This claim, by an inmate appearing
, 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
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
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
, 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
, 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
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.