New York State Court of Claims

New York State Court of Claims

CANTEEN v. THE STATE OF NEW YORK, #2001-001-531, Claim No. 97934


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Adam Thompson, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

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 ditch.[1]

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.
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.,[2]
given what he remembered about the weather and his many trips on this road; the posted speed limit is 55 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 road.

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. 6).
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 (
id.). 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;
see also, 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 (id.).
I. Discussion and Findings
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" (
id., 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"; id., 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 pp.6-8).
Based on the testimony and evidence adduced at trial, the Court finds as follows:

(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 (
see, 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 altogether.
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 822).
(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, 235 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 (
see, e.g., 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"]; id., 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"]; id., at 000096 [notation from November 5, 1992: "complains of chronic back pain over longstanding period of time"]; id., at 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., at 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"]; id., 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 LBP"]; id., 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 complaints"]).
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 (
id., 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 (id., at 000177, 000331; see also, id., at 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 (
see, e.g., 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 injections (id., 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 (id., 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 accident.
Finally, claimant emphasizes that after the accident he was consistently restricted from lifting more than 20 pounds and received treatments (
e.g., 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 also, 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?

A: Yes.

Q: What type of light duty jobs were you doing at the facility after your accident?

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 or so.

Thus, claimant performed the same work/program duties at the facility after the accident as he had performed before the accident (see also, 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 (
see, e.g., 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 indicated.
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 time,[3]
his daily activities were not as a result further inhibited to any notable degree.
II. Conclusion
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
Albany, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, quotations are from either the Court's trial notes or audiotapes of the trial.
[2]In his contemporaneous memorandum of the accident, Lucas estimated his speed at approximately 35 m.p.h. (claimant's exh. 7).

[3]Defendant correctly notes that claimant did not allege aggravation of a pre-existing condition in his claim or bill of particulars (see, 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 allowed]).