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CLAIMANT-INMATE WAS SEXUALLY ASSAULTED IN HER CUBICLE IN A DORMITORY WITHOUT DOORS WHILE THE CORRECTION OFFICER (CO) GUARDING THE DORMITORY WAS ASLEEP; CLAIMANT PRESENTED ADEQUATE PROOF THE ASSAULT WAS FORESEEABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined claimant-inmate in this negligent supervision action presented sufficient proof the sexual assault by another inmate was foreseeable. Claimant was in a dormitory with cubicles and no doors. A male inmate crawled into claimant’s cubicle when the correction officer (CO) guarding dormitory was asleep:

… [T]he question is not what the State actually knows, but what it should have known, i.e., whether defendant has constructive notice … . There was a preponderance of evidence that defendant was aware that this claimant was at risk of sexual assault because defendant’s own sexual victimization risk screening procedures, and placement in the 10-1 dorm’s PREA cube as a result of her complaints about harassment immediately before the sexual assault, identified her as being in a class of individuals vulnerable to the risk of sexual assault … . Moreover, placement in the PREA cube generally, and in this case specifically, is a tacit acknowledgement that individuals who are identified as vulnerable and live in a general population dormitory consisting of a communal sleeping area, must have more protection at night. A sleeping CO negates this added protection at this critical time. Thus, it was not necessary for defendant to have notice that COs generally, or this CO specifically, slept during shifts. It is not unreasonable to expect that COs are conscious, alert and attentive while on duty monitoring an open-floor-plan dormitory of incarcerated individuals in a maximum-security prison. R.S. v State of New York, 2024 NY Slip Op 05253, Third Dept 10-24-24

Practice Point: Here there was sufficient proof that the sexual assault by another inmate was foreseeable. Claimant was recognized as vulnerable to sexual assault, was placed in a dormitory cubicle with no door, and the correction officer assigned to guard the dormitory was asleep. The fact that the CO’s falling asleep may not have been foreseeable was not the determinative issue.​

 

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