New York State Court of Claims

New York State Court of Claims

GOUGER v. THE STATE OF NEW YORK, #2002-007-585, Claim No. 101695


Claimant was a passenger in a State van that was involved in a single vehicle accident. Claimant awarded $275,000.00

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):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 27, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Late in the evening of February 2, 1999, Robert Roy, who was then the junior varsity basketball coach at the State University of New York at Plattsburgh, commonly referred to as Plattsburgh State, was operating defendant's 1998 Ford van in an easterly direction on State Route 190 in the Town of Ellenburg, Clinton County, when an accident giving rise to the present claim occurred. Earlier on the accident date, Mr. Roy had driven six Plattsburgh State junior varsity basketball players, including claimant, from Plattsburgh to Canton, St. Lawrence County, to participate in a junior varsity basketball game against Canton Tech. Approximately two miles after the subject van had passed the scene of a serious automobile accident on Route 190, Mr. Roy lost control of the van, it crossed the center line of the highway, struck a guide rail on the north side of the highway, apparently became airborne, slid approximately 84 yards on its left side along the paved portion of the highway and came to rest on the highway's south shoulder. Claimant and several other junior varsity basketball players were injured.

Mr. Roy appeared candid and forthright in describing his recollection of the events of February 2 and the early morning hours of February 3. Roy could not remember the time that he and the junior varsity basketball players left Plattsburgh in the van or the time that they arrived at Canton. He recalled freezing rain on the trip to Canton, testified that his group had arrived somewhat late because of the weather conditions and that the team had an abbreviated warm-up before the basketball game. He acknowledged that his father, who had attended the game, advised him "to be careful"[1]
in driving back to Plattsburgh. After leaving Canton, Roy and the basketball players that he was transporting back to Plattsburgh stopped at Potsdam for pizza before continuing their journey. Roy could not recall the weather conditions between Canton and Potsdam or whether freezing rain existed on the highway. He estimated that the subject accident occurred about 60-65 miles from Canton.
Importantly, a significant event came to Roy's attention a short distance west of the scene of the subject accident. As Roy was driving along Route 190, he observed and passed by the scene of a motor vehicle accident. He noticed ambulances and fire trucks along the highway and an automobile off in a wooded area to his left. Although he testified that he did recollect the condition of the paved portion of Route 190 before he reached the scene of the first accident, he advised that based upon the accident scene that he had observed, he believed that the roadway was slippery. When asked whether he had applied the brakes of the van after he left the scene of the first accident to determine the road conditions, he replied that he could not recall. He did believe, however, that a vehicle was proceeding ahead of him as he passed by the accident scene.

Roy estimated that he was proceeding in the van at a speed of 55 m.p.h. before he observed the first accident and believed that he thereafter reduced his speed since he assumed that the highway ahead was slippery. In response to questioning by claimant's counsel, he stated that black ice caused him to lose control of the van. He believed that the van was proceeding uphill on a slight grade at a speed of less than 55 m.p.h. when he lost control. His first warning of an accident that was about to occur was when one of the basketball players said, "Oh, Oh" or similar words. When he noticed that the van began to skid to the left side of the roadway, he removed his foot from the van's accelerator. He was unable to recall whether he told the investigating State Trooper at the accident scene that he had lost control and over-corrected the steering mechanism of the van. He testified that he had not applied the brakes of the van before it struck a guide rail on the north side of the highway. Roy testified that after the van hit the guide rail it bounced across the road, became airborne and tipped onto its left side. He recalled that he was talking to claimant about a player from claimant's high school team immediately before the accident.

Initially, claimant's counsel called State Trooper Bernard Bullis, the officer who investigated the subject accident. Trooper Bullis, a 10-year veteran of the Division of State Police, estimated that he has investigated 100-150 motor vehicle accidents. Like Roy, Trooper Bullis was quite credible and honest in testifying as were claimant, his mother and a grandmother. Trooper Bullis had served on road patrol during much of his seven years as a trooper before the date of the accident giving rise to the present claim. Trooper Bullis testified that he had begun work at 3 p.m. on February 2 and was on road patrol on State Route 11 near Ellenburg, Clinton County when he received a radio call about 10:30 p.m. concerning a motor vehicle accident involving two correction officers on Route 190. He recalled that he was dispatched to the accident scene to assist a younger trooper who had been "cut loose" that very day from his field training officer.

