For reversal -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judge Sullivan. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
While the plaintiff was a prisoner at the Rahway State Prison he was assaulted by a fellow prisoner and suffered injuries to his person. He filed a complaint in the Law Division against the State of New Jersey, the Prison Superintendent, a Deputy Keeper and a Wing Keeper. His complaint was grounded on negligence and he sought compensatory damages for his injuries. Depositions were taken of the plaintiff and the individual defendants; thereafter the defendants moved for summary judgments which the Law Division entered in their favor. On appeal, the Appellate Division sustained the summary judgment in favor of the State but ordered a plenary trial with respect to the plaintiff's claims against the individual defendants. 118 N.J. Super. 384 (1972). We granted certification on the petition of the individual defendants (60 N.J. 469 (1972)); there was no cross petition by the plaintiff.
The basic facts may be gathered from the depositions and there is no material dispute in this proceeding with respect to them. On April 6, 1967 the plaintiff returned to his cell at the Rahway prison after mess. His cell along with the 31 other cells on the third tier were locked through a master control operated by the defendant Wing Keeper Rafferty. According to the plaintiff's testimony, Rafferty was about "three-quarters of the way down the tier" when the cells were locked and from his spot Rafferty could not see into the plaintiff's cell. As the plaintiff entered his cell he noticed that his bed had been pushed out of place but he did not notice his fellow prisoner Brown who had apparently secreted himself in the cell. Brown repeatedly struck plaintiff with a ten-inch reamer which Brown had evidently taken from the prison machine shop. The plaintiff
received medical attention and was later transferred to the Trenton State Prison for further examination and treatment.
The prison records contain no indication of any prior prison incident involving Brown and the defendants testified that they had no prior information which would lead them to believe that Brown was any special threat to the plaintiff or other prisoners. The plaintiff testified that he hardly knew Brown and had no reason to anticipate an assault by Brown; but he further testified that he had received an unsigned note, which actually came from Brown, requesting sexual relations which he thereafter rejected. The plaintiff unequivocally acknowledged that he did not at any time prior to the assault tell any of the defendants or anyone in authority about the note or about any incident or encounter with Brown.
The defendant Pinto testified that he is Superintendent of Rahway State Prison and is charged with general supervision of the operation of the institution. He received a report of the assault on the plaintiff but had no prior indications of threat or danger. He described the security measures at the prison machine shop where Brown had been assigned to work and stated that when prisoners were leaving the shop they were subjected to random searches for tools and other implements. He also described the security measures when prisoners were returning to their cells and expressed the hope that each of his Wing Keepers would know all of the inmates in his wing, though he acknowledged that he "wouldn't say that for sure because we have new officers from time to time who naturally would not know the inmates, unfortunately." He testified that all prison employees receive copies of the "Manual of Operations & Procedures" which contains instructions with respect to the supervision of prisoners in and out of their cells, the maintenance of records with respect to tools in the prison shops, etc. See 118 N.J. Super. at 387-388.
The defendant Olden is a Deputy Keeper at Rahway State Prison. He testified that he is third in command and is in charge of the correctional force at the prison. He had no knowledge of prior incidents involving Brown but acknowledged that in a maximum security institution such as Rahway it might be assumed that the inmates may have a penchant for "psychopathic activity." He stated that Rahway was operated on that assumption. While he had no personal knowledge, he assumed that when the cells in the plaintiff's tier were thrown open to allow the inmates in, Brown went into the plaintiff's cell and was there when he arrived. The defendant Rafferty testified that on the day of the assault he was the substitute Keeper of the wing in which both Brown and the plaintiff were housed. Brown was on the fourth tier whereas the plaintiff was on the tier below. Though he knew the plaintiff, he did not know Brown and did not see him enter the plaintiff's cell. He stated that there were over one hundred and twenty-five inmates in the wing, that he was never the permanent Wing Keeper, and that he had substituted there about "ten times from 1966 to 1967."
We are not now confronted with any claim by the plaintiff that he is entitled to damages from the State of New Jersey because of its alleged failure to provide suitable prison facilities for his care and safety while in custody. At the time of the attack the State was clearly immune from any ensuing tort claim by him. See Willis v. Dept. of Conservation and Economic Development, 55 N.J. 534, 541 (1970). The recently enacted New Jersey Tort Claims Act continues this immunity in its pertinent aspects. L. 1972, c. 45; N.J.S.A. 59:1-1 et seq. It contains a sweeping provision that neither a public entity nor a public employee shall be liable for injury caused by "a prisoner to any other prisoner" (N.J.S.A. 59:5-2); since this provision is effective only prospectively (N.J.S.A. 59:12-3) it has no application to the case at hand and we need not deal with it.
Because of the State's immunity, the Appellate Division affirmed the trial court's judgment in its favor (118 N.J. Super. at 389) and the plaintiff does not assert before us that there was any error in this regard. His present contention is that the individual defendants owed him a duty of due care which they negligently failed to discharge and that they are individually liable for the consequential injuries to him. See Restatement (Second) of Torts § 320 (1965); Prosser, Torts § 56, p. 349 (4 th ed. 1971); cf. Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N.J. 230, 235 (1968); see also Annot., 41 A.L.R. 3 d 1021 (1972).
The individual defendants, represented by the Attorney General, acknowledge that the plaintiff was owed a duty of due care while in custody and that in appropriate circumstances he would be entitled to a recovery on a showing that a prison official negligently failed to discharge his responsibility for the plaintiff's care with resulting injuries to him. See Kisielewski v. State, 68 N.J. Super. 258, 262 (App Div.), certif. denied, 36 N.J. 144 (1961). But they point out that the depositions, even when viewed most favorably to the plaintiff, failed to indicate any such negligence and failed to meet the prior notice requirement which is generally adhered to by the courts when prisoners seek recovery from prison officials because of injuries suffered at the hands of fellow prisoners. See Muniz v. United States, 280 F. Supp. 542, 547 (S.D.N.Y. 1968); Johnson v. United States, 258 F. Supp. 372, 376 (E.D. Va. 1966); cf. Summers v. Horton, 443 F.2d 225, 226-227 (4 Cir. 1971); Middletent v. United States, 311 F. Supp., ...