Claimant brings this claim against defendant State of New York (defendant),
alleging that he was assaulted on July 30, 2001 by a fellow inmate due to
negligent supervision by the Department of Correctional Services at Elmira
Correctional Facility (Elmira). Trial of the matter was held in the Binghamton
District on June 23, 2009.
At trial, claimant testified that, around the date of the incident, he was
assigned as a “runner” for the “A-side” of mess hall 4
at Elmira. He said that meant that he would keep the food on the serving line
on one side of the mess hall stocked during meals. He said that he was
assaulted by a fellow inmate, Terry Hill, early in the evening on July 30, 2001.
Claimant was in the mess hall with two other workers at the time. Claimant was
sitting on the counter, as he and the other workers were waiting for meal time.
Claimant said that Hill came into the mess hall, approached him, and raised a
sharp instrument to stab him. Claimant said he jumped back, and Hill stabbed
him in the leg with a long (eight to nine inches) metal rod. Claimant walked
from the mess hall to the guards’ “bubble” in the kitchen,
where he advised a correction officer that he had been stabbed. He was
subsequently taken by the officers for medical treatment.
Claimant stated that no correction officers were in the mess hall when he was
assaulted, and that the nearest guards were in the bubble. He testified that it
was approximately 80 feet from where he was sitting in the mess hall to the
bubble, and it took him 30 to 45 seconds to travel that distance.
Claimant testified that he only had contact with Hill twice prior to the time
he was stabbed. The first incident took place four to five days prior to the
stabbing, when Hill (who was serving food on the other, or B-side, of mess hall
4) told claimant to restock some food for him.
Claimant refused, and advised Hill that he had his own runner and claimant was
working on the A-side of the mess hall.
Claimant then stated that a day or two after that, he heard that Hill was
talking about him. He said he approached Hill and asked if there was a problem,
and Hill replied that there was not. Claimant said he walked away without
further comment. Claimant said he did not think Hill was a danger to him,
either at the time he confronted Hill or on the day when he was stabbed. He did
not anticipate any problems as a result of their conversations, nor did he
advise any correction officers about the incidents, because “it
wasn’t about anything.”
he was surprised when Hill stabbed him.
Correction Officer Pariso testified on claimant’s behalf. He said he did
have an independent recollection of the incident. He said he was seated at an
officer’s desk in the kitchen when claimant approached him and advised
that he had been stabbed. He described the layout of the mess halls and kitchen
area, indicating that the kitchen was behind all four mess halls, and there were
four hallways leading from the kitchen to the four different mess halls. He
stated that there was not a surveillance camera at the officer’s desk
where he was seated. He did not recall whether any other correction officers
were nearby when claimant approached him, nor did he know whether any officers
were in mess hall 4 when claimant was stabbed. Pariso also said he did not know
whether he could see the location where claimant was stabbed from where he was
seated, as he had not conducted the investigation into the incident, and
therefore did not know the area where claimant was assaulted. Finally, Pariso
stated that there was no rule requiring inmates to be personally supervised
during cleanup in the mess halls.
During the course of Pariso’s testimony, claimant’s counsel sought
to introduce the transcript of Hill’s disciplinary hearing pertaining to
the incident. The transcript reveals that Hill admitted stabbing claimant, and
said that he did it because claimant owed him five packs of cigarettes. Hill
stated that he had been incarcerated three times prior to his current bid, and
he had stabbed one or more inmates in the
Counsel for defendant objected on the
grounds that he was not present at the hearing to cross-examine Hill regarding
his testimony. He also noted that Hill had a sentence of 25 years to life, and
that any stabbing he might have committed could have taken place in the
1970’s, or might have occurred in self-defense. Finally, he argued that
Hill might have had varying motivations in stating that he had stabbed one or
more inmates, rendering that testimony suspect. The Court denies
defendant’s objection and admits the document as Claimant’s Exhibit
1. In inmate-on-inmate assaults, evidence of an assailant’s prior
misbehavior, particularly similar assaultive or violent behavior and the
circumstances surrounding that conduct, is not only relevant but material and
necessary to prosecute a claim for negligence against the State (Wilson v
State of New York
, 36 AD2d 559 ; Serrano v State of New York
Ct Cl, Dec. 28, 2006, Midey, J., Claim No. 112135, Motion No. M-71889 [UID #
Claimant rested his case at the close of Correction Officer Pariso’s
testimony. Defendant moved to dismiss the claim for failure to establish a
prima facie case and, in particular, for failure to show that the incident was
reasonably foreseeable, upon which motion the Court reserved decision.
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
). 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
). 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
; see also Flaherty v State of New York, 296 NY 342
In Sanchez v State of New York (supra at 255-256), the Court of
Finally, 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
Claimant himself testified that he did not know an attack was pending, or that
he was in danger from Hill prior to the assault. Claimant indicated that he did
not tell any correction officers about his prior discussion with Hill, because
he did not think Hill was a danger to him.
Claimant has not shown the element of notice of foreseeability of harm necessary
to prove his claim.
Claimant further implicitly contended that if correction officers had been
physically present in the room at the time, the attack could have been
prevented. Obviously, this argument is merely speculative, and there is no
guarantee that the attack could have been prevented if a correction officer had
The absence of a correction officer in the mess hall is insufficient to support
a finding of negligence in and of itself, without a showing of foreseeability.
Because claimant did not meet his burden of proof regarding foreseeability, the
claim must be dismissed.
Defendant’s motion to dismiss is hereby granted, and all other motions
upon which the Court previously reserved or which were not previously determined
at trial are denied.
Let judgment be entered accordingly.