CANTEEN v. THE STATE OF NEW YORK, #2001-001-531, Claim No. 97934
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
SUSAN PHILLIPS READ
Adam Thompson, Esq.
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General, Of Counsel
February 13, 2002
See also (multicaptioned
Claimant Henry Canteen ("claimant"), an inmate at Franklin Correctional
Facility ("Franklin") at the time, brought this claim against defendant State of
New York ("defendant" or "the State") to recover damages for pain and suffering
on account of injuries that he allegedly sustained to his lower back on January
6, 1997 when a van driven by C.O. Brad Lee Lucas ("Lucas") veered off State
Route 374 at approximately 2:00 p.m. Lucas and C.O. B. Kuorofsky ("Kuorofsky")
were returning claimant and four other inmates from Clinton Correctional
Facility ("Clinton"), where they had been taken in the same van along the same
route by the same officers earlier in the day to attend physical therapy
sessions, to the facilities in which they were incarcerated, either Franklin or
Bare Hill Correctional Facility ("Bare Hill").
Lucas testified that at the time of the accident
[t]he road was clear and dry and--as I come [sic] down the hill I noticed in
front of me there was about a 6-foot drift where the snowplow had plowed the
road and there was--the wind had been blowing off the lake and it filled the
road up; not filled it up but put about a foot of snow in that one spot in front
of me. . . . and as I come [sic] into it I slowed down and I come [sic] into the
drift and it just pulled me off the road to the right into the
It was not snowing, and Lucas surmised that the one-foot drift of "mealy snow"
that he encountered had blown onto the road off the six-foot bank created by the
snowplows (see also, claimant's exhs. 6 and 7). This one-foot drift had
not been present earlier in the day when Lucas and Kuorofsky drove the inmates
to Clinton, with Kuorofsky at the wheel.
given what he remembered about the weather and his many trips on this road; the
posted speed limit is 55 m.p.h.
When Lucas lost control of the van, it traveled perhaps 30 to 40 feet before
going into a ditch, brushing the guy wire of a telephone utility pole and coming
to rest in a culvert. By the time of the trial, Lucas no longer recalled the
speed at which he had been driving, but he estimated that his speed was likely
about 50 m.p.h.,
The accident, which occurred in a straightaway of the "curvy and hilly" road,
damaged the van's left front undercarriage and left front tire, and the contact
with the guy wire caused a scratch behind "the bumper area" (exhs. 9-a through
9-e, photographs of the van at the scene of the accident). The van was towed
away and repaired, and remains in service.
At the time of the accident, claimant was lying on his side on a bench in the
back of the van, and was dozing "because [he] didn't feel that comfortable
because [he] was in a lot of pain from the ride." He testified that he heard
another inmate caution or admonish Lucas "Can't you please slow down?" Claimant
was shackled at the hands and feet, and was "thrown about" when the van left the
After the van came to a rest, Kuorofsky checked on his colleague, Lucas, and
the five inmates, to make certain no one had been seriously injured (claimant's
exh. 6). He then got out of the van and used a cellular telephone offered to
him by a passerby to call Bare Hill to report what had happened (
Shortly thereafter, Donna Frenya ("Frenya"), an off-duty nurse on her way home
from her job at Lyon Mountain Correctional Facility ("Lyon Mountain"), stopped,
identified herself and checked on the condition of the five inmates (
id.). According to Frenya,
[c]omplete exams were impossible due to vehicle and weather conditions and
inmate restraints, but . . . all five inmates denied loss of consciousness, and
on gross exam, appeared to have only contusions of legs and knees where they
stated they had banged them against the seat ahead of them. [Claimant] located
in the rear of the van complained of severe leg pain, so one of the officers
removed the restraints enough to make examination easier, but inmate insisted he
could not move enough to allow his pant legs to be raised enough for
examination. Small contusions, abrasions, and slight scrapes with minimal
amounts of blood were all I observed with traces of blood on knee areas not
directly observed. Later all inmates['] gross motor movements appeared intact
as they exited the van with the help of the correctional [sic] officers. None
had any obvious difficulty including [claimant]. [He] was kept with his leg
elevated on the seat except for exiting and entering the second van [which
arrived from Lyon Mountain], before ambulances arrived
(claimant's exh. 26; see also
, claimant's exh.
Next, State Police Trooper Jerome E. Miner, Jr. ("Miner") arrived and set
flares and called snowplows to clear the roadway of the one-foot snow drift
). Miner investigated the accident and prepared a report; he issued
no ticket to Lucas (claimant's exhs. 5 and 10).
