New York State Court of Claims

New York State Court of Claims

MERCADO v. THE STATE OF NEW YORK, #2009-041-504, Claim No. 111208


Claim is dismissed where claimant failed to prove at trial that defendant should have reasonably foreseen and prevented sudden altercation between claimant and fellow inmates.

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:
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On July 25, 2004, while in the recreation yard at Clinton Correctional Facility (Clinton), Jose Mercado (claimant) was injured in an altercation at approximately 6:30 p.m.

Claimant testified that while having his hair braided, he was attacked from behind by two unknown assailants who stabbed him with an ice pick, inflicting injuries upon his chest, neck and arm.

Claimant asserts the defendant was negligent in its supervision of the recreation yard, in permitting an ice pick into the yard (past metal detectors), and in wrongfully placing claimant in the yard that day when he should have been held in his cell that day, pending his scheduled trip to a court proceeding the following day.

Upon cross-examination, claimant conceded that his claim stated that he had been attacked by a single unknown assailant, and further, that after having been given a ticket for fighting on July 25, 2004, he pled guilty to that charge at a disciplinary hearing.

He further testified that the attack was sudden, that neither prior to nor after the altercation had he requested protective custody, that he had no enemies, had received no threats, did not feel threatened and that he did not expect trouble on July 25, 2004.

Correction Officer James Canning, on duty in the recreation yard watchtower on July 25, 2004, testified that he observed claimant and another inmate fighting, that he immediately reported the fight via radio, and that officers responded in 20 seconds. On the same day of the altercation, Correction Officer Canning prepared an Interdepartmental Communication (Exhibit A) and an Inmate Misbehavior Report (Exhibit B) in which he indicates having observed the claimant involved in a fight with another single, unknown inmate.

“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). “This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable” (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). “The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident” (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).

In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an “ ‘enemies list’ with the institution” (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was “a known dangerous prisoner” (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether “claimant was a known assault risk” (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).

The State’s potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon “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, 99 NY2d at 254 [emphasis in original]).

The fact that a correction officer is not present at the exact time and place of an assault does not rise to an inference of negligence absent a showing that facility officials had notice of a foreseeable dangerous situation (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]; Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 [1990]).

A correctional facility superintendent has discretion to “provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities” (see Correction Law § 137[2] and § 18[2]; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). In general, courts should defer to prison authorities in matters of internal prison security (Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).

Beyond the substantial credibility issues raised by claimant’s testimony, in which claimant failed to prove he was the victim or target of an assault, as opposed to a willing participant, if not the aggressor, in a physical confrontation, the claim must fail under the decisions cited above.

The lack of any known enemies of claimant, any previous threats to claimant, or of any perceived threats to claimant, obviates any allegation that defendant should have reasonably foreseen and taken measures to insulate claimant from harm, especially given its suddenness. Prisons are sometimes violent locations, housing violent individuals sometimes prone to sudden and violent acts. Those facts cannot serve as a basis to find that defendant acted negligently under the circumstances set forth in this claim.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

January 21, 2009
Albany, New York

Judge of the Court of Claims