As Trooper Bullis entered upon Route 190 after leaving what is commonly called Ellenburg Corners, he proceeded about three miles to the scene of the first accident. As he drove along Route 190, he wondered why an accident had occurred since the highway was rather straight. He tested his brakes "a little bit" and noticed that his troop car skidded somewhat. He then proceeded at a lower rate of speed. When he emerged from his troop vehicle, he felt "black ice," which he described as a layman's term for pavement being covered with clear ice that "one really can't see." He described the motor vehicle accident as a serious one and remained at the accident scene about one and one-half hours. He recalled that at least two ambulances, two or three fire department trucks and some Department of Transportation vehicles were at the scene. While at the first accident scene, he was called about 12:00 midnight and dispatched to the scene of the subject accident, which was about two miles east of the first accident that he had investigated. He acknowledged that the subject accident had occurred before midnight on February 2. Especially significant concerning the issue of liability is the testimony of Trooper Bullis that 10 to 20 vehicles had passed the scene of the first accident and proceeded in an easterly direction while he was present. Although he could not recall having seen the subject van specifically while he was assisting in the investigation of the first accident, the van necessarily passed by him.

Trooper Bullis testified that he had no difficulty in proceeding to the scene of the subject accident since he had adjusted the speed of his troop car to the existing conditions. He observed intermittent icy conditions. Upon arriving at the scene, the trooper noticed at least one ambulance and one fire department vehicle and further observed that the subject van was resting on its driver's side on the south side of the highway. He parked his troop car about 80 yards west of the accident scene to allow for emergency vehicles that might appear. As he emerged from his troop car, he also noticed "black ice."

Trooper Bullis testified that when he interviewed Roy relative to how the accident had occurred, Roy advised him that somehow he had lost control of the van on an incline portion of the highway and "over-corrected." Roy also told the trooper that he had been proceeding below the 55-m.p.h. speed limit, but the trooper could not recall whether Roy advised him of an exact speed. The trooper testified that it was evident that the van had struck the guide rail on the north side of the highway. After placing flares in the highway, the trooper checked out the guide rail. He observed guide rail wires being down and estimated about 20 to 25 feet of damage to the guide rail. Although he could not state the exact distance of the guide rail from the edge of the pavement of Route 190, he testified that the standard distance on highways is approximately six to seven feet off the white line customarily painted on the edge of a roadway. Based upon his observation that there were no continuous scratch marks in the ice for the first 10 to 15 feet after the van had struck the guide rail, the trooper, like Roy, concluded that the van had become airborne after it had struck the guide rail. The trooper advised that the van had slid on its driver's side and crossed over the center line of the highway a second time before coming to rest off the east side of the paved portion of the highway. He did not recall talking to claimant at the accident scene but secured the names of all the passengers in the van.

Following redaction of one item or block on the Police Accident Report (MV-104A) prepared by Trooper Bullis the report was introduced into evidence as Claimant's Exhibit 1. Roy agreed with the path of the van as shown on the report, and the trooper's accident description reads as follows:

"V-1 eastbound when lost control and crossed center line striking guiderail on north side of road becoming air-born [sic] and landing on driver's side of V-1. Same slid 84 yds across roadway exiting south shoulder and coming to rest on side of roadway."

Claimant is a 22-year-old college senior. At the time of the trial he was performing student teaching. He had transferred to Plattsburgh State as a sophomore in 1999 and became a member of what was then the junior varsity basketball team. He testified that along with five other teammates he rode in the subject van from Plattsburgh to Canton to play basketball against Canton Tech. Although he did not remember the weather or road conditions on the trip to Canton, he did recall that he and his teammates had arrived just before the game was scheduled to begin. He had not experienced any major health problems before February 2, 1999.

Claimant testified that following the basketball game, Roy drove the van and the basketball players from Canton to Potsdam where a stop was made to have pizza. Claimant related that he could not recall the weather and road conditions between Canton and Potsdam and thereafter to the scene of the subject accident. He remembered seeing the first accident scene and certain lights and believed that he had been seated two seats behind the driver, Roy, during the return trip to Plattsburgh. He stated that he did not know the speed of the van immediately before the subject accident and recalled that he had been talking to Roy about basketball and a basketball friend when he felt the back tires of the van skidding and heard someone shout, "Watch out." He testified that the van crossed to the "other side of the road" and struck a guide rail. Claimant related that before the van struck the guide rail, he was sitting next to a window and attempted unsuccessfully to grab the seat ahead of him with his hands. After the van hit the guide rail, it flipped over and slid down the paved portion of the highway. Claimant remembered "people saying things" but could not remember any specific statement other than someone exclaiming, "hold on." He could not remember Roy saying anything. He testified that the window next to where he had been sitting broke and his left arm went out the window. As the van slid on its driver's side down the highway, claimant's left arm was dragged along the pavement. He recalled that his right hand also had hit the surface of the pavement. Not surprisingly, claimant was unable to state how far the van slid along the highway, and his only knowledge in that regard was based upon his reading a local newspaper subsequently. He could not recall Roy saying anything following the accident. He further testified that after the van finally came to rest, he climbed out of the van through its back door. He believed that the van was completely off the paved portion of the highway.