At approximately 2:50 p.m., a rescue vehicle from the Champlain Valley
Physicians' Hospital arrived at the scene and claimant was removed from the
second van on a stretcher to this hospital, where he was treated and released
without hospital admission (claimant's exh. 6;
, claimant's exh. 11 at 000175 [medical report dated January 6,
1997 and signed by a nurse at Franklin]). The other four inmates were taken by
van to the hospital at Clinton, where they were treated and released
).I. Discussion and
Claimant argues that Lucas was negligent because, having testified that he
observed a patch of snow and ice on the road from the "great distance" of 50 to
100 feet, he nonetheless drove straight ahead without slowing down rather than
coming to a complete halt or driving around this obstacle; and that, in any
event, Lucas was driving at an excessive rate of speed in light of the road
conditions (claimant's trial memorandum, dated October 25 and received October
26, 2001 ["claimant's trial memorandum"], pp. 2-7). Claimant further contends
that he sustained a "serious injury" within the meaning of Insurance Law §
5102 (d) because he suffered a medically determined injury or impairment to his
lower back of a non-permanent nature, which prevented him from performing
substantially all of the material acts that constituted his usual and customary
daily activities for 90 of the 180 days immediately following the accident (the
so-called "90/180-day rule"). As proof, claimant points principally to his
"various medical treatment[s], physical therapy, bed boards, back braces,
medication, and work restrictions" (
, at p. 8) and his inability to engage in athletic activities in the
months following the accident (id.
, at pp. 8-13).
Defendant urges the Court to absolve the State of negligence under the
emergency doctrine because Lucas was faced with a sudden and unexpected
circumstance not of his own making, which left little or no time for thought,
deliberation or consideration and because he took actions that
were reasonable and prudent under these emergency circumstances
(defendant's trial memorandum, dated July 27 and received July 31, 2001
["defendant's trial memorandum"], pp. 1-5; see
, Kuci v Manhattan
& Bronx Surface Transit Operating Authority
, 88 NY 2d 923 [trial
court erroneously refused to instruct jury on the emergency doctrine in case
where bus passenger was thrown across aisle and hit his head against a metal
pole when a moving bus came to an abrupt stop after applying the brakes in a
futile attempt to avoid hitting a car that suddenly appeared on the bus driver's
left and pulled in front of bus as driver was leaving a designated stop: "That
a driver was aware that cars often made right turns in front of buses would not
preclude a jury from deciding that, as to the events in issue in this case, the
driver did not anticipate being suddenly cut off by this particular car";
, at 924]; Rivera v New York City Transit Authority
, 77 NY2d
322 [trial court erred in refusing to instruct jury on the emergency doctrine
and foreseeability in a case where decedent fell from a platform onto subway
tracks and was struck and killed by an arriving train]). Defendant further
argues that claimant, who had a long history of lower back pain preceding the
accident, has not established a serious injury within the meaning of the
no-fault statute (defendant's trial memorandum, at
Based on the testimony and evidence adduced at trial, the Court finds as
(1) When he came upon an isolated, one-foot drift of snow in the driving lane,
which was not present when he and Kuorofsky had traveled the same route earlier
in the day, Lucas was confronted with a sudden and unexpected circumstance not
of his own making, which left little or no time for thought, deliberation or
consideration and, by slowing down and driving straight ahead, he took actions
that were reasonable and prudent under these circumstances.
Although claimant contends that Lucas did not slow down when he encountered the
one-foot drift, he testified otherwise (
, p. 2, supra
) and the Court finds this testimony credible.
Moreover, the Court has nowhere in either its notes or the trial audiotapes
discovered any testimony by Lucas that he saw the one-foot drift of snow 50 to
100 feet before he encountered it, as claimant contends. Even if he had, at a
speed of 35 m.p.h. (Lucas's contemporaneous estimate of his speed), the van was
traveling approximately 51 feet per second, and at a speed of 50 m.p.h. (Lucas's
trial estimate of his speed) the van was traveling approximately 73 feet per
second; therefore, at either speed Lucas had something on the order of less than
one to no more than two seconds in which to react to the emergency and take
action. His quick decision to ease up on the gas and proceed straight ahead
strikes the Court as at least as prudent and reasonable as the alternatives
suggested by claimant; namely, applying the brakes to try to come to a complete
stop or swerving towards the center line in order to avoid the one-foot drift
In addition, claimant has presented no credible evidence to support his
contention that Lucas was exceeding the speed limit, or simply driving too fast
for the road conditions. Lucas himself testified that the road was generally
"clear and dry" at the time of the accident and that he was driving under the
speed limit. He was not ticketed for any violation of the Motor Vehicle Law.
