New York State Court of Claims

New York State Court of Claims
GONZALEZ v. THE STATE OF NEW YORK, # 2009-044-002, Claim No. 110725


State found not liable for inmate claimant's injuries sustained in assault by another inmate. Claimant failed to meet burden of proof that incident was reasonably foreseeable.

Case information

UID: 2009-044-002
Claimant short name: GONZALEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110725
Motion number(s):
Cross-motion number(s):
Claimant's attorney: RAYMOND GONZALEZ, Pro se
BY: James E. Shoemaker, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 27, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate proceeding pro se, brings this claim against defendant State of New York (defendant), claiming that he was assaulted on December 21, 2003 by an unidentified inmate due to negligent supervision by the Department of Correctional Services at Elmira Correctional Facility (Elmira). Trial of the matter was held at Elmira on November 5, 2008.

At trial, claimant testified that the incident had occurred at approximately 9:30 p.m., while he was on "early go-back" from recreation. He said that as soon as he came in, Officer Coleman ordered the early go-back inmates to go up to their floors. Claimant was waiting for an officer to let him into his block when an inmate came up behind him and slashed his face, causing an approximately 7-inch long, 2-inch deep laceration starting at his chin and continuing to below his right ear, which required 11 sutures to close.(1) Claimant said he did not recognize his assailant, but would have been able to identify him if he had seen him again. Claimant stated that he had no reason to believe he was in danger, and had no known enemies. He was not affiliated with any gang, nor had he been involved in a dispute with any other inmates.

Claimant's contention is that if the correction officer assigned to the third-floor gallery gate had been at his post, that officer could have prevented the assault. He said that normally the inmates would go up to their cells one floor at a time after recreation, but that night was unusual because the officer ordered all the inmates to go up at once. Seventy-four inmates went out to recreation that night; claimant was not certain how many inmates came in at early go-back. Claimant had been housed in that cell block for three months, and at Elmira for five months.

Correction Officer (CO) T. Whaley also testified at trial. Whaley said that he was on the ground floor supervising early go-back from recreation the night of the incident. CO T. Burns brought claimant down from his block, stating that claimant had been injured. Whaley took claimant to the infirmary.(2) Claimant asked Whaley whether most inmate-on-inmate assaults occurred when inmates were going to and coming from recreation. Whaley responded that such assaults occur any time a large group of inmates are gathered in one place. On cross-examination, Whaley noted that the particular block where claimant resided was designated for a drug treatment program, and that the officers usually did not anticipate any difficulty from those inmates.

CO Burns also testified. Burns found claimant at the gate to his gallery holding his neck after being attacked. Burns said that there should, in general, be an officer on the landing of the level to which the inmates were returning, to let the inmates into the cells. Burns said that he would have been the officer in charge of letting the inmates into their cells that evening. He acknowledged that his memorandum reporting the incident noted that claimant was already on his landing when Burns went up the stairs. He said there was "probably not" any other officer up on the landings.(3) He agreed that it was "fair to say" that claimant and his assailant were not under direct supervision by any officers when claimant was attacked. He did not recall how many inmates came in from recreation at early go-back.

It is well settled that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, 112 AD2d 562 [1985]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]).

Claimant himself testified that he did not know an attack was pending, or that he was in danger from another inmate, and stated he had no known enemies. He contends that if a guard had been present at the gate, the attack could have been prevented. Obviously, this argument is merely speculative.

The Sanchez Court stated:

we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and 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).

Based on the evidence presented at trial, this is simply one of those unfortunate and unpreventable incidents which can occur in the absence of "unremitting surveillance." Claimant failed to demonstrate that defendant had notice, whether actual or constructive, of a potential attack, and thus failed to show that defendant breached its duty to him.(4) Accordingly, Claim No. 110725 is hereby dismissed.

Let judgment be entered accordingly.

January 27, 2009

Binghamton, New York


Judge of the Court of Claims

1. Claimant's Exhibit 4, Unusual Incident Report.

2. See Claimant's Exhibit 1.

3. All quotes herein taken from the Court's recording of the proceedings.

4. Claimant's citation (see Claimant's Exhibit 9) to various sections of the State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries (9 NYCRR 7003.2 [c] [4]; 7003.3 [a]; 7003.4) is clearly not applicable to State Correctional Facilities (see Sanchez v State of New York, supra, n 2).