claim of Armando Guzman arises from an incident in which he hit his lip on a
metal barrier in a Department of Correctional Services ("DOCS") "mini-bus."
Guzman also complains of the medical treatment he received after the incident.
The claim was tried at Sullivan Correctional Facility on June 20, 2000.
Claimant testified on his own behalf. Defendant called correction officers
Franklin Mitchell and Thomas Curry as well as DOCS nurse Sabrina von
Guzman testified that on May 30, 1997, he boarded a DOCS mini-bus to be
transported to Elmira Correctional Facility. He was shackled and handcuffed and
told where to sit, apparently behind a metal screen or barrier in the front of
the bus. Guzman said that other inmates, whom he referred to as "disciplinary
inmates" since were being transferred to disciplinary housing, were also on the
bus that day. According to Guzman, while en route, the driver, Officer
Mitchell, told the disciplinary inmates to stop being loud, but they did not
heed his order. Guzman said the driver then became "agitated," speeded up the
bus for a few seconds, after which he slammed on the brakes, "smirking," while
asking the disciplinary inmates to "keep the noise down." Guzman stated that
when the bus stopped, he was thrown against the metal barrier and cut his lip.
He recounted that he told the driver he was bleeding and asked if he could have
gauze from the first aid kit on the bus, but the driver replied that he would
have to wait to see a nurse at the next facility they stopped at. Claimant also
contended that at some point the driver apologized to him, saying that the
disciplinary inmates had angered him and he was "just trying to do his
The next stop of the bus was a rest
Claimant said that this stop occurred approximately two hours into the trip, but
he also said that he thought the entire trip from Sullivan to Elmira took two
The following stop was Southport Correctional Facility, where Guzman saw a
nurse who made recommendations for his treatment at his ultimate destination,
Elmira, where he was in fact treated. Guzman said that he did not receive any
stitches for the cut -- which he described as "not a big cut" -- adding that he
had been bleeding for two hours after the incident without any treatment.
Guzman recalled that the Elmira nurse told him to wash his lip with soap and
water. He also asserted that when he was thrown back into his seat after
hitting the barrier, the box covering his handcuffs cut into his back and he had
shoulder pain from the incident.
Mitchell testified that he was a transportation officer for DOCS. He recalled
that on May 30, 1997, he was transporting 12 inmates, including Guzman, and had
a special license for the bus, which he regularly drove.
Mitchell said that although he recalled certain inmates being loud and
boisterous, and recalled ordering them to be quiet, he denied having been
agitated or speeding up and slamming on the brakes. To his knowledge, no other
inmates fell out of their seats or were injured on the bus. In fact, Mitchell
stated that he did not even learn that Guzman had hurt his lip until he heard
other inmates say that Guzman's lip was bleeding. At that point, Mitchell
recalled, the bus was close to the exit for the rest stop. Mitchell recounted
that once there, after lunch and the use of the restrooms, he pulled into a
nearby service station (because the rest area had no water), where he dampened
some napkins for Guzman, who refused the napkins or any help, saying he was all
Mitchell explained that the next stop was Southport – at most 20 minutes
from the rest stop. Mitchell said that although Guzman repeatedly stated he did
not need help, Mitchell directed him to see a nurse at Southport. Mitchell also
stated that Guzman never asked for anything from the first aid kit. He
testified that he had received training in first aid, but did not offer anything
from the kit to claimant as he did not believe that there was anything that
could be useful to him. Mitchell said he might have apologized to claimant
because of his "professionalism," but maintained that he had never slammed on
Thomas Curry testified that he was a transport officer on the bus on which
claimant was riding, but he had no particular recollection of the trip or
incident and did not recognize Guzman. He explained that two correction
officers travel on the transport bus – the driver, and an officer who is
armed and sits in the front "jump seat"; he served in the latter position on
this particular trip. On cross-examination, Curry stated that DOCS buses do not
have seat belts for inmates or any other restraints to prevent them from falling
out of their seats.
Sabrina von Hagn testified that on the day in question, she was a nurse at
Southport Correctional Facility. At trial, she reviewed Guzman's Ambulatory
Health Records for May 30, 1997 (see Claimant's Exhibit 1), and stated that she
prepared and signed the top portion which states "Seen on way to Elmira . . .
Driver of bus hit brakes and inmate Guzman went forward hitting metal screen
with upper lip. Noted ½ [illegible word] laceration to upper lip [right]
side. Needs steri strips/needs area cleaned [illegible word] -- steri strips
Von Hagn testified that she saw claimant in the draft area of Southport where
there are no medical supplies, so she called Elmira to advise that claimant was
coming. The nurse said that if there had been supplies, she would have put
Betadyne on the cut and applied a steri strip. Von Hagn said she saw no major
blood loss and described the cut as a very superficial laceration.
The following entry on the Ambulatory Health Record, apparently made by a nurse
at Elmira provides "seen at reception area . . . hit his lip when the vehicle he
was riding in had to brake. [Inmate] had a very small 1/4 cm laceration noted to
the [right] side of his upper lip. [Inmate] denies any other injuries. This
undersigned nurse feels no sutures are required. Advised to keep wound clean
and dry [and to] advise [medical department] of any further problems."
Finally, it should be noted that at the trial, three affidavits of other
inmates who were on the bus with claimant were marked as claimant's Exhibits 4-6
for identification and the issue of admissibility was reserved. Affidavits
offered in lieu of the live testimony of the affiants are ordinarily not
admissible as proof of the facts contained in the affidavits, because the
adverse party has no opportunity to cross-examine. See, e.g.,
Manufacturers Hanover Trust Co. v Manufacturers and Traders Trust
, 174 AD2d 548, 571 NYS2d 726 (1st Dept 1991), lv denied
, 78 NY2d
860, 576 NYS2d 218 (1991). Accordingly, Exhibits 4-6 are inadmissible.
In a March 18, 1998 Decision and Order, Judge Philip J. Patti dismissed those
portions of Guzman's claim that arose from the negligent operation or use of a
motor vehicle on the ground that Guzman had failed to plead a "serious injury"
pursuant to the Insurance Law. The remaining causes of action essentially are
that: 1) defendant failed to equip the bus with safety belts; 2) the incident
was an assault and battery in that the driver recklessly or deliberately slammed
on the brakes; and 3) claimant's medical treatment following the incident was
As to safety belts, Vehicle and Traffic Law §383 provides that school
buses must have a safety belt for each passenger seat. However, buses other
than school buses – such as the one in which Guzman was riding – are
only required to have a safety belt for the driver; safety belts are not
required for passenger seats.
Regarding assault and battery, Guzman testified that Mitchell deliberately
speeded up the bus and then slammed on the brakes, while Mitchell denied this.
Aside from this diametrically opposed testimony, the only other evidence that
claimant presented was Mitchell's apology. However, such an apology is just as
consistent with a negligent braking (which cause of action has already been
dismissed), or even with mere sympathy that an injury had occurred. In short, I
find that claimant has failed to prove by a preponderance of the evidence that
an assault and battery occurred.
Finally, with regard to medical treatment, "[i]t is fundamental law that the
State has a duty to provide reasonable and adequate medical care to the inmates
of its prisons." Rivers v State of New York
, 159 AD2d 788, 789, 552
NYS2d 189 (3d Dept 1990), lv denied, 76 NY2d 701, 557 NYS2d 878 (1990).
However, "[w]hile the State has a duty to render adequate medical services to
inmates without undue delay, in order for the State to be liable it must be
shown that the delays in diagnosis and/or treatment were a proximate or
aggravating cause of the claimed injury . . ." (citation omitted). Marchione
v State of New York,
194 AD2d 851, 854-55, 598 NYS2d 592, 594 (2d Dept
1993). In this case, it is undisputed that claimant received medical treatment
for what he himself referred to as "not a big cut." As to any delay, even
, that there was, as claimant stated, a two-hour lapse
from the time of the injury to treatment, Guzman presented no evidence that this
aggravated or worsened his injury.
In view of the foregoing, this claim of Armando Guzman is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.