In this claim, claimant seeks to recover damages for personal injuries suffered
by him when he was assaulted by another inmate on August 26, 2001 at Elmira
Correctional Facility (“Elmira”), where he was then incarcerated.
Claimant contends that the defendant had both actual and constructive notice of
a foreseeable risk of harm to him prior to this incident, and further contends
that there was inadequate supervision of inmates by the defendant in the
gymnasium at the time and place of this assault.
At trial, claimant testified that prior to this incident, he had previously
been incarcerated at Elmira when he was attacked by another inmate on December
Following the assault of December
20, 2000, claimant testified, he was transferred to Upstate Correctional
Facility, but was then transferred back to Elmira on August 7, 2001, less than
eight months after the prior assault. Claimant testified that during his
intake interview at Elmira on August 7, 2001, he asked the intake officer why he
was being returned to Elmira, since he had been recently subjected to an assault
at that facility. He testified that this officer then responded that he
(claimant) would not be at Elmira if he did not belong there.
Claimant then testified that approximately three weeks later, on August 26,
2001, he was in the gymnasium at approximately 9:40 p.m. when he was attacked
from behind and stabbed in the face by an inmate, whom he did not know at the
time. This inmate was identified as Steven Butterfield. As a result of this
assault, claimant was left with a four-inch scar which starts at his left temple
and runs down to his cheek. Claimant further testified that he cannot close his
left eye completely, and that he now needs to wear glasses as a result of this
assault. He is also required to take medication (Neurontin) and he suffers from
left-side facial paralysis with accompanying numbness and pain.
Claimant acknowledged at trial that prior to this incident, he did not know
inmate Butterfield, and had no idea why inmate Butterfield would perpetrate this
assault against him. Furthermore, when pressed, claimant testified that he did
not believe there was any connection between inmate Butterfield and inmate
Richard Hidalgo, the inmate who attacked him in the prior incident of December
Correction Officer Jeffrey M. Waite testified that he was a recreation officer
at the facility, assigned to the gymnasium area, and that he was working there
at the time of this incident. He testified that he actually observed inmate
Butterfield strike claimant and that he responded immediately to the attack and
separated the two combatants. He did not recall that any weapon was used by
inmate Butterfield in this assault, and there was no weapon recovered following
With regard to liability, it is well settled that the State is required to use
reasonable care to protect inmates of its correctional facilities from the
foreseeable risk of harm (Flaherty v State of New York, 296 NY 342;
Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New
York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack
by other prisoners (Littlejohn v State of New York, 218 AD2d 833). The
duty to protect inmates from the risk of attack by other prisoners, however,
does not render the State an insurer of inmate safety (Sanchez v State of New
York, 99 NY2d 247). The scope of the defendant’s duty of care is to
exercise reasonable care to prevent attacks which are reasonably foreseeable
(Sanchez v State of New York, supra). The test for liability has
evolved from the strict requirement of specific knowledge to encompass not only
what the State knew, but also “what the State reasonably should have
known - - for example, from its knowledge of risks to a class of inmates
based on the institution’s expertise or prior experience, or from its own
policies and practices designed to address such risks” (Sanchez v State
of New York, supra at 254 [emphasis in original]). Accordingly,
“[t]he mere occurrence of an inmate assault, without credible evidence
that the assault was reasonably foreseeable, cannot establish the negligence of
the State” (Sanchez v State of New York, supra at 256).
Claimant contends in this claim that the State had both actual and constructive
notice of a reasonable and foreseeable risk of harm prior to this incident,
based upon the assault which occurred on December 20, 2000. Claimant relies
upon his notice of intention to file a claim for personal injuries occurring in
this prior assault, which was served upon the Attorney General on or about
February 6, 2001, as providing actual notice to the State of the prior assault.
Additionally, as previously indicated, claimant testified that he advised his
intake officer of this prior assault when he was returned to Elmira on August 7,
2001. Despite this actual notice of the prior assault, claimant contends that
defendant was negligent in returning him to the general population at Elmira in
In this Court’s opinion, it is significant that no testimony was adduced
to establish any connection whatsoever between the prior assault involving
inmate Hidalgo on December 20, 2000, and the assault occurring on August 26,
2001 by inmate Butterfield, which forms the basis of this claim. Claimant
himself testified that he did not believe there was any connection at all
between these two inmates, and that the two assaults were not related.
Additionally, there was no testimony or any other evidence at trial to suggest
that the State had any reason to know that inmate Butterfield was prone to
perpetrating an assault.
Since there is no indication that the assault of August 26, 2001 by inmate
Butterfield was related in any manner whatsoever to the prior assault of
December 20, 2000, the Court finds that the prior assault, standing alone, is
insufficient to establish that the State had notice of a reasonable foreseeable
risk of harm to claimant.
Claimant further contends that the State had notice of a foreseeable risk of
harm based upon a prior altercation which occurred in the gymnasium at
approximately 7:30 p.m. on August 26, 2001, approximately two hours and
fifteen minutes prior to the assault against claimant by inmate Butterfield.
Neither claimant nor inmate Butterfield were involved in this altercation.
Also, there was no testimony or any indication to suggest that the two incidents
occurring on August 26, 2001 were related in any manner. Claimant did not
testify that he was present in the gymnasium at the time of the prior incident,
nor did he testify that his assault was the result of any retaliation for this
Accordingly, the Court finds that the prior altercation, even though it
occurred on the same date and in the same location, was completely unrelated to
the assault forming the basis of the instant claim, and is therefore
insufficient, in and of itself, to establish notice of a reasonable foreseeable
risk of harm to claimant.
Finally, claimant also contends that there was a lack of supervision in the
gymnasium area at the time of his assault, and that there should have been 10
correction officers assigned and stationed at their respective posts in the
gymnasium at the time of the assault. Aside from claimant’s testimony,
however, there was no evidence to establish that the gymnasium area was
improperly or inadequately supervised, or any evidence to suggest that the State
failed to respond to this incident in a timely manner. On the other hand,
Correction Officer Waite testified that there were 10 officers assigned to the
gymnasium and outdoor recreational area at the time of the assault.
Additionally, as previously indicated, he actually witnessed inmate Butterfield
strike claimant, at which point he immediately intervened.
Based upon the foregoing, therefore, the Court finds that claimant has failed
to prove, by a preponderance of the evidence, that defendant had either actual
or constructive notice of a foreseeable risk of harm to claimant prior to the
assault by inmate Butterfield occurring on August 26, 2001. Accordingly,
this claim must be and is dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.