Conford, Matthews and Fritz. The opinion of the court was delivered by Fritz, J.A.D.
Plaintiff was a prisoner confined in maximum security detention at Rahway State Prison when he was assaulted in his cell by a fellow prisoner and badly injured. He sues the State of New Jersey and the individual defendants on the theory that they were negligent in their respective duties to prevent others from injuring him and in their failure to exercise the required care in "the hiring and supervision of proper and competent help" proximately resulting, he claims, in these injuries. Defendant Pinto is the superintendent, Olden the deputy keeper, and Rafferty the wing keeper of the prison wing involved. Summary judgment in favor of defendants was entered on motion before trial, and plaintiff appeals.
All parties were deposed and certain other documentary evidence was available to the trial judge at the time of the motion. Giving plaintiff the benefit of the doubt with respect to the facts and allowing him all reasonable inferences, as we must for the purposes of a motion for summary judgment, we find the facts to be as follows.*fn1
On the morning of April 6, 1967 plaintiff returned to his cell from mess. Another prisoner, who had previously solicited plaintiff's participation in sexual activities and was refused, had gained access to plaintiff's cell, was lying in wait, and with the use of a reamer apparently appropriated from the machine shop where the assailant worked, inflicted serious injuries upon plaintiff. While plaintiff and assailant were domiciled in the same wing, plaintiff's cell was on the fourth tier and the assailant's cell was on the second tier. Visiting between tiers is forbidden. An inmate may go to a location different from one at which he belongs only upon the issuance of a pass for a legitimate reason. In this respect, the following instructions are abstracted from the Manual
of Operations and Procedures promulgated by the Division of Correction and Parole of the Department of Institutions and Agencies for the New Jersey State Prison at Rahway.
Counts are a continuous process in a maximum security institution, and officers are expected to be aware of who and what groups are in their cells, and where they should be if out of their cells. This awareness should be with him at all times.
Inmates are not to be permitted to visit from cell to cell, tier to tier, or wing to wing. If an inmate has a problem that makes it necessary for him to see or talk to another inmate, locking in a different location, and if, in the officer's opinion, his request warrants immediate attention, the officer will advise the Center Keeper. If the Center Keeper approves, both inmates will be brought together in the Center.
The rules are also illuminative with regard to the weapon which was used:
A record will be kept of all tools in the shop and the NAME and NUMBER of the inmates using a certain tool will be listed. The inmate will be held responsible for the tool issued to him until he returns same at the end of the working period -- or whenever it is necessary for him to leave the shop. If a tool discrepancy is discovered, shop instructor or officer shall immediately contact the Shop Marshall. Tools will be issued ONLY to inmates who are approved to use such tools.
Upon completion of the morning and afternoon work periods, after all tools have been checked in and found to be correct, the instructor or officer will answer the bell from the Center with one ring, signifying the return of the inmates to the housing units.
In addition to regulation by procedures set up to prevent the presence of inmates in cells or tiers in which they do not belong, deposition testimony of the individual defendants acknowledged a responsibility for the safety, care and custody of the inmates. Superintendent Pinto testified, for instance, that "escorts" shepherding the prisoners from place to place within the prison walls should be aware of where the prisoners' cells are, ...