While working in the Clinton Correctional Facility Annex mess hall on March 2,
2006, Robert Nestman (claimant) was assaulted by fellow inmate Terrence Mott,
resulting in claimant being thrown to the ground and fracturing his left elbow.
As he swept and mopped the floor at about noon on March 2, 2006, claimant asked
Mott for help and Mott declined to help. Claimant then asked Mott if he
declined to help because of the color of claimant’s skin. No words or
curses were exchanged and nothing further happened at that time.
Approximately 20 minutes later, as claimant waited to leave the mess hall in
the “go-back” area, Mott attacked claimant, attempting to punch him
and eventually throwing claimant to the floor, resulting in a fracture to
claimant’s left elbow. Claimant alleges defendant was negligent in
failing to supervise the group of inmates who had gathered in the
“go-back” area, where the assault occurred, that approximately 20
inmates had gathered in that area, that any gathering of six or more inmates was
considered a threat to security and that the failure of defendant’s
supervision was the proximate cause of the injuries he sustained.
Upon cross-examination, claimant indicated that he had worked in the mess hall
with Mott for about a month, that the two had had no prior fights or
altercations and that Mott was not on any “enemies list” of
claimant’s. He further stated there was a guard post, unmanned at the
time of his assault, about 20 feet from the assault location.
The defendant’s only witness was Wendell Bezio, a correction sergeant who
responded to the mess hall within a minute or two of the assault. Sergeant
Bezio testified that claimant had no “enemies list”, that no weapons
were found in the aftermath of the altercation, and that claimant declined
protective custody after the assault. He further testified two correction
officers are assigned to circulate throughout the kitchen and dining area of the
mess hall, and that no assigned stationary posts are required to be staffed in
the mess hall area.
“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 ). “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
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
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
and § 18; 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 (Matter of Blake
v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).
The claimant has failed to prove by a preponderance of the credible evidence
that defendant was negligent in its supervision of the inmates at the time of
claimant’s assault. The claim is dismissed.
The attack upon claimant was sudden and without warning. Inmate Mott and
claimant had never before had any argument or altercation, and they had worked
together in the mess hall for about a month. Inmate Mott was not on an
“enemies list” of claimant’s. No proof existed that inmate
Mott was particularly violence-prone or dangerous, nor was any proof produced
that claimant was particularly susceptible to attack. That inmate Mott would
suddenly and without forewarning attack claimant was not reasonably
Although claimant alluded to certain prison policies requiring a gathering of
six or more inmates requiring an undefined level of supervision, no proof
establishing the existence of any such policy was produced and Sergeant Bezio
expressly disclaimed the existence of such a policy. And although claimant
asserted that an unstaffed guard post located 20 feet from the location of his
assault was the proximate cause of his injuries, no proof was produced to
demonstrate that the post was obligated to be staffed, or under what
circumstances, if any, it was required to be maintained by defendant. Sergeant
Bezio testified there were no fixed points of supervision required to be
maintained in the mess hall area, but that two correction officers were assigned
to circulate throughout the area during mess.
For all of the foregoing reasons, the claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.