New York State Court of Claims

New York State Court of Claims

NESTMAN v. THE STATE OF NEW YORK, #2009-041-513, Claim No. 113090


Claim alleging defendant was liable for inmate-on-inmate assault dismissed after trial where assault was sudden and without warning and combatants had no prior history of conflict.

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 General
By: Thomas R. Monjeau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 [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 (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 foreseeable.

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.

October 28, 2009
Albany, New York

Judge of the Court of Claims