Skip navigation
× You have 2 more free articles available this month. Subscribe today.

New York Prisoner's Assault Claim Headed for Trial

New York's Court of Appeals, its highest court, has held prisoner Francisco Sanchez's state tort lawsuit alleging negligent supervision against the state of New York raises an issue of whether an assault on Sanchez was foreseeable. The Court of Claims granted the State's motion for summary judgment on grounds the attack was unforeseeable as a matter of law. The Appellate Division affirmed.

The essential facts are undisputed. Sanchez and a civilian teach night classes on Latino culture at the Elmira Correctional Facility (ECF). Sanchez is required to clean up his classroom and stand outside the doorway awaiting inspection and release by the duty guard. The school's corridors, which are 60 feet long, were occupied by 101 prisoners. Without warning, Sanchez was punched and slashed across his face from behind with a razor-like instrument, causing a wound that required 40 stitches. At the time of the attack, which lasted less than 20 seconds, the guard was at the storage room on the opposite end of the corridor; he was supervising prisoners returning television sets and equipment. Within a minute of the attack, the guard came to Sanchez's aid. Sanchez testified he was completely surprised by the attack, and he had no reason to believe he was going to be attacked.

Sanchez's response contained an affidavit from an expert witness. The witness testified the State failed to provide active supervision on the night of the attack. The prisoners were in a congregate setting outside the housing area, which is a "notorious time" for prisoner-on-prisoner assaults. State Standards for County Jails and Penitentiaries require guards to maintain in such a setting "active supervision," which consists of the "uninterrupted ability to communicate orally with each prisoner and respond to emergency situations." Further, the expert asserted the guard's habitual practice of going to the storeroom during "go-back," while requiring certain prisoners (like Sanchez) to remain in front of their classrooms awaiting discharge, places those prisoners at a risk of harm of assault. The State disputed none of the assertions.

The State asserted, however, that it had no liability, for it did not actually know Sanchez was vulnerable to assault or the particular assailant was dangerous, or the state actually knew the attack was about to take place and it failed to intervene. The Court of Claims and Appellate Division held this is the test to be applied, and Sanchez's testimony demonstrates no liability is assumed by the State. The Court of Appeals held the proper test of foreseeability is if the State knew-or-should-have known of the risk.

The record shows ECF is a maximum-security prison that has a heightened risk of assault to prisoners when they are in a congregate setting. Thus, a jury could conclude the State could reasonably foresee the risk to Sanchez absent "active supervision" at the time of the assault. Accordingly, the grant of summary judgment in the State's favor was reversed. Readers should note that this standard of proof is much lower than the "deliberate indifference" test used under the Eighth Amendment in federal court. See: Sanchez v. New York, 754 N.Y.S.2d 621 (N.Y., 2002).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Sanchez v. New York

[56] Consistent with this Court's jurisprudence in inadequate supervision cases, the Appellate Divisions generally have applied a duty rule that recognizes the unique nature of prison settings and the special security and institutional concerns attendant to operating such facilities. Our courts have long applied this rule, effectively holding that the State does not breach the duty of reasonable care it owes to inmates unless the assault was foreseeable, that is the State knew or had reason to know of an unreasonable risk of an inmate-on-inmate attack yet failed to take appropriate action to ameliorate the risk or to assist the inmate once the attack was underway (see e.g. Blake v State of New York, 259 AD2d 878 [1999]; Littlejohn v State of New York, 218 AD2d 833 [1995]; Colon v State of New York, 209 AD2d 842 [1994]; Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711 [1990]). The notice requirement accounts for the fact that it is impossible to eradicate all risks of violence within a prison setting as long as inmates are allowed contact with one another. *fn8 In light of this reality, although the State certainly aspires to eradicate all threats of prison violence facing inmates and corrections officers, it should be liable in (*18)tort only when it fails to appropriately address unreasonable risks of attack of which it is or should be aware. Such a rule is necessary to avoid imposing insurer-like liability on the State for the criminal acts of inmates.

