New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2009-044-014, Claim No. 107033


Claim for inmate-on-inmate assault dismissed due to failure to prove that the incident was foreseeable.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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.”[1] He said 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 that

he had stabbed one or more inmates in the past.[2] 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 [1971]; Serrano v State of New York, Ct Cl, Dec. 28, 2006, Midey, J., Claim No. 112135, Motion No. M-71889 [UID # 2006-009-080]).[3]

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 [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]).

In Sanchez v State of New York (supra at 255-256), the Court of Appeals stated:
[T]he State owes a duty of care to inmates for foreseeable risks of harm; and that foreseeability is defined not simply by actual notice but by actual or constructive notice – by what the “State knew or had reason to know,” . . . what the State “is or should be aware” 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

(citations omitted).

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 been present.

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.

July 21, 2009
Binghamton, New York

Judge of the Court of Claims

[1]. All quotes are taken from the Court's recording of the proceedings.

[2]. The pertinent portion of the transcript is:

[Hearing Officer]: is that how you operated when you were doing bids then? I mean, I understand this is prison.

[Hill]: Yea.

[Hearing Officer]: You stabbed a few people then?

[Hill]: Yea.

[Hearing Officer]: Did you get convicted of it?

[Hill]: Yes.
(Claimant’s Exhibit 1 at 3).
[3]. The Court notes, however, that the bases for defendant’s counsel’s objection are highly pertinent to the weight to be given this evidence. The Court gave little to no weight to Hill’s statement that he had stabbed one or more inmates in the past, given the total lack of detail concerning when such an incident might have happened and the circumstances surrounding any such assault, as well as the clear questions regarding both Hill’s credibility and his motivation in making the statement.