Opinion
# 2014-031-508 Claim No. 116494
12-16-2014
KELLY SANTOS v. THE STATE OF NEW YORK
KELLY SANTOS, PRO SE HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: RAY A. KYLES, ESQ. Assistant Attorney General
Synopsis
Claimant failed to show that assault upon him by cell mate was reasonably foreseeable, or occurred due to negligence on Defendant's part. Claim dismissed.
Case information
| UID: | 2014-031-508 |
| Claimant(s): | KELLY SANTOS |
| Claimant short name: | SANTOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116494 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | RENÉE FORGENSI MINARIK |
| Claimant's attorney: | KELLY SANTOS, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: RAY A. KYLES, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 16, 2014 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Kelly Santos filed claim number 116494 on March 3, 2009, alleging that Defendant negligently failed to prevent an assault upon him by a fellow inmate at Five Points Correctional Facility. I conducted the video-assisted trial of this matter on September 22, 2014. In support of his claim, Claimant testified that on December 27, 2008, he was assaulted by his cell mate, an inmate Davis. Claimant stated that Davis was placed in his cell on December 10, 2008 and that they immediately had issues because inmate Davis insisted on smoking in the cell. Claimant stated that he complained verbally to the guards near his cell and that he also wrote two letters saying that he was having issues with Davis and wanted to be moved to a different cell.
Claimant stated that on December 27, 2008, without warning or provocation on his part, Mr. Davis assaulted him. Claimant went on to state that Mr. Davis bit his finger and drew blood. Claimant was given antibiotics and pain medication. He testified that, although his finger has healed, he is left with scars and numbness.
Importantly, Claimant candidly conceded during his testimony that the assault was unexpected and that, although he had been arguing with his cell mate about the smoking, he did not anticipate that he would be assaulted.
The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (Flaherty v State of New York, 296 NY 342 [1947]), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329 [3d Dept 1986]; Sebastiano v State of New York, 112 AD2d 562 [3d Dept 1985]). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914 [4th Dept 1990], lv denied 76 NY2d 711 [1990]; Casella v State of New York, 121 AD2d 495 [2d Dept 1986]), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]; Van Barneveld v State of New York, 35 AD2d 900 [3d Dept 1970]). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650 [3d Dept 1981]). In Sanchez v State of New York (99 NY2d 247 [2002]), the Court of Appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.
In this case, Claimant alleges that the assault was foreseeable because he told Defendant, both verbally and in writing, that he was having problems with Mr. Davis because he was smoking in the cell. I find that this information, without more, does not give rise to liability. Claimant's requests to be reassigned because he did not like his cell mate's smoking were far too generalized, and lacked the specificity necessary to put Defendant on notice that Claimant was in physical danger. As this Court stated in Mercer v State of New York (Ct Cl, Corbett, J., Jul. 22, 1996), "[L]iability may be based either on defendant's failure to protect claimant from a known dangerous prisoner or to use adequate supervision to stop that which was foreseeable in an immediate or proximate sense, rather than in some generalized way" (see also Spadaro v State of New York, 38 Misc 2d 489 [Ct Cl 1963], affd 28 AD2d 604 [1967]).
Neither Claimant nor Defendant had notice that a dangerous situation existed prior to the assault. In fact, Claimant testified that the assault surprised him. Absent such notice, unremitting supervision was unnecessary (see Hirsh v State of New York, 8 NY2d 125 [1960]; Padgett v State of New York, 163 AD2d 914; Carlino v State of New York, 30 AD2d 987 [3d Dept 1968]). I find, therefore, that Claimant has failed to demonstrate that the assault was reasonably foreseeable or that Defendant was negligent in failing to protect him from the unexpected and unprovoked assault.
Accordingly, Claim No. 116494 is hereby DISMISSED.
Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 16, 2014
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims