Claimant, Jonathan Hines, filed claim number 111295 on August 26, 2005,
alleging that the State of New York was negligent in failing to protect him from
an assault by other inmates. I conducted a trial of this matter on June 6, 2008
at Auburn Correctional Facility.
Claimant testified that, on September 11, 2003, he was assaulted by other
inmates in the recreation yard at Five Points Correctional Facility (“Five
Points”). According to Mr. Hines, he was playing football and in a stance
ready for a play to begin when he felt what seemed like a “bee
sting” on his face. He turned around and realized that he’d been
sliced with a razor type weapon. He stated that he did not know or see who
assaulted him, and that the assault happened in a split second and without
warning. When he looked up after being cut, Mr. Hines saw only 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 might have been related to a fight he had at Five Points
approximately three weeks earlier. 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 is the same inmate that cut Claimant, or that this inmate was
even present in the yard at the time of the incident. As a result of his
assault, Claimant has a scar from the nape of his neck to under his ear, across
his face and ending at the corner of Claimant’s eye. He required 37
stitches to close his wound.
On cross-examination, Claimant conceded that 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 stated that there were plenty
of officers in the yard, but none were near where the football game was being
played. Claimant did not see the weapon used against him. He also conceded
that he did not request protective custody either before or after the assault,
although after the assault, he was placed in involuntary protective
I note that, in his claim, Mr Hines asserts that Defendant was negligent for
failing to use metal detectors on all inmates as they entered the yard.
However, Claimant offered no testimony or evidence in that regard.
Defendant called Captain Paul Piccolo to testify. Captain Piccolo testified
that, at the time of the accident, he was an Area Sergeant and was called to
assist when Claimant’s injuries were discovered. When he arrived on the
scene, he saw Correction Officer Hogan attempting to get Claimant to calm down
and come with him. Claimant appeared agitated and initially refused to comply.
The yard was immediately closed and all inmates in the yard and the yard itself
were searched for weapons. None were found. Captain Piccolo believed after
discussing the incident with Claimant that Claimant knew his assailant but was
refusing to say who it was. Accordingly, Captain Piccolo recommended
involuntary protective custody for Claimant.
Captain Piccolo testified that all inmates go through a walk-through metal
detector on the way to the recreation yard at Five Points. They are also
randomly frisked and hand-scanned. All metal detectors are tested and
calibrated daily. He did testify, however, that inmates are very clever and can
sometimes get weapons into the yard. Some manage to fashion weapons out of
non-metallic materials such as glass, stone, plastic or plexiglass.
The State is required to use reasonable care to protect the inmates of its
correctional facilities from foreseeable risks 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 had 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, there was no such notice. Accordingly, unremitting
supervision was unnecessary (see Hirsh v State of New York, 8 NY2d 125;
Padgett v State of New York, 163 AD2d 914 supra; Carlino v
State of New York, 30 AD2d 987, 988).
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 did find the Claimant a credible witness. Indeed,
I believe that Claimant was uncommonly candid and forthcoming in his testimony.
Unfortunately, he 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 the allegations in the claim relating to Defendant’s
failure to make use of metal detectors, I note that Captain Piccolo’s
testimony clearly indicated that metal detectors were used. Additionally,
Defendant is not required to have each inmate pass through a metal detector on
the way to the yard. Further, it is not clear that the weapon that cut Claimant
was made of metal. Even if metal detectors were mandated, without proof that
the weapon is 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 No. 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. I find that Claimant has failed to demonstrate that Defendant was
negligent in any way relating to the vicious assault upon him.
Accordingly, Claim No. 111295 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.