The Third Department, reversing Supreme Court, determined there was question of fact whether the county defendants were negligent in failing to determine whether an inmate was violent. Plaintiff was assaulted by the inmate and alleged the county should have reviewed the inmate’s past record of violent behavior:
“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the [s]tate [or its political subdivisions] owe[] a duty of care to safeguard inmates, even from attacks by fellow inmates” … . This duty of care does not render the custodial entity “an insurer of inmate safety[,] and negligence cannot be inferred merely because an incident occurred” … . The duty owed is instead “limited to providing reasonable care to protect inmates from risks of harm that are reasonably foreseeable, i.e., those that [the custodial entity or its agents] knew or should have known” … . * * *
Correction Law § 500-b (7) (a) states that the reviewing officer “shall exercise good judgment and discretion and shall take all reasonable steps to ensure that the assignment of persons to facility housing units” advances the safety and security of all inmates and that of the facility in general. The statute enumerates a number of factors to consider in that analysis, but an inmate’s history of assaultive behavior or his or her prior prison disciplinary history are not among them … . The statute further lacks a specific requirement that the reviewing officer obtain all records pertaining to an inmate, instead directing a review of whatever “relevant and known” records are “accessible and available” (Correction Law § 500-b [7] [c] [3]). The statute accordingly creates a “possibility of exceptions . . . significant enough to justify a case-by-case determination of negligence without the automatic imposition of negligence under the negligence per se doctrine,” although a failure to obtain specific records could well constitute evidence of negligence in a given case … . Wassmann v County of Ulster, 2016 NY Slip Op 07907, 3rd Dept 11-23-16
MUNICIPAL LAW (INMATES, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)/NEGLIGENCE (MUNICIPAL LAW, INMATES, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)/INMATES (MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)/ASSAULT (MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)