# FILED
July 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
CARL HA

NKS, ) ) Petitioner/Appellant, ) Claims Commission N o. 401858 ) VS. ) Appeal No. 02A01-9810-BC-

00295 ) STATE OF TENN ESSEE, ) ) Defendant/Appellee. )
APPEAL FROM THE CLAIMS CO MMISSION

OF TENNESSEE THE HONORABLE MARTHA BRASF IELD, COMMISSIONER

CARL HA

NKS, pro se Henning, Tennessee
PAUL G. SUMMERS Attorney

General & Reporter MICHAEL MOORE Solicitor General PAMELA S. LORCH Assistant A

ttorney General Nashville, Tennessee Attorneys for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. This appeal is brough t f rom the Claims Commission’s order dismissing the2

appellant’s petition. Petitioner, a Tennes see D epa rtment of Correction inmate, w as attacked b y anoth er inmate and sustained injuries as a result. Petitioner alleged in his complaint that

the Stat e of Ten nessee wa s negligen t in not pr oviding ad equate se curity. For the following reasons we affirm the Claims Commission’s order granting the State’s motion for summary judgment.

Carl Hanks, a ppella nt, is an inmate housed at the Lake C ounty Regional Correctional Facility (”Lake Coun ty”). The Lake County prison houses only minimum custody level inmates. The pris on is comprised of separate ph ysical unit s known as “guilds” in which the inmates ar e housed. At the time of the attack, Hanks was housed in Guild 3. Guilds 2 and 3 a re att ached by a connecting cor ridor, and they are g uarded by one security officer, w

ho rotates between the tw o guilds.
Billy Aldridge was another inmate who lived in Guild 3 at the time of the attack. Hanks and Aldridge were acquain ted as b oth had been housed as pretrail detainees in Shelby County in 1992. Al dr idge worked in the ki tchen in Guild 3. After arr iving at the Lak e County prison, Hanks and Aldridge had had some disag reements over the foo d service, the last of which had occur red on the evening of July 11, 1 9 94. These disagr eem ents were verbal in nature and had never come to blows. Moreover, Hanks stated in his deposition that on the evening of July 11, 1994,he and Aldridge talked and agreed to settle their differences. I t is undisputed that Hanks never complai ned to prison officials about Aldridge nor did he seek protective custody.
Followingbreakfast on the morning of July 12, 1994, Aldridge instruc ted Hanks to
come into the kitchen in Guild 3 to empty his food tray. Upon entry, Aldridg e threw a pan of hot grease on Hanks. Hanks sustained severe burns as a result of the attack. At the time of the attack, the security officer was in Guild 2.

On January 4, 19 95, Hanks fil ed a complaint with the Tennessee Cl aims Commission, naming the Stateas the defendant. Hanks alleged that the State was liable3

forthe attack because the State failed to provide adequate secur ity to protect him from attacks by other

inmates. Specifically, Hanks alleged that the State was negligent in only providing one security

officer for two guilds. On June 12, 1998, the State filed a motion for summary judgment, and on September 16, 1998, the Claims Co mmission entered an order granting summary judgment in favor of the State. Thereupon, Hanks filed a no tice of appeal on October 15, 1998, and the appeal is properlybefore this Court for consider ation.

The Court first turns its attention to an issue raised by the appellee, that is, w hether the notice of appeal was timely filed. The appellee claims that the Claims Commission’s final order was entered on September 14, 1998, but the notice of appeal was not filed until October 15, 1998, more than 30 days later

. Therefore, the State contends that the notice of appeal was not timely fil ed within 30 days as r equired by Rule 4 T.R. A.P.

Rule 58 T.R.C.P. sets forth the req uirements for entry of a judg ment, and it states in relevant part:

Entryof a judgment or an orde r of fina l disposit ion is ef fective when a judgment containing one of the following is marked on the face by the cler k as filed for entr y:

..... (3) the signature of the judge and a certificate of

the clerk that a copy has been served on all other parties or coun sel.
While the order was signe d by the Commissioner on September 14, 1998, theorder
was not “entered”under Rule 58 T.R.C.P. until September 16, 1998, when it w as marked
as “Filed” by the Cl aims Commission clerk. Therefore, the appellant ’s notice of appeal filed
on October 15, 1998, was filed within 30 days of entry of the judgment, and the appeal is timely. Rule 4 T.R.A.P.

The Court now turns its attention to the consideration of the appea l-in-c hief. On appeal, the appellant contends that the pr ison violated its ow

n policies an d post orders. After careful examination o f the pleadings filed below , we find that nowhere di d the appe llantever allege that the St ate, through its officers at the prison, violated its ow n operating policiesand post orders. Instead, the appellant alleged only that the State was4

negligent in not providing adeq uate security to protect the inmates

from attack. Under Rule 13(c) T.R.A.P., this Court may only consider those facts established by the evidence in the trial court and set forth i n the record.

No presumption of correctness attaches to decisions granting summary judgment because they involve onl y questions of law. Thus, on appeal, we must make a fresh determination concerning whether the requirements of Rule 56 T.R .C.P. have been met. Cowden v. Sovran Bank/Central South , 816 S.W.2d 741, 744 (Tenn. 1991).