The issue of liability where injuries occur as the result of a motor vehicle skidding or crossing the center line of a highway in New York is often problematic. In the leading case of
Pfaffenbach v White Plains Express Corp. (17 NY2d 132), the Court of Appeals concluded that a prima facie case of negligence was presented when defendant's truck, traveling along a highway when it was raining or snowing and the highway was slippery, crossed into the opposite lane and struck the car in which plaintiff was riding. Plaintiff was injured and defendant gave no explanation for the happening of the accident[2] (accord, Coury v Safe Auto Sales, 32 NY2d 162; Dubois v Vanderwalker, 245 AD2d 758; Tomaselli v Goldstein, 104 AD2d 872; Novis v Sheinkin, 60 AD2d 623).
Dubois v Vanderwalker, supra, the Third Department instructed (p 760):
"It is also ‘well established that evidence of skidding and leaving the traveled portion of the highway * * * is some evidence of negligence and is sufficient to create an issue of fact for the jury to resolve' (Jump v Jump, 69 AD2d 947, 948, affd 49 NY2d 783; see, Pfaffenbach v White Plains Express Corp., 17 NY2d 132; Vadala v Carroll, 91 AD2d 865, affd 59 NY2d 751). That being the case, the mere happening of the collision outside of defendant's authorized lanes of travel created an issue of fact, regardless of the persuasiveness of defendant's explanation (see, Noia v DeRosa, 78 AD2d 789, 790, affd 54 NY2d 631; Fagle v Bell, 65 AD2d 887, 888)."

In the final analysis, the factual evaluation of the evidence relative to the deviation of a motor vehicle from its normal course of operation is for the jury and, of course, in the Court of Claims for the court. The evidence of Roy's negligence when the accident occurred cannot be doubted. He was quite aware of the weather and road conditions on the trip from Plattsburgh to Canton. Indeed, he and the six junior varsity basketball players that he was transporting in defendant's van had arrived at Canton somewhat later than the usual time of arrival for a basketball game. His knowledge of the weather and road conditions on the way to Canton constituted a forewarning of what he might encounter on the return trip to Plattsburgh later in the evening. Although he testified that he could not recall whether freezing rain existed from Canton to the point of the scene of the accident on Route 190 involving two correction officers, he acknowledged that in passing the first accident scene, he believed the roadway was slippery. While he testified that he reduced his speed to below 55 m.p.h., it is the finding and conclusion of the court, after taking into consideration all the facts and circumstances existing at the time of the subject accident, that Roy was negligent in the operation of the 1998 Ford and was operating the van at a speed greater than was "reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing" in violation of section 1180(a) of the Vehicle and Traffic Law. The court further finds and concludes that Roy failed to keep right in violation of section 1120(a) of the Vehicle and Traffic Law and that Roy's negligence was a proximate cause of the subject accident and the permanent injuries sustained by claimant. Claimant was free from any culpability.

In reaching its conclusion concerning Roy's negligence, the court credits the testimony of Trooper Bullis that after he had reached the scene of the first accident on Route 190 at approximately 10:30 p.m., 10 to 20 motor vehicles passed by such accident scene while proceeding in an easterly direction before the subject accident occurred shortly before midnight. The court also credits the trooper's testimony that no accidents other than the two described accidents had occurred on Route 190 and that Roy had advised the trooper that as he lost control of the van, he over-corrected the steering mechanism of the van. The court particularly observes that Roy, to his great credit, made no effort to fabricate facts surrounding the happening of the accident. Roy's candor and honesty were quite evident to the court when he testified. The court recognized Roy's sorrow that the subject accident occurred while he was operating a motor vehicle with young college athletes in his care.

