New York State Court of Claims

New York State Court of Claims

CADIZ v. THE STATE OF NEW YORK, #2002-013-512, Claim No. 98648, Motion No. (M-63510)


A correctional facility's van that is transporting prisoners may be a "police vehicle" engaged in an "emergency operation (Vehicle and Traffic Law §§132-a, 114-b). The higher standard of care established by Vehicle and Traffic Law §1104 does not apply unless the accident was caused by the driver's violation of one of the specifically enumerated rules of the road. Claimant failed, however, to prove a causal connection between his subsequent injury and the driver's ordinary negligence.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 29, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose from a highway accident that occurred on July 23, 1997, at approximately 9:30 a.m., under a covered portion of the Prospect State Bridge in Attica, New York. At the time of the accident, Claimant Harry Cadiz, an inmate of Wyoming Correctional Facility (Wyoming), was riding in a vehicle owned by the State and operated by a State employee. He, along with three other inmates who were also in the van, had been assigned to an inmate work crew to paint the outside of a local church. The passengers were not restrained by seat belts or any similar devices. As it approached the bridge, the top of the van struck a free-swinging beam that was suspended underneath the overpass. Seconds later, the van also made contact with a second beam as it exited the overpass.

Four principal issues were litigated in the trial of this action: (1) the standard of care applicable to the operation of this State vehicle and whether, if Defendant is correct as to that standard, Claimant proved that the van was operated in a reckless fashion; (2) whether the accident caused the injury that Claimant alleges that he suffered; (3) whether Claimant proved the existence of a serious injury under Insurance Law §5104 (the "no fault" law); and (4) whether the testimony of Claimant's medical expert should be taken
in toto (Motion No. M-63510 made returnable on the date of trial).

Applicable Standard of Care:

Defendant contends that the Department of Correctional Services (DOCS) van operated by Officer Rohauer was an "authorized emergency vehicle" and that it was engaged in "emergency operation" at the time of the accident. If this is the case, then Vehicle and Traffic Law §1104 applies and, as long as other statutory requirements are met, liability may not be imposed unless it is established that the operator of the vehicle acted with "reckless disregard for the safety of others."

Vehicle and Traffic Law §1104 exempts an "authorized emergency vehicle" from certain rules of the road when it is involved in an "emergency operation." Unless that vehicle is a "police vehicle or bicycle," however, the exemptions apply only when audible signals are sounded from the vehicle when at least one red light is displayed and visible from a distance of 500 feet. The van in which Claimant was a passenger was not operating warning bells or lights, but Defendant contends that these are not required because the DOCS van is a "police vehicle" and that because it was transporting prisoners, it was involved in an "emergency operation."

Vehicle and Traffic Law §132-a defines a "police vehicle" as "[e]very vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special duties." Vehicle and Traffic Law §114-b defines "emergency operation" as, among other things, "[t]he operation, or parking, of an authorized emergency vehicle," when the vehicle is engaged in, among other things "transporting prisoners." Thus, a vehicle owned by the New York City Department of Correction has been held to be a "police vehicle"
Klayman v City of New York, 130 AD2d 551, amended on other grounds 134 AD2d 408, resettled in part 142 AD2d 668), and a New York City police van engaged in transporting prisoners from a precinct to central booking has been held to be a police vehicle engaged in an emergency operation (Church v City of New York, 268 AD2d 382).
As stated above, however, authorized emergency vehicles involved in an emergency operation are exempted only from certain rules of the road by Vehicle and Traffic Law §1104. Such vehicles may:

1.Stop, stand or park irrespective of the provisions of this [rule];

2.Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

3.Exceed the maximum speed limits so long as he does not endanger life or property;

4.Disregard regulations governing directions of movement or turning in specific directions.[1]

It is not possible to characterize the accident in which Claimant was injured as resulting from improper stopping or parking, driving through a stop signal, exceeding maximum speed limits, or moving or turning in an irregular direction. Consequently, even if it is accepted that the DOCS van transporting prisoners to a work detail qualifies as a "police vehicle" involved in an "emergency operation," the higher standard of care imposed by Vehicle and Traffic Law §1104 is not applicable in this case.

Defendant does not attempt to argue that the manner in which Correction Officer Rohauer operated the vehicle was not negligent, and consequently the question of liability rests on the issues of whether Claimant's injuries were proximately caused by the accident and whether they constituted a "serious injury" for the purposes of Insurance Law §5104. Deciding either of these issues first requires a determination of whether the expert opinion testimony of Dr. Habib Sheikh may be considered.

