New York State Court of Claims

New York State Court of Claims

BETHUNE v. THE STATE OF NEW YORK, #2000-029-025, Claim No. 95636


Synopsis


Prisoner - Injured in State van while being transported from one facility to another. Claimant failed to establish he sustained a "serious injury" pursuant to Insurance Law § 5102 (d).

Case Information

UID:
2000-029-025
Claimant(s):
OSCAR BETHUNE
Claimant short name:
BETHUNE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95636
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Oscar Bethune, Pro Se
Defendant's attorney:
Hon. Eliot Spizer
Attorney General of the State of New YorkBy: Elyse Angelico, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim, by an inmate appearing
pro se, concerns a motor vehicle accident that occurred on February 14, 1996 while claimant and several other inmates were being transported to Sing Sing Correctional Facility (hereinafter Sing Sing) from Downstate Correctional Facility (hereinafter Downstate) in a van owned by the State of New York and operated by an employee of the Department of Correctional Services. The trial of this claim was held at Sing Sing on September 21, 2000.
Claimant was the only witness to testify at trial and testified to the following: (1) on February 14, 1996 he and several other inmates were being transported from Downstate to Sing Sing in a State van; (2) he was shackled during the ride; (3) the van stopped so that the correction officers (COs) could purchase a drink, which claimant believes was coffee; (3) there was some snow on the ground; (4) when the van proceeded on its way to Sing Sing after stopping for the coffee, the CO driving the van was holding his drink cup while driving; (5) the van skidded on some snow then hit a fence prior to striking a telephone pole; (6) the speed limit in the area was 15 MPH and he believes the van was traveling faster than that at the time of the accident.

Claimant further testified that the two COs unsuccessfully attempted to dislodge the van from the pole and then called Sing Sing for assistance. Claimant stated that Sergeant Cunningham responded to the scene about 15 minutes after the accident whereupon claimant and three other inmates advised him they had been hurt.

Claimant testified that the van was eventually pulled off of the pole and the inmates arrived at Sing Sing. He stated he went to the infirmary and complained of back pain; was informed he had a pinched nerve and was given Motrin for his pain. Claimant has been taking Motrin for pain since the accident occurred.

On cross-examination, claimant stated that he had his eyes closed and was resting prior to the accident. He also stated that he did not see the vehicle's speedometer, so he does not know how fast the van was traveling prior to the accident.

The driver of a motor vehicle must exercise reasonable care taking into account the actual and potential dangers existing from weather, road traffic and other conditions (
see, Tenczar v Milligan, 47 AD2d 773, lv den 36 NY2d 645). Based upon the evidence presented at trial, the Court finds that claimant has failed to establish by a preponderance of the credible evidence that the State employee driving the van at the time of the accident was negligent. Claimant admitted he could not see the vehicle's speedometer and was unable to estimate the speed of the van prior to the accident. Negligence cannot be inferred solely from the occurrence of an accident (see, Killeen v State of New York, 66 NY2d 850, 851; see also, Condon v State of New York, 193 AD2d 874).
Further, claimant failed to establish that he sustained a serious injury as defined by Insurance Law § 5102 (d). Claimant failed to submit any medical proof whatsoever on this issue. As a passenger in a motor vehicle, claimant was a "covered person" as defined by Insurance Law § 5102 (j). Thus, maintenance of this action requires that claimant prove existence of a "serious injury", defined in Insurance Law § 5102 (d) as follows:

"Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eight days immediately following the occurrence of the injury or impairment.

Claimant has the burden of proof in establishing that he sustained a serious injury (
Cooper-Fry v Kolket, 245 AD2d 846) and the same burden as any other litigant to submit expert medical evidence when the facts of the case so require (Duffen v State of New York, 245 AD2d 653). While in rare cases where the injury is within the experience and observation of ordinary lay persons, causation and "serious injury" may be established without expert medical testimony (Lanpont v Savvas Cab Corp., 244 AD2d 208), such is not the case here. The alleged injuries are internal injuries to the back and are not within the ordinary knowledge of a lay person or this Court. Thus, claimant must submit expert medical testimony regarding causation and prognosis in order to establish a prima facie case that he has sustained a serious injury (Andre v Seem, 234 AD2d 325), demonstrating objective findings through diagnostic studies, X rays, CAT scans or MRIs in order to diagnose a spinal injury (Bushman v Di Carlo, 268 AD2d 920). Expert medical witness must then establish degree and causation to a reasonable degree of medical certainty (Dumas v Valley View House, Inc., 235 AD2d 767).
As claimant failed to establish by a preponderance of the credible evidence that the State was negligent in the operation of the State vehicle or that claimant sustained a serious injury pursuant to Insurance Law § 5102 (d), the State's motion to dismiss made at the conclusion of trial, upon which the Court reserved decision, is now granted and the claim is dismissed. The Chief Clerk is directed to enter judgment accordingly.

October 5, 2000
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims