New York State Court of Claims

New York State Court of Claims

ORSO v. THE STATE OF NEW YORK, #2008-013-513, Claim No. 108391


Claimant failed to establish that the assault upon him by a fellow inmate was foreseeable, or that there was a breach of any duty owed to him by the Defendant, and the claim is 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:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on October 10, 2003, and alleges that Claimant was assaulted by a fellow inmate(s) at Wende Correctional Facility (Wende) on July 17, 2003 at approximately 8:15 p.m., sustaining a slash wound to the right side of his face.

Claimant had been escorted with other B-Block inmates to the recreation area/ball field at about 6:00 p.m. After having exercised for a period of time, he sat alone at a small concrete table and was attacked from behind and on both sides by a number of other inmates. The entire event took just moments, and Claimant testified that he was “off guard” when it happened. He testified that prior to this incident he kept to himself as much as possible, and that he had never been charged with inmate behavioral or disciplinary violations.

It is Claimant’s contention that there were no security checks of inmates entering the ball field area, no walk-through metal detectors or hand (wand) detectors, and that the failure to have utilized these means of security constituted negligence and allowed him to be “blind sided,” assaulted and injured.

At the time of the assault, perhaps four or five correction officers were allegedly at an open porch area in the yard, some 35 to 40 feet away to Claimant’s left. He could not recall whether any of the officers had made “rounds” of the recreation area for quite a period of time prior to the assault. There was an officer standing at a lower tower outside the fence (the whole area was described by Claimant as a former county jail), and there were no correction officers inside the fence some 20 feet away, as they were all at the porch area. It was bright, clear and still daylight at the time of the assault.

Claimant alleges that he was in shock after having been slashed, and never saw a weapon. There had been no problems with any other inmates prior to the assault. There were no verbal warnings or threats, and no reason or problem which would have put him on alert of a possible attack. He repeated unequivocally that there were no verbal warnings, no prior threats, no altercations, and essentially has no explanation for the attack/assault upon him by unknown and unidentified inmates.

As the inmates congregated for the final “go back” from the recreation yard to his block area, there had been no formal notice of the assault or his injury, and Claimant was not pulled out immediately, and no one had said anything. He was using his shirt on his face at the site of the wound. Correction Office (CO) John E. Ball observed his shirt off and covering his face and gave Claimant a direct order to put it on, an order that Claimant promptly obeyed. It was only when they arrived back at B-Block that CO Ball observed the cut on his face. He was then escorted to the infirmary, after which he was taken to the Erie County Medical Center (ECMC) where he was given 15 stitches.

Officer Ball testified, using the logbook for the yard (Exhibit F), that there were 65 inmates who had entered the ball field at approximately 6:15 p.m. on the day in question. He confirmed that there were at least four correction officers assigned to the ball field at that time, consisting of two recreation officers from the block and two officers assigned to the ball field. He testified that based upon his experience, the assignment of four officers to supervise the ball field that evening was fully consistent with staffing requirements for proper supervision. Additionally, there is an officer assigned to the tower at all times, 24 hours a day, at a distance of perhaps 75 yards away from the ball field, and it was his responsibility to serve as a backup observer for the ball field.

Correction Officer Scott Rybak had received a call from the tower that an inmate had been in the bathroom for a while, then knocked on the door and observed Claimant in the bathroom, washing and drying his face. CO Rybak was assigned to cover the ball field that evening on the 3:00 p.m. to 11:00 p.m. shift, and he continued on his rounds of the ball field after completing his conversation with Claimant. At that time CO Rybak testified that he was unaware of any injury that Claimant had sustained, because if he had been aware of an injury or laceration, he would have immediately segregated Claimant from the other inmates and brought him to the medical offices. Since the officer was unaware at that time, Claimant was simply permitted to proceed back to the block as if nothing had taken place. Clearly, Claimant did not bring this assault to the attention of any correction officer. After the assault, Claimant refused voluntary protective custody and then underwent an involuntary protective custody hearing.

The essence of Claimant’s theory of liability is that appropriate security checks of inmates entering the ball field area, through the use of walk-through or hand (wand) detectors, were not utilized, and the failure to have done so constituted negligence. There was no evidence of a duty to utilize such metal detectors, and indeed, since the weapon was never found, there is no proof that it was made of metal and could easily have been fabricated from a nonmetallic plastic, such as a toothbrush.

This claim raises issues regarding assaults upon inmates that have been considered on numerous occasions, and the applicable law has been shaped by judicial opinion over many years. Traditionally, in past claims, the courts have applied generally recognized and accepted standards that govern an inmate’s entitlement to recovery only if (1) he was known to be at risk and the Defendant failed to provide reasonable protection (see Sebastiano v State of New York, 112 AD2d 562); (2) Defendant had notice that the assailant was particularly prone to perpetrating such an assault and Defendant failed to provide reasonable protection (see Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) Defendant had ample notice and opportunity to intervene in order to protect Claimant and failed to do so (see Huertas v State of New York, 84 AD2d 650).

Claimant presented no evidence, nor does he argue, that he was known to be at risk of assault or attack. Since the assailant was never identified, it cannot be seriously contended by Claimant that the Defendant was on notice of any threats or propensity for assault or violence of other inmates directly against him.

The scope of Defendant’s duty of care to its inmates is to protect them from the risks of harm which are reasonably foreseeable (Sanchez v State of New York, 99 NY2d 247). Even the dissent in Sanchez recognized that perhaps the three traditional scenarios that have generally been relied upon concerning foreseeability have been too narrowly defined and observed that:

[T]he list is incomplete; other types of proof would also raise a question of fact. For example, an inmate might establish foreseeability by offering proof that there were a number of prior attacks in a certain location in a facility, indicating an unreasonable risk of harm particular to that place, or by demonstrating that the authorities received threats or were aware -- or should have been aware -- of other indicia of unrest prior to a certain event or program which ultimately culminated in violence. [Sanchez v State of New York, 99 NY2d 247, supra (Graffeo, J., dissenting at 261-262.)]

No evidence was presented that distinguishes this unfortunate assault from those present every day at State correctional facilities which house convicted felons, and that some, like Wende, are categorized as maximum security facilities. The State’s duty to prisoners

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. [Sanchez v State of New York, supra at 256.]

There is no credible evidence that this assault was foreseeable, and no credible evidence of the breach of any duty owed by the Defendant to the Claimant. Accordingly, the claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon are now denied.


November 19, 2008
Rochester, New York

Judge of the Court of Claims