The State, however, is not an insurer of the safety of inmates, and the mere fact that an assault occurs does not give rise to an inference of negligence ( Sebastiano v. State of New York , 112 AD2d 562 [3d Dept 1985] ). In fact, even the total absence of a prison guard in the area of an assault is insufficient to establish liability, absent a showing that the State had notice of a dangerous situation (Padgett v. State of New York , 163 AD2d 914 [4th Dept 1990], lv denied 76 NY2d 711 [1990] ). In order to establish liability, Claimant must allege and prove that the State knew or should have known that there was a risk of harm to Claimant which was reasonably foreseeable and which the State could have prevented ( Sanchez v. State of New York , 99 NY2d 247 [2002] ; Melvin v. State of New York , 101 AD3d 1654 [4th Dept 2012] ).
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]).
The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (Flaherty v State of New York, 296 NY 342) including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 767 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and had 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).
The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (Flaherty v State of New York, 296 NY 342) including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 767 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and had 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).
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 (seee.g. Blake v. State of New York, 259 A.D.2d 878; Littlejohn v. State of New York, 218 A.D.2d 833; Colon v. State of New York, 209 A.D.2d 842; Padgett v. State of New York, 163 A.D.2d 914, lv denied 76 N.Y.2d 711). 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. 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 tort only when it fails to appropriately address unreasonable risks of attack of which it is or should be aware.
Claimant was then assaulted. There is no record evidence to establish that prison officials were aware of a risk of harm to claimant posed by the three Attica inmates and, similarly, there is no evidence that the State should have foreseen the assault upon claimant (see Melvin v. State of New York, 101 A.D.3d 1654, 1654–1655, 956 N.Y.S.2d 376 ; Vasquez v. State of New York, 68 A.D.3d 1275, 1276–1277, 890 N.Y.S.2d 184 ; Padgett v. State of New York, 163 A.D.2d 914, 914–915, 558 N.Y.S.2d 433, lv. denied 76 N.Y.2d 711, 563 N.Y.S.2d 767, 565 N.E.2d 516 ).It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the claim is dismissed.
We conclude upon our review of the record that the court's verdict was not based on a fair interpretation of the evidence (see generally Farace v State of New York, 266 AD2d 870, 870). The State's duty to safeguard inmates "is limited to risks of harm that are reasonably foreseeable" (Sanchez v State of New York, 99 NY2d 247, 253; see Melvin v State of New York, 101 AD3d 1654, 1654-1655; Padgett v State of New York, 163 AD2d 914, 914, lv denied 76 NY2d 711), and we conclude that claimant failed to demonstrate that the State did not provide adequate supervision to prevent a risk of harm that was reasonably foreseeable (see generally Sanchez v State of New York, 36 AD3d 1065, 1067, lv denied 8 NY3d 815; Harris v City of New York, 28 AD3d 223, 223, lv denied 7 NY3d 704). Here, the evidence established that there was no history of violence between the two inmates and no indication that the other inmate posed a threat to claimant (see Melvin, 101 AD3d at 1655; Vasquez v State of New York, 68 AD3d 1275, 1276).
We affirm. "While the State's duty to an inmate encompasses protection from the foreseeable risk of harm at the hands of other prisoners" ( Codrington v State of New York, 19 AD3d 443, 443; see Dunn v State of New York, 29 NY2d 313, 317), "the State is not an insurer of an inmate's safety" ( Codrington v State of New York, 19 AD3d at 443; see Wilson v State of New York, 303 AD2d 678; Padgett v State of New York, 163 AD2d 914). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" ( Codrington v State of New York, 19 AD3d at 444; see Kalem v State of New York, 213 AD2d 515). We agree with the Court of Claims that the claimant failed to establish any negligence on the part of the State.
We affirm. While the State's duty to an inmate encompasses protection from the foreseeable risk of harm at the hands of other prisoners (see Dunn v. State of New York, 29 N.Y.2d 313, 317), the State is not an insurer of an inmate's safety (see Padgett v. State of New York, 163 A.D.2d 914). The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable (see Kalem v. State of New York, 213 A.D.2d 515). We find that the Court of Claims' determination was supported by the evidence.
Absent such specific notice to the State of the above factors, "unremitting supervision * * * was unnecessary" (Colon v. State of New York, supra, at 844). Indeed, even the total absence of any guard within the area at the time of the incident would be insufficient to impose liability, absent a showing that prison officials had notice of "an especially dangerous situation" (Padgett v. State of New York, 163 A.D.2d 914, 915, lv denied 76 N.Y.2d 711). Claimant cites Sebastiano v. State of New York ( 112 A.D.2d 562),Littlejohn v. State of New York ( 218 A.D.2d 833, supra) and Blake v. State of New York ( 259 A.D.2d 878) as support for his theory of negligence on the part of the State. Such reliance is misplaced.