New York State Court of Claims

New York State Court of Claims
ROSS v. STATE OF NEW YORK, # 2019-038-114, Claim No. 125300


Case information

UID: 2019-038-114
Claimant(s): KENNETH ROSS
Claimant short name: ROSS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125300
Motion number(s):
Cross-motion number(s):
Claimant's attorney: KENNETH ROSS, Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 22, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for damages he suffered as a result of being assaulted by another inmate at Green Haven Correctional Facility (CF) on January 1, 2014. The trial of this claim was conducted by videoconference on October 31, 2019, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Albany, New York. Claimant presented his own testimony; defendant called no witnesses. One exhibit offered by defendant was received into evidence; claimant did not offer any exhibits for receipt into evidence. After listening to and observing claimant's demeanor as he testified, and upon consideration of his testimony and all the other evidence received at trial, the applicable law, and the arguments of the parties at trial, the Court concludes that claimant's assault was not foreseeable and thus defendant is not liable to claimant.


Claimant testified that at approximately 8:00 a.m. on January 1, 2014, the door to his cell at Green Haven CF unexpectedly opened. Claimant testified that he got dressed, exited his cell, and proceeded to walk to the control center to inquire why his cell was opened. Claimant testified that as he walked to the control center, he was approached by another inmate, who took claimant's cane out of his hand and struck him over his head.(1) Claimant testified that his assailant, who was in keeplock status and was on his way to the shower when the assault took place, had no correction officer escorting him, notwithstanding that inmates on keeplock status

are required to be escorted by a correction officer while out of their cells. Claimant testified that the assault was sudden and unprovoked, that he had not previously had any problems with the assailant, and that he did not know why his assailant had assaulted him. Claimant testified that a correction officer found claimant on the floor bleeding from his head after the assault and that claimant was escorted to the infirmary and then the hospital, where he received staples to close his head wounds.


At the conclusion of claimant's case, defendant moved to dismiss the claim on the ground that claimant had failed to proffer any evidence that the random and unprovoked assault was foreseeable. In opposition, claimant argued that the assault was foreseeable because his assailant should have been escorted by a correction officer at the time of the assault. Defendant renewed its motion to dismiss at the conclusion of its own case. The Court reserved decision on the motions.

"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, 252-253 [2002]). Where a claimant proves that he has been attacked by an inmate, he must also prove that the State breached its duty of care to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985]; see Sanchez, 99 NY2d at 253; Flaherty v State of New York, 296 NY 342, 346 [1947]; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]). In other words, there is no duty to protect an inmate from unforeseeable attacks, because such a duty would improperly "render the State an insurer of inmate safety" (Sanchez 99 NY2d at 253). In the context of inmate-on-inmate assaults, foreseeability rests upon a determination of what the State actually knew, as well as what it should have reasonably known about the risk of an attack on the claimant (see id., at 254; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be found to have been foreseeable where defendant knew or reasonably should have known that the claimant was at risk of being attacked, that the assailant was prone to perpetrate attacks, that there was a history of conflict between the claimant and the attacker, or that, based upon the correction facility's prior experience and expertise, a particular class of inmates or a particular location within a facility may present a risk of attack (see Sanchez, 99 NY2d at 254-255; Vasquez, 68 AD3d at 1276; Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]; Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 843-844 [3d Dept 1994]; Evans v State of New York, 11 Misc 3d 1065[A], 2006 NY Slip Op 50391[U], *6 [Ct Cl 2006]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Pursel v State of New York, 226 AD2d 872, 873 [3d Dept 1996]; Heatley v State of New York, 30 Misc 3d 1202[A], 2010 NY Slip Op 52248[U], *4 [Ct Cl 2010]; Vasquez v State of New York, 16 Misc 3d 1116[A], 2007 NY Slip Op 51442[U], *6 [Ct Cl 2007]).

Claimant's argument in support of liability rests upon his assertion that his unsupervised assailant was required to have been escorted by a correction officer at the time of the assault. However, the "State's duty to prisoners does not mandate unremitting surveillance in all circumstances" (Sanchez, 99 NY2d at 256; see also Colon, 209 AD2d at 844), and "liability cannot be predicated on the mere fact that [an] officer could not see claimant at the time of the attack" (Sanchez, 99 NY2d at 255, 263; Vasquez, 68 AD3d at 1276). Even assuming that claimant's unsupervised assailant was required by virtue of his keeplock status to have been escorted by a correction officer at the time of the assault, such a violation, standing alone, does not establish defendant's liability. Claimant adduced no evidence at trial that unsupervised inmates in keeplock status were prone to perpetrate attacks on other inmates while out of their cells, such that correctional authorities knew or should have known of the risk of attack. Further, no evidence was offered to establish that claimant was specifically at risk of attack or that claimant's assailant was prone to perpetrate an attack, nor was there any evidence offered that claimant and his assailant had a prior history of conflict between them (cf. Blake v State of New York, 259 AD2d 878, 879 [3d Dept 1999] [finding of liability against the State for an inmate-on-inmate assault upheld where evidence was adduced at trial that the assailant had recently assaulted another inmate in the same location and that facility procedures were inadequate to prevent similar assaults]). Accordingly, claimant has not established by a preponderance of the credible evidence that this unprovoked and sudden assault was reasonably foreseeable, and thus, defendant will not be held liable for the injuries claimant sustained.


Claimant has failed to prove by a preponderance of the credible evidence that the January 1, 2014 assault was reasonably foreseeable. Thus, claim number 125300 is hereby DISMISSED. Any motions not previously ruled upon are hereby DENIED.

The Chief Clerk is directed to enter judgment accordingly.

November 22, 2019

Saratoga Springs, New York


Judge of the Court of Claims

1. Documentation compiled after the assault indicates that claimant accused inmate Hankerson of assaulting him (see Defendant's Exhibit A [1/1/14 Log Book, 8:30 a.m. entry; 1/1/14 Kelly Memorandum; 1/1/14 Hayden Memorandum; 1/1/14 Voluntary Protective Custody Consideration Form]).