Claimant suffered no loss of consciousness as a result of the accident. Although his shirt was torn and he saw blood on his left elbow, he was afraid to examine his elbow. The court harbors no doubt that claimant was in shock following the accident. He was placed on a stretcher and transported via ambulance to the Champlain Valley Physicians Hospital Medical Center at Plattsburgh. He stated that he did not feel any pain until he arrived at the hospital. Upon arriving at the hospital early in the morning of February 3, 1999, claimant was examined by an emergency room physician. Claimant recalled that after the "shock" wore off, he had considerable pain and still experiences pain in his left elbow occasionally. Irrigation and wound excision of ground-in road dirt, glass and debris was accomplished initially. Claimant was given strong pain medication and antibiotics. Fortunately, X rays revealed that his left elbow had not been fractured.

After claimant's elbow wound was permitted to drain for several days, claimant was taken to an operating room on February 6, 1999 and surgery was performed by Dr. Robert Murphy, a plastic surgeon. Skin was harvested from claimant's left forearm and split thickness skin grafting using 100 square centimeters of mesh skin was accomplished. Claimant was fearful concerning how his arm would look and did not examine it for almost a month. He also revealed that he had felt depressed while in the hospital. He had arrived at Plattsburgh State only a few weeks before he was injured.

During the course of the trial claimant exhibited his left elbow and arm to counsel and the court. The court observed that dark discoloration exists in the area of claimant's left elbow and substantial scarring is present in the inner aspect of claimant's left forearm, the donor site. When claimant's right and left elbows were compared, a markedly visible, depressed area appeared behind his left elbow. Claimant's primary injury relates to a diminution of his ability to extend his left elbow and arm. While claimant's ability to bend or flex his left elbow appeared unimpaired, a significant limitation of extension of his left elbow and arm was evident. Claimant testified that he still has pain at times when he is required to straighten his left elbow and arm during certain activities. He also noted that shortly before the trial a piece of glass had worked its way out of his elbow.

Although defendant, in attempting to minimize claimant's damages, has placed emphasis on the fact that claimant played on the varsity basketball team at Plattsburgh State following the motor vehicle accident and the injury to his left elbow and arm, claimant is right-handed and thus shot a basketball with his right hand. Anyone who is knowledgeable with respect to the game of basketball can understand that although claimant cannot fully extend his left elbow and arm, he nevertheless was able to play basketball in light of his obvious athletic ability.

Claimant did not attempt to exaggerate the nature and extent of the injury to his left elbow and arm and appeared very candid. The court gained the definite impression that claimant actually tended to minimize the extent and sequella of his left elbow and arm injury. Claimant is not a malingerer and has carried out his customary activities without substantial complaints rather than attempting to build a case for personal gain.

Like all witnesses in the lawsuit, claimant's mother, Terralyn Gouger, and his grandmother, Barbara Williams, were sincere and credible witnesses and were able to recognize and comment on the pain being experienced by claimant during his hospitalization.

Following the testimony at trial held on February 15, 2002, counsel for the respective parties, in accordance with their agreement before trial and a trial stipulation, took a videotape deposition of Dr. Albert Shaheen on February 19, 2002 and submitted the videotape for the court to review. Dr. Shaheen, a board certified and diplomate of plastic and reconstructive surgery who practices in Utica, is eminently qualified. He has examined claimant three times. His first examination occurred on July 20, 1999 after claimant had returned home at the end of the 1998-1999 academic year at Plattsburgh State. He reviewed claimant's hospital records and testified that claimant had sustained an open wound of his left elbow and a loss of skin, muscle, soft tissue and bone. As a result of his initial physical examination, Dr. Shaheen concluded that the accident had resulted in the grinding away of a significant amount of the tissue surrounding claimant's left elbow. He specifically testified that claimant had sustained a 30-degree loss of extension, as opposed to flexion, of his left elbow as the result of claimant's left arm being dragged along the pavement of the highway as the subject van slid on its driver's side as previously described. He also testified that claimant had a permanent scar and deformity in the area of his left elbow. He related that claimant had sustained a loss of function because of the loss of soft-tissue padding that provides protection for the elbow bone.