The van suffered minimal damage and remained upright, which is inconsistent with
its having hurtled off the road at a high rate of speed.
Claimant's only evidence contrariwise is his testimony at trial that he
observed that the road was "icy" and "real slippery" and that another inmate
asked Lucas to slow down shortly before the van left the road. At this
deposition, however, claimant testified as follows:
Q: The road you were on at the time of the accident, did you make any
observation about the conditions of the road before the accident occurred? By
that, I mean, was it wet, was it dry, was it anything else?
A: No, I didn't make any observations about the road.
Nor does the Court find claimant's testimony about the
overheard remark credible: he acknowledged that he was lying down on a bench at
the back of the van sleeping lightly at the time. In any event, this hearsay
statement, even if made, is no proof that Lucas was, in fact, exceeding the
speed limit or driving too fast for the road conditions. Finally, claimant's
contentions that an accident would have been avoided if Lucas had taken other
action or had been driving more slowly is conjecture and does not deprive the
State of the benefit of the emergency doctrine (Barber v Young
, 238 AD2d
(2) Claimant has failed to prove a serious injury within the meaning of the
90/180-day rule of Insurance Law § 5102 (d), which requires that he
establish that he has been "curtailed from performing his usual activities to a
great extent rather than some slight curtailment" (
Licari v Elliott
, 57 NY2d 230, 236); that his inability to perform
"substantially all" of his customary and usual daily activities was "medically
indicated" (Relin v Brotherton
, 221 AD2d 840); that medical proof
connects the purported inability to engage in his customary and usual activities
to his alleged accident-related injuries (Honig v State of New York
AD2d 779); and that this medical proof consists of "objective medical findings"
and not just claimant's subjective complaints of pain (Bennett v Reed
263 AD2d 800).
Here, claimant contends that prior to the accident, he experienced only "minor
problems" with his back, which uniformly abated within three or four days;
however, claimant's ambulatory health record (claimant's exh. 11) belies this
testimony. Specifically, claimant made complaints and sought treatment for his
lower back on numerous occasions prior to January 6, 1997 (
, claimant's exh. 11 at 000072 [notation from March 16,
1996: "Chronic back problems"]; id.
, at 000079 [notation from July 13,
1995: "Says has hx of back problems(;) has back brace--& had bed board"];
at 000088 [notation from March 21, 1994: "back problems a
couple of years"]; id.
at 000092 [notation from March 9, 1993:
"Hx of lower back pain of longstanding; was issued 9" sacral belt"];
at 000096 [notation from November 5, 1992: "complains of
chronic back pain over longstanding period of time"]; id.
000118 [notation from January 5, 1990: "c/o backache"]; id.
, at 000121
[notation from September 25, 1989: "c/o backache"]; id.
, at 000130
[notation from June 20, 1988: "persistent low back pain unrelieved (with)
advil"; notation from June, 22, 1988: "persistent low back pain"]; id.
at 000135 [notation from July 28, 1987: "c/o Back pain"]; id.
, at 000142
[notation from August 6, 1986: "Chronic back pain since '79"]; id.
000148 [notation from April 19, 1985: "c/o LBP x 3-4 days(;) States has been
doing exercises--Advised re: lifting (,) Strenuous exercise while back sore"];
, at 000157 [notation from December 11, 1984: "complains of low back
pain x 2 days"]; id.
, at 000162 [notation from April 26, 1984: "c/o
, at 000166 [notation from December 5, 1983: "Patient requests
bed board due to low back pain"]; id.
, at 000167 [notation from December
1, 1983: "requests PA appt(,) wants Bed Board (,) low back pain"]; id.
at 000328 [notation from December 20,1996: "Presents (with) c/o back pain
radiating down (right) leg--has had persistent
Prior to January 6, 1997, claimant underwent five x-rays of his lumbosacral
spine because of his persistent complaints, the earliest on December 5, 1983
, at 000181) and the latest on December 24, 1996, barely two weeks
before the accident, on account of back pain radiating down his right leg
000177, 000331; see also
000178-180). The x-ray taken of claimant's lumbosacral spine on August 15, 1995
disclosed a narrowed L-5/S-1 disc space (id.