[57] We agree with the majority that the rule articulated by the Appellate Division in this case too narrowly defined the types of proof that would suffice to raise an issue of fact concerning foreseeability. The court recognized three situations: (1) where the State knew that the victim was at risk of assault; (2) where the assailant was known to be dangerous; or (3) where the State was aware of an attack but failed to appropriately intervene to assist and protect the victim. *fn9 While these circumstances are certainly the most common means by which actual or constructive notice is established, the list is incomplete; other types of proof would also raise a question of fact. For example, an inmate might establish foreseeability by offering proof that there were a number of prior attacks in a certain location in a facility, indicating an unreasonable risk of harm particular to that place, or by demonstrating that the authorities received threats or were aware -- or should have been aware -- of other indicia of unrest prior to a certain event or program which ultimately culminated in violence. (*19) Just because the foreseeability factors were described too restrictively, it does not follow that the Appellate Division erred in dismissing the claim in this case. Not only did Sanchez fail to offer any proof with respect to the three most common circumstances relating to foreseeability, he failed to offer any other proof from which a reasonable jury could infer the State knew or should have known that there was an unreasonable risk of violence.

[58] Sanchez stated in his deposition that the attack came as a total surprise to him. He did not realize he had any enemies and nothing had occurred during the evening program which alerted him to a danger of attack. In support of his motion for summary judgment, Sanchez did not submit any evidence that attacks had occurred at this location in the past or even that violent incidents had previously occurred at the conclusion of evening programming. Similarly, although he included an affidavit from a penological expert who asserted generally that "assembly times are notorious periods for the occurrence of inmate-on-inmate assaults," no evidence was proffered that there is an elevated risk of violence among inmates after special programming classes. The expert's conclusory statements did not even allege the existence of an enhanced risk during assembly periods at the Elmira Correctional Facility in particular or even in New York Department of Correctional Services prisons in general. In sum, no evidence was submitted which would distinguish the circumstances leading up to this attack from those present every day at any correctional facility in New York State. If an inmate can establish a question of fact concerning the foreseeability of a criminal attack on these facts, the foreseeability requirement has effectively been eviscerated from the duty equation.

[59] (*20) The majority focuses on the expert's general allegations of breach of duty -- a separate element of the negligence claim. The penological expert asserted, in conclusory fashion, that the officer failed to "actively supervise" Sanchez as required by State Commission of Correction rules *fn10 and contended that one officer was insufficient to supervise the number of inmates present for evening programming. But the adequacy of supervision in a given situation cannot be assessed in a vacuum -- it must be correlated with an existing unreasonable risk of harm which the supervision is intended to ameliorate. Unless this Court is prepared to say that (*21)supervision must be constant and unremitting -- something it has expressly declined to do in analogous circumstances -- liability cannot be predicated on the mere fact that the officer could not see claimant at the time of the attack but was supervising other inmates who were returning equipment to a nearby storeroom. The officer in question in this case did not abandon his post -- he was attending to a legitimate security function when the assault occurred. In the absence of evidence that there was a particular danger of inmate violence of which the State was or should have been aware, the fact that the officer did not keep Sanchez under constant surveillance simply should not give rise to liability.

[60] In conclusion, we cannot countenance this expansion of State liability for personal injuries caused by the criminal acts of inmates. Nor can we ignore the anomaly created by the majority's holding, which allows this claimant to proceed to trial in circumstances where a school child or hospital patient who was the victim of a similar sudden attack would be foreclosed from doing so.

[61] Order modified, without costs, by denying the State's motion for summary judgment and, as so modified, affirmed.

[62] Opinion by Chief Judge Kaye. Judges Smith, Levine, Ciparick and Rosenblatt concur. Judge Graffeo dissents and votes to affirm the granting of the State's motion for summary judgment in an opinion in which Judge Wesley concurs.

Opinion Footnotes

[63] *fn1 Whether five dozen or eight dozen inmates were congregated in the area (see dissent, at 2, n 1) is not material to our conclusion. The "master call-out sheet" (annexed to the affirmation on summary judgment) lists well over 100 inmates signed up and authorized to attend classes that evening (see also 288 AD2d 647). The number 60 was Sanchez's guesstimate. The number of inmates gathered together outside their housing unit when claimant was attacked was, in any event, large.

[64] *fn2 The State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries require that when prisoners are participating in activities outside housing areas, the responsible staff shall maintain "active supervision," which consists of the "uninterrupted ability to communicate orally with and respond to each prisoner * * * [and] the ability * * * to immediately respond to emergency situations" (9 NYCRR 7003.2, 7003.4). Although these regulations apply to county jails and penitentiaries, not State prisons, the expert concluded that they are relevant in establishing a reasonable standard of supervision, and they are thus also relevant to our foreseeability analysis.

