officers on the stairs. There were “probably” 8 other inmates working in the law library, and 20 to 25 inmates using the law library that night.
Claimant testified on cross-examination that all inmates passed through a metal detector at the central gate on their way to the law library. Additionally, inmates would be randomly stopped and pat-frisked. There were no problems or altercations in the law library that night. Claimant admitted that he had no prior disciplinary problems or known enemies, that the identity of his assailant has never been confirmed, and that he had no reason to know he was going to be attacked. Claimant further acknowledged that he had advised DOCS upon his admission to the facility that he had no known enemies and that he was not a gang member.
Claimant offered no other witnesses,
and rested his case at the close of his testimony. Defendant then moved to dismiss the claim for failure to establish a prima facie case and, in particular, for failure to show that the incident was reasonably foreseeable. The Court reserved on this motion.
On behalf of defendant, CO Wolf testified that his duties as a resource officer at the time meant that he could be assigned to any area of the facility. On the night of the incident, his responsibilities were to maintain the safety of the law library area, and to maintain care, custody and control of the inmates. He stated there were seven inmates working in the law library that night, and 16 inmates doing research. There were no disturbances during the evening, so the assault came as a surprise. He did not become aware of the assault until he reached the central gate.
Wolf indicated that the procedure for go-back time was for the officers at the central gate to call him and tell him that he could bring the prisoners back. He would announce that it was go-back time, and make sure that no inmates remained in the library. He would then follow them down to the central gate. Wolf did not remember any other incidents of inmate-on-inmate assault during go-back time from the law library while he was working as a resource officer.
Sergeant Howarth also testified, on behalf of defendant, that he was in charge of investigating the incident. Claimant told Howarth that he (claimant) did not know who assaulted him, or why. The weapon was never found. Photographs taken immediately after the incident show that the assault must have occurred prior to claimant entering the stairwell, as there was blood on the floor in the area before the door leading to the stairwell. Howarth testified that he did not recall any assaults occurring during go-back time from the law library, although he did recall some fights in the law library “area.” He defined the law library area as including the school building and central gate area. He stated that the stairwell itself was not usually a dangerous area, and that it was adequately lit.
In Sanchez v State of New York (99 NY2d 247, 255-256 [2002]), the Court of Appeals stated:
[t]he State owes a duty of care to inmates for foreseeable risks of harm; and that foreseeability is defined not simply by actual notice but by actual or constructive notice – by what the “State knew or had reason to know”, what the State “is or should be aware”
of . . . 
Finally, we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State

(citations omitted; emphasis in original).

Claimant himself testified that he did not know an attack was pending, or that he was in danger from another inmate. Rather, the evidence set forth at trial established that claimant had no known enemies and that the supervising officer (Sergeant Howarth) was not aware of any prior incidents of inmate-on-inmate assault in that particular setting in the approximately six years he had held the job of supervisor. Claimant has not established by a preponderance of the evidence that defendant could reasonably have foreseen the attack.
Claimant relies on the same argument set forth when Sanchez was retried (Sanchez v State of New York, Ct Cl, June 28, 2005, Lebous, J., Claim No. 93576 [UID # 2005-019-011]), i.e., that defendant must be held liable simply because CO Wolf did not have claimant in his direct line of sight. As in Sanchez, claimant cites rules applicable to county jails (see 9 NYCRR 7003.2 [c] [1], [3]; 7003.4) in support of this proposition. However, the Appellate Division, Third Department has affirmed the trial court’s determination in Sanchez , holding that:
The Court of Claims properly found that defendant is not liable merely because the correction officer failed to keep claimant in his direct line of sight. Liability does not lie merely because the officer could not see claimant when claimant was attacked . . . Moreover, claimant's reliance on rules applicable to county jails . . . prove only that such facilities are dangerous places where the possibility of inmate-on-inmate assault exists. Such general proof is insufficient to establish that a reasonable probability existed that the claimant would be attacked at this time and place.

(Sanchez v State of New York, 36 AD3d 1065, 1067 [citations omitted; emphasis in original], 2007 NY Slip Op 00205 [3rd Dept., Jan. 11, 2007], at 3-4).
These principles are true in this case as well. Claimant’s sole proof that defendant could have foreseen that this claimant could have been attacked at this time and place is his reliance on the facts in Sanchez, which show merely that claimant Sanchez was attacked by another unidentified inmate after a class in the same building, at approximately the same time of day, but seven years prior to the assault in this case. This is, as a matter of law, insufficient to establish that defendant had either actual or constructive knowledge that the claimant in this proceeding was in imminent danger at the time and place of the occurrence such that defendant could have prevented the attack.
Defendant’s motion is granted and Claim No. 108275 is accordingly dismissed. All other motions on which the Court previously reserved or which were not previously determined at trial are hereby denied.
Let judgment be entered accordingly.

March 5, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Prior to trial, claimant's counsel requested that the Court issue an order directing defendant to provide another inmate, Francisco Sanchez, to be a witness for claimant at trial. Counsel argued that Sanchez' testimony was necessary to show that defendant had notice of prior inmate-on-inmate assaults in that location during go-back time. Sanchez brought a similar negligence claim in this Court against defendant for an incident which occurred at Elmira in 1995 during go-back time from the law library. Sanchez' claim was the subject of a Court of Appeals decision in which that Court clarified the law pertaining to notice and foreseeability in inmate assaults (Sanchez v State of New York, 99 NY2d 247 [2002]). After trial, Sanchez' claim was dismissed on the ground that the incident was not reasonably foreseeable.

The Court denied claimant's request that defendant provide Sanchez as a witness in this case, on the ground that his assault seven years prior to the one at issue in this case was not relevant.