Dr. Shaheen concluded that the loss of extension in claimant's left arm definitely constituted an impairment of claimant's athletic ability and affected his daily activities. He also advised that any bump to claimant's left elbow is much more painful than a similar bump to his right elbow and that the scarring to claimant's left arm is permanent. He stated that when claimant rests his left arm on a table, it is sensitive and that the area of the skin graft is unstable and more likely to traumatize. Dr. Shaheen explained that the skin around claimant's elbow has no sweat glands and tends to crack and abrade. He has recommended further surgery for essentially cosmetic purposes but has acknowledged that a risk of an untoward event is always present when anesthesia is given. Understandably, claimant is unwilling to undergo further surgical procedures. Since the record is barren of any evidence that further surgical procedures or operations would cure or reduce the extent of claimant's permanent limitation of extension of his left arm because of his elbow injury, claimant cannot be required to submit to surgery to minimize his tort damages (
see, PJI 2:325). To the extent that defendant contends that claimant should have had further cosmetic operative procedures on his left elbow defendant failed in its burden of proving that claimant had failed to mitigate his damages (Cornell v T.V. Dev. Corp., 17 NY2d 69).
When Dr. Shaheen next examined claimant in November 1999, his findings were essentially the same as those on the date of his first examination. Additional healing had occurred and he again encouraged claimant to have cosmetic surgery. He testified without objection that the injury to claimant's left elbow area increased the likelihood of the development of arthritis. He expressed clearly that as a result of the subject accident claimant had sustained a permanent, severe injury and the permanent loss of part of the function of his left elbow and a significant limitation of use of his left arm. Dr. Shaheen last examined claimant on May 25, 2000. He advised that he noticed a module on claimant's left elbow that may be a neuroma and concluded that his opinion that claimant had suffered a 30-degree loss of function was a conservative estimate. Interestingly, like the court, Dr. Shaheen reached the conclusion that claimant seeks to minimize the extent of the injury to his left elbow and arm. He stated kindly that claimant attempts to be a "Mr. tough guy so to speak."

Although defendant's counsel requested during the course of the trial that the court draw an unfavorable inference from the failure of counsel to call Dr. Richard Murphy as a witness (
see, PJI 1:75), the court rejected the request. Although an unfavorable inference may be drawn under certain circumstances for the failure of a litigant to call a treating or examining physician (see, e.g., Mashley v Kerr, 47 NY2d 892; Ghize v Kinney Drugs, 177 AD2d 784), it would be patently and manifestingly unfair for the Court to draw such an inference in the present case. Dr. Murphy indeed initially treated claimant, who had arrived in the Plattsburgh area shortly before the subject accident, and Dr. Murphy performed certain surgery. Dr. Murphy, however, did not treat or examine claimant thereafter. Instead, claimant saw Dr. Shaheen, another plastic surgeon, who testified that he was a friend of claimant's grandfather. It was Dr. Shaheen who had the best knowledge of the physical condition of claimant's left arm and elbow following the initial surgery by Dr. Murphy since he had examined claimant three times after the subject accident.
Claimant's injury to his left elbow was obvious and his hospital records were introduced into evidence and provided the requisite medical information concerning claimant's initial care and treatment. Unless claimant were required for some reason to submit to a physical examination by Dr. Murphy before the trial to seek an opinion as to claimant's then condition, Dr. Murphy would have no knowledge of claimant's condition when claimant was examined on three separate occasions by Dr. Shaheen following the conclusion of Dr. Murphy's treatment. Moreover, in light of the skyrocketing cost to litigants in producing physicians to testify at trial, the Court is simply unwilling, especially considering the circumstances of the present claim, to draw the unfavorable inference requested by defendant because claimant produced only one physician to testify. Finally, the Court notes that defendant had the absolute right to have claimant examined by a physician of its choice but declined to avail itself of such right.

The Court finds that claimant suffered a serious injury within the meaning of the no-fault law (Insurance Law § 5104[a]). Specifically, the Court finds that claimant has suffered a permanent, partial loss of use of his left elbow and arm, a significant limitation of use of his left elbow and arm, and permanent consequential limitation of use of his left elbow and arm.

Claimant is awarded $175,000.00 for past pain and suffering and $100,000.00 for future pain and suffering.

The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

It is

ORDERED that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

March 27, 2002
Plattsburgh, New York

Judge of the Court of Claims

[1] All quoted references are to the court's trial notes unless otherwise indicated.
[2] Earlier cases requiring some direct proof of negligence even though a motor vehicle had crossed or skidded into the opposite lane of travel, such as Galbraith v Busch, 267 NY 230 and Lahr v Tirril, 274 NY 112, have been effectively overruled by Pfaffenbach (see, 1A PJI 379).