[65] *fn3 Sebastian v State of New York, (93 NY2d 790 [1999]) in no way undermines Flaherty's holding that, in its operation of prisons, the State owes the same duty of reasonable care as any other party (dissent, at n 3). Sebastian addressed an entirely different situation: whether, absent a special relationship, the State can be liable to a private party injured by a juvenile who escaped from a detention facility. Here -- just as in Flaherty -- the injured party was in the State's custody.

[66] *fn4 We all agree that "liability cannot be predicated on the mere fact that the officer could not see claimant at the time of attack * * *" (dissent, at 12). That is not the issue in this case.

[67] *fn5 Although Sanchez's expert was asked to assume that there were approximately 100 students in attendance, this assumption is not substantiated by record proof in evidentiary form. Sanchez testified at his deposition that there were about 60 inmates in the vicinity. Although Sanchez referenced a call-out sheet in his attorneys' affidavits which apparently would indicate that, if every inmate who participated in programming had attended that evening, the total would approximate 100, that document is not in the record. Accordingly, the only admissible proof is Sanchez' statement that 60 inmates were present that evening.

[68] *fn6 Sanchez's expert assumed that inmates attending evening programming did not have to pass through a metal detector. The only admissible evidence in the record is to the contrary. The correction officer who supervised the area unequivocally stated that inmates had to pass through metal detectors before they were allowed access to the school building area. Sanchez did not contradict this testimony and no other evidence from any party with a basis of knowledge supports the expert's assumption.

[69] *fn7 In Flaherty the State's duty was likened to that of any other party, but this Court has since recognized that, insofar as it manages facilities which house inmates for the protection of the public, the State is not like other litigants. In Sebastian v State of New York (93 NY2d 790 [1999]), the Court held that the State's supervision of a juvenile incarcerated at a Division for Youth facility was a quintessentially governmental function for which the State was protected by broader immunity than a private litigant would enjoy. This conclusion was fortified by policy considerations, including the possibility that imposing tort liability would interfere with the State's pursuit of rehabilitation as a goal and would instead lead to more restrictive custodial supervision of facility inmates to reduce the risk of liability. Although the State has not argued here that it is immune from suit, many of the policy concerns underlying the immunity cases inform our conclusion in this case.

[70] *fn8 While tort liability is often used as a tool to deter misconduct in other settings, it is an ineffectual instrument for addressing the delicate security and other interests which authorities must assess in determining the appropriate degree of autonomy within the prison setting to provide inmates like Sanchez who have behaved well-enough to earn the privilege of attending evening programming. Prison officials are faced with the unenviable task of balancing the risk of inmate attack arising from contact between inmates against the significant role such interactions play in maintaining inmate morale and, in some cases, furthering the important goal of rehabilitation.

[71] *fn9 The majority in this Court characterizes these categories as requiring proof of actual notice in every case. We disagree. Certainly, authorities would be on actual notice if they received information regarding a threat that a specific inmate would be attacked at a certain time or place. However, proof that a particular inmate was vulnerable because he was about to be transferred or had been attacked or targeted for violence in the past, for example, would constitute only constructive notice of a risk of attack, yet it would fulfill the first circumstance identified by the Appellate Division as a basis for liability (see e.g., Sebastiano v State of New York, 112 AD2d 562 [1985]).

[72] *fn10 As the expert acknowledged, the rules were not promulgated by the Department of Correctional Services, the agency which operates the State prison system, and apply only to County jails. Even if the rules applied to this correctional facility, they do not mandate either constant visual surveillance of inmates or the continuous occupation of a security desk in any area other than a facility housing area. Indeed, beyond the requirement that security posts in housing areas be manned at all times --irrelevant here since the attack did not occur in a housing area -- "active supervision" involves maintaining an uninterrupted ability to communicate orally with and respond to each prisoner, visually observing each prisoner at least once every 30-minute interval and being able to immediately respond to emergency situations (9 NYCRR 7003.2[c], 7003.4[a]). Even viewing the facts in the light most favorable to claimant, he failed to allege a lack of "active supervision" here since it is undisputed that the correction officer was always in a position to communicate orally with Sanchez, his visual contact was only interrupted for a brief period, and the officer immediately responded to Sanchez' cries for help. 9 NYCRR 7003.3, which applies by its terms solely to "supervision of prisoners in facility housing areas" similarly provides no basis for imposing liability here.