We begin our analysis of the issue of summary judgment by noti ng that a motion for summary judgment should only be granted if the movant demonstr ates that there are no genuine issues of material fact and that th e moving party is entitled to judgment as a matter of law. Rule 56.03 T.R.C.P .; Byrd v. Hall , 847 S.W.2d 2 08, 210 (Tenn. 1993). The party mov

ing for summ ary ju dgment bears the burden of demonstrati ng that no genuine issues of material fact exi st. Byrd , 847 S.W.2d at 210. In Byrd , the Tennessee Supreme Court stated:

Once it is shown by the moving party

that there is no genuine issue of material fact, the n onmovin g party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact disput e to warrant a trial.(Citations o mitted). In this regard, Rule 56.05 provides tha

t th e nonm ov ing party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a g enuine issue of material fact for trial. Id. at 211. (Emphasis in original).
T.C.A. § 9-8-307(c) prov ides that “[T]he determination of the state’s liability in tort shall be based on the traditional tort concepts

of duty and the reasonably prudent person’s standard of care.” Therefore, the burden of proof is upon Hank s to esta blish that his injurieswere cause d by the ne gligence o f the Sta te. To do that, th e appella nt must p rove the following el ement s: (1) a duty of care owed by the State to the claimant; (2) conduct falling below the applicable st andard of care owed by the State to the claimant; (3) injury
or loss; (4) causation in fact and (5) proximate cause. Shouse v. Otis , 448 S.W.2d 673, 676 (Tenn. 1969); Hastings v. Smith , 443 S.W.2d 436, 438 (Tenn. 1969).5

In this case, there has been no showing that the State breached its duty to exercise ordinary and reasonable care. As established in Cockrum v. State , 843 S.W.2d 433, 436 (Tenn. App. 1992), prison officials are not insurers of a prisoner’s saf ety. In a case such
as this, the conduct of the prison officials must be com mensurate with the prisoner’s known condition. Id

. In Gillespie v. Metropolitan Govt. , No. 01A01-9109-CV-00317 (Tenn. Ct. App. Jan. 24, 1992), the Middle Section of this Court also held that penal institutions are not insurers of an inmate’s safety in regard to inmate-on-i nmate assaults.

The general rule is that pe nal institutions have a duty to us e reaso nable and ordinary ca re to prevent foreseeable attacks on inmates by other inmates. The penal institution breaches this duty when its authorities know ofor have reason to antici pate an attack and do not use reasonable care to preve nt it. Padgett v. State , 558 N.Y.S.2d 433, 434 (N.Y. App. Div.), appeal denied , 563 N.Y.S.2d 767 (1990); Spann v. State , 421 So.2d 1090, 1092, 1093 (Fla. Dist. Ct. App. 1982), petition for review denied , 430 So.2d 452 (Fla. 1983); Saunders v. State , 446 A.2d 748, 751 (R.I. 1982); Parker v. State , 282 So.2d 483, 486 (La.), cert. denied , 414 U.S. 1093, 94 S.Ct. 724 (1973 ); City of Le

xingto n v. Greenhow

, 451 S.W.2d 424, 425-26 (Ky.Ct.App. 1970); Generally speaking, there must be some prior notice of an attack. Gillespie, supra ; Harris v. State , 297 A.2d 561, 563 (N.J. 1972).

In light of the foregoing, w e find no breach of

the required duty of care on the part of the State. Hanks a d mitted in his deposition that he had not notified prison officials concerning the potential for attack from Aldridge: Q. Now, when these incidents or arguments or pr oblems woul d a rise between you and Mr. Al dridge going all the way back to the v ery beginning the first time you had a problem with him, have you gone to any guild officer or department

of correction officials to repor t it, or have you merely tr

ied to I’m just go ing to get it worked out between m e and the other guy? A. I never went to a correctional officer. Q. Okay. So you’ve never gone to anyone and asked for protective custody

-- A. No, sir. Q. -- from Mr. Aldridg e.6

A. No, sir. Q. You haven’t gone to any correctional officer and told on Mr. Aldridge -- A. No, sir. Q. -- or complained about hi m. A. No, sir. Q. Okay. So on the evening of July 11th when the incident occurs goin g through the chow line at supper involving the omele t, you just went

and sat down and ate. A. Yes, sir. Q. And you didn’t say anything to Mr. Aldr idge about it at the time. A. No, sir. Q. And you didn’t go to r eport what had happened to any correctional officer. A. No, sir. Hanks also testified that the guard had no notice that Aldridge posed any danger. Q. Well, who was the correctiona l officer working th ere that mornin g? A. That m orning it wa s Avery. Q. Okay. Did Aver

y have any idea or notice or any inclination to think you were in any danger fro m Inmate Aldri dge that mornin g? A. Not that I know of. Moreover, there is no proof in the record establishing that Inmate Aldrid ge had any disci plinaryinfractions or other histo ry of assaults during the two years he had bee n i n prison prior to his att

ack on Hanks.

Based on the foregoing, the State had no notice that

Aldridge posed any thr eat of harm to Hanks. Therefore, we conc lude that the State did not breach its required duty of
care. We affirm the Claims Com mission’s order granting summary judgment in this cause. Costs on appeal are adjudged against the appellant.7 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.