89 A.D.2d 811 | N.Y. App. Div. | 1982
Judgment unanimously affirmed, with costs. Memorandum: Claimants, husband and wife, have recovered an award for damages sustained because of the State’s negligence when the claimant wife, a student counselor from the State University at Buffalo, was working in the Attica Mental Health Unit and was raped by a prisoner client during a counseling session. On this appeal the State does not question the Court of Claims finding that claimant wife was free of fault or the amount of the damages awarded. It contends only that the State was not negligent because the risk of rape to a counselor in the mental health unit was unforeseeable. The record clearly demonstrates otherwise. Attica is a maximum security prison, of course, and all the prisoners may be assumed to be dangerous. The rapist in this case was a multiple felon with a 12-year history of violent crimes. Clearly the danger inherent in private counseling was foreseeable and the State recognized it by providing a guard in the mental health unit. That the violence might include rape was also foreseeable for, as the evidence established, the claimant’s school advisor warned claimant not to dress provocatively and the nurse supervising the mental health unit testified that she warned claimant, as she did all students, that violence and specifically rape was a danger while they were in the mental health unit. The court’s finding that the State had a duty to protect claimant from this foreseeable risk and that it failed in the reasonable performance of that duty is supported by the evidence. (Appeal from judgment of Court of Claims, Quigley, J. — negligence.) Present — Simons, J. P., Hancock, Jr., Callahan, Doerr and Denman, JJ.
