                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON


CARL HANKS,                        )

           Petitioner/Appellant,
                                   )
                                   ) Claims Commission No. 401858
                                                                 FILED
                                   )
VS.                                ) Appeal No. 02A01-9810-BC-00295 July 2, 1999
                                   )
STATE OF TENNESSEE,                )                             Cecil Crowson, Jr.
                                   )                           Appellate Court Clerk
           Defendant/Appellee.     )


                 APPEAL FROM THE CLAIMS COMMISSION
                           OF TENNESSEE
           THE HONORABLE MARTHA BRASFIELD, COMMISSIONER




CARL HANKS, pro se
Henning, Tennessee


PAUL G. SUMMERS
Attorney General & Reporter
MICHAEL MOORE
Solicitor General
PAMELA S. LORCH
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellee




AFFIRMED




                                                     ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
     This appeal is brought from the Claims Commission’s order dismissing the
appellant’s petition. Petitioner, a Tennessee Department of Correction inmate, was

attacked by another inmate and sustained injuries as a result. Petitioner alleged in his

complaint that the State of Tennessee was negligent in not providing adequate security.

For the following reasons we affirm the Claims Commission’s order granting the State’s

motion for summary judgment.



       Carl Hanks, appellant, is an inmate housed at the Lake County Regional

Correctional Facility (”Lake County”). The Lake County prison houses only minimum

custody level inmates. The prison is comprised of separate physical units known as

“guilds” in which the inmates are housed. At the time of the attack, Hanks was housed in

Guild 3. Guilds 2 and 3 are attached by a connecting corridor, and they are guarded by

one security officer, who rotates between the two guilds.



       Billy Aldridge was another inmate who lived in Guild 3 at the time of the attack.

Hanks and Aldridge were acquainted as both had been housed as pretrail detainees in

Shelby County in 1992. Aldridge worked in the kitchen in Guild 3. After arriving at the

Lake County prison, Hanks and Aldridge had had some disagreements over the food

service, the last of which had occurred on the evening of July 11, 1994.           These

disagreements 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. It is undisputed that Hanks never complained to prison

officials about Aldridge nor did he seek protective custody.



       Following breakfast on the morning of July 12, 1994, Aldridge instructed Hanks to

come into the kitchen in Guild 3 to empty his food tray. Upon entry, Aldridge 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, 1995, Hanks filed a complaint with the Tennessee Claims

Commission, naming the State as the defendant. Hanks alleged that the State was liable



                                              2
for the attack because the State failed to provide adequate security 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 Commission entered an order

granting summary judgment in favor of the State. Thereupon, Hanks filed a notice of

appeal on October 15, 1998, and the appeal is properly before this Court for consideration.



       The Court first turns its attention to an issue raised by the appellee, that is, whether

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 filed within 30 days as required by Rule 4 T.R.A.P.



       Rule 58 T.R.C.P. sets forth the requirements for entry of a judgment, and it states

in relevant part:

              Entry of a judgment or an order of final disposition is effective
              when a judgment containing one of the following is marked on
              the face by the clerk as filed for entry:
              .....
              (3) the signature of the judge and a certificate of the clerk that
              a copy has been served on all other parties or counsel.


       While the order was signed by the Commissioner on September 14, 1998, the order

was not “entered” under Rule 58 T.R.C.P. until September 16, 1998, when it was marked

as “Filed” by the Claims 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 appeal-in-chief. On

appeal, the appellant contends that the prison violated its own policies and post orders.

After careful examination of the pleadings filed below, we find that nowhere did the

appellant ever allege that the State, through its officers at the prison, violated its own

operating policies and post orders. Instead, the appellant alleged only that the State was



                                              3
negligent in not providing adequate 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 in the record.



       No presumption of correctness attaches to decisions granting summary judgment

because they involve only 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 noting that a motion for

summary judgment should only be granted if the movant demonstrates that there are no

genuine issues of material fact and that the 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 208, 210 (Tenn. 1993).

The party moving for summary judgment bears the burden of demonstrating that no

genuine issues of material fact exist. 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 nonmoving party must then
              demonstrate, by affidavits or discovery materials, that there is
              a genuine, material fact dispute to warrant a trial. (Citations
              omitted). In this regard, Rule 56.05 provides that the
              nonmoving party cannot simply rely upon his pleadings but
              must set forth specific facts showing that there is a genuine
              issue of material fact for trial.

Id. at 211. (Emphasis in original).



       T.C.A. § 9-8-307(c) provides 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 Hanks to establish that his

injuries were caused by the negligence of the State. To do that, the appellant must prove

the following elements: (1) a duty of care owed by the State to the claimant; (2) conduct

falling below the applicable standard 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).

                                              4
       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 safety. In a case such

as this, the conduct of the prison officials must be commensurate 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-inmate assaults.



       The general rule is that penal institutions have a duty to use reasonable and

ordinary care to prevent foreseeable attacks on inmates by other inmates. The penal

institution breaches this duty when its authorities know of or have reason to anticipate an

attack and do not use reasonable care to prevent 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 Lexington 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, we find no breach of the required duty of care on the part

of the State. Hanks admitted 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 problems would arise
       between you and Mr. Aldridge going all the way back to the very beginning
       the first time you had a problem with him, have you gone to any guild officer
       or department of correction officials to report it, or have you merely tried to
       I’m just going to get it worked out between me 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. Aldridge.

                                             5
      A. No, sir.

      Q. You haven’t gone to any correctional officer and told on Mr. Aldridge --

      A. No, sir.

      Q. -- or complained about him.

      A. No, sir.

      Q. Okay. So on the evening of July 11th when the incident occurs going
      through the chow line at supper involving the omelet, you just went and sat
      down and ate.

      A. Yes, sir.

      Q. And you didn’t say anything to Mr. Aldridge about it at the time.

      A. No, sir.

      Q. And you didn’t go to report 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 correctional officer working there that morning?

      A. That morning it was Avery.

      Q. Okay. Did Avery have any idea or notice or any inclination to think you
      were in any danger from Inmate Aldridge that morning?

      A. Not that I know of.

Moreover, there is no proof in the record establishing that Inmate Aldridge had any

disciplinary infractions or other history of assaults during the two years he had been in

prison prior to his attack on Hanks.




      Based on the foregoing, the State had no notice that Aldridge posed any threat of

harm to Hanks. Therefore, we conclude that the State did not breach its required duty of

care. We affirm the Claims Commission’s order granting summary judgment in this cause.

Costs on appeal are adjudged against the appellant.




                                           6
                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




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