, at 000178). Although
claimant points to this x-ray report as objective evidence of his
accident-related injuries (claimant's trial memorandum at pp.9-10), the report
obviously predates the accident.
Next, prior to the accident claimant had worn a sacral belt (
., claimant's exh. 11 at 000071 [notation from June 8,
1996: "Back pain--has had a brace for 2 years . . . needs another"]) and
utilized a bed board (id.
, at 000304 [authorization for bed board, dated
January 11, 1983]) to alleviate his back pain; he had even undergone nerve block
, at 000317-318). In addition, at the time of the
accident claimant was, of course, returning from a physical therapy session for
his back; he testified that he was lying down on a bench in the van rather than
sitting up because of the pain that the ride was causing him; and he was taking
medication for his back condition, including Flexaril, a muscle relaxant
, at 000328). None of this is consistent with claimant's
protestations that his only back complaints prior to January 6, 1997 were
transient and mild and that he was, in fact, largely free of back pain until the
Finally, claimant emphasizes that after the accident he was consistently
restricted from lifting more than 20 pounds and received treatments (
., ultrasound) that he characterized as more intensive than he had
previously received. But the latter point has no apparent bearing on the
elements that claimant must prove to establish a serious injury within the
meaning of the 90/180-day rule. As for the 20-pound weight lifting work/program
restriction, claimant testified that before
his accident he performed
basic details around the dormitory, including cleaning windows and other
light-duty work as a porter and did not lift more than five to 20 pounds (see
, claimant's exh. 11 at 000058). Although claimant was evasive at trial
about whether he continued to work as a porter after the accident, at his
deposition he testified that he had:
Q: So you had light duty jobs?
Q: What type of light duty jobs were you doing at the facility after your
A: After the accident, like I said, I had like a little porter job where I do
little things around the dorm, wipe the windows or whatever, stuff like that.
[It] wasn't anything where I had to pick up heavy things. Most of the time I
was going back and forth to therapy. They even give [sic] me therapy within the
prison. Like I said, I have to ride the bike for maybe 20 minutes, a half-hour
Thus, claimant performed the same work/program duties at
the facility after the accident as he had performed before the accident (see
, Weaver v Derr
, 242 AD2d 823 [insofar as plaintiff returned to
work for a period of time following an accident and was able to perform her
regular duties with the exception of lifting, she was not precluded from
performing her usual and customary activities for purposes of the 90/180-day
rule]; Curry v Velez
, 243 AD2d 442 [on motion for summary judgment,
plaintiff failed to raise a triable issue of fact with respect to the 90/180-day
rule when she missed four weeks of work after her accident and was thereafter
only restricted from lifting heavy packages]).
Next, claimant's medical excuses (
, claimant's exh. 16) did not restrict his sports
activities. His alleged forbearance (cf.
, claimant's exh. 11 at 000044)
from participating in athletic activities (i.e., football, running,
weightlifting) subsequent to January 6, 1997 was self-imposed and not medically
In summary, claimant's "proof" of serious injury consists of nothing more than
conclusory, subjective assertions that he suffered accident-related injuries to
his back, which consequently greatly limited his activities. The testimony and
evidence demonstrate, at most, that while the accident may have exacerbated
claimant's pre-existing back condition for a
his daily activities were not as a result further inhibited to any notable
Based on the foregoing, the
Court finds that claimant has not proved by a fair preponderance of the credible
evidence that negligence on the part of the State proximately caused any
injuries that he may have sustained on January 6, 1997. In any event, claimant
has not made a threshold showing that he suffered a serious injury within the
meaning of the 90/180-day rule of the no-fault statute (Insurance Law §
5102 [d]). The Court therefore dismisses the claim, and directs the Chief Clerk
to enter judgment accordingly. Any motions on which the Court previously
reserved judgment or which were not previously decided are denied.
February 13, 2002
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims
Unless otherwise indicated, quotations are
from either the Court's trial notes or audiotapes of the trial.
In his contemporaneous memorandum of the
accident, Lucas estimated his speed at approximately 35 m.p.h. (claimant's exh.
Defendant correctly notes that claimant did
not allege aggravation of a pre-existing condition in his claim or bill of
, Behan v Data Probe Intern., Inc.
, 213 AD2d 439
[aggravation of a pre-existing condition is an element of special damages, which
must be specially pleaded and proven before recovery therefor can be