Testimony of Dr. Habib Sheikh (Motion No. 63510):

Dr. Sheikh, a DOCS employee, provided medical treatment to Claimant following the accident. He was subpoenaed by Claimant to testify at trial and was asked to provide his expert opinion testimony as to the cause and severity of Claimant's injury. Relying on
McDermott v Manhattan Eye, Ear & Throat Hosp. (15 NY2d 20), counsel for Claimant contends that such testimony may be obtained from a treating physician because he is an employee of Defendant. Defendant has moved to preclude the use of such testimony, arguing that unless a treating physician is retained as an expert by the party seeking to obtain his opinion testimony, he need only testify as to his factual observations and treatment provided.
The general rule in New York is that "an expert witness can be subpoenaed to testify to facts within his or her knowledge and to physical observations, but cannot be compelled to give testimony concerning matters that require employment of the expert's expertise, education, judgment or opinion" (58A NY Jur 2d, Evidences and Witnesses, §752). Consequently, non-party treating physicians may be subpoenaed and questioned about their factual observations, but typically cannot be questioned as experts (
see, e.g., Waters v East Nassau Medical Group, 92 AD2d 893). In McDermott v Manhattan Eye, Ear & Throat Hosp. (supra), however, the treating physicians were defendants in a medical malpractice action, and in that situation the Court of Appeals held that the patient plaintiff could examine them "as freely and fully as he could any other qualified witness" (15 NY2d at 27). This was permitted for several reasons: because the doctors' knowledge of proper medical practice and awareness of any deviation from that standard were matters of "fact" within the context of that suit and further constituted "pertinent and relevant" information which, as parties, they were obligated to produce. In addition, the court observed that it is inherently difficult for malpractice plaintiffs to secure independent expert witnesses to testify against their medical colleagues. Physicians who are employed by the malpractice defendant physicians have also been required to provide expert opinion testimony, on the theory that they are agents of the defendant physician and/or that their knowledge of relevant facts constitutes "material and necessary" evidence needed for prosecution of the action (Hardter v Semel, 197 AD2d 846; Glass v Rochester General Hosp., 74 AD2d 732). There are limitations on this concept of "agency," however, even in the context of medical malpractice actions, as physician partners against whom no malpractice was alleged and who were no longer affiliated with the defendant at the time of trial, and physicians who served merely as consultants to the defendant medical group have not been required to offer opinion testimony (Cuccia v Brooklyn Medical Group, 171 AD2d 836; Piervinanzi v Bronx Cross County Medical Group, 244 AD2d 396).
None of the reasons given for the holding in
McDermott apply where, as here, the Defendant's compliance with appropriate medical standards is not at issue in the trial, where the physician's knowledge or awareness of any deviation from that standard in providing treatment to the patient is not relevant or pertinent to the underlying cause of action; and where there would be no impediment to Claimant's obtaining the services of an expert physician to testify on his behalf. Although the rule of McDermott is not necessarily limited to medical malpractice actions, the exceptions cited by Claimant all involve situations where the expert testimony obtained from a defendant or an employee of a defendant relates to issues that are central to the existence or non-existence of wrongdoing or breach of duty on the part of the defendant (Glasburgh v Port Authority of N.Y & N.J., 213 AD2d 196 [elevator expert employed required to testify in an action that appears to be based on alleged malfunction of elevator]; Lingener v State Farm Mutual Auto. Ins. Co., 195 AD2d 838 [defendant attorney and insurance claim representative required to testify in action based on legal malpractice action and mishandling of a claim]).[2] In the instant claim, the alleged wrong on which this claim is based -- negligence in the operation of a prison van -- is unrelated to Claimant's subsequent medical treatment and condition, and the expert testimony sought relates to an entirely different element, causation. Consequently, Defendant's motion to preclude is granted and any testimony of Dr. Sheikh, other than that commonly and properly obtained from a treating physician, is stricken and will not be considered.

Claimant's Injury:

Claimant testified that when he entered the van on the morning in question he sat on a single bench seat, with a row of seats in front of him and an area for equipment behind him. The seat was not equipped with a safety belt. At the time of the accident, he was looking straight ahead and observed that the van was approaching the bridge. When the van struck the first beam, he stated, "it was a strong impact and my head snapped back."[3]
Before he had a chance to catch his breath, the van struck the second beam. Claimant testified that his neck again snapped back and he felt pain shoot down his back. The van continued on for approximately 45 minutes to the original destination, and during this time Claimant experienced discomfort in his back, buttocks area and neck. Claimant made no complaints to the officer in charge, however, and proceeded to paint on the lower level of the building. Once he was active at the work, he no longer experienced discomfort and in fact felt "great" (Transcript, p. 30). He stated that he was not required to climb to a ladder or scaffolding in order to carry out his assigned work that day.
Claimant returned to the facility at approximately 2:40 or 2:45 in the afternoon and, by that time, he was again feeling a great deal of discomfort in his neck, back and buttock area. He immediately went to take a shower but was unable to finish, and it was then that he informed a guard that he had been injured and was experiencing pain. Claimant walked to the medical facility, about a block away, where he was seen by a nurse who gave him ibuprofen and Ben-Gay ointment. Despite using both of these medications, he continued to experience pain, now radiating down his leg, and was unable to sleep well. The following morning he went on sick call and was seen by another nurse and, later in the day, by a facility doctor, Dr. Sheikh. Dr. Sheikh prescribed more ibuprofen and indicated that some tests would be ordered for Claimant. Also on the day after the accident, Claimant and the other inmate passengers were interviewed by a sergeant and asked to recount details of the accident.

The following day, two days after the accident, he was again seen by Dr. Sheikh and within a day or two, after complaining that he "couldn't take" the pain (Transcript, p. 43), he was admitted to the facility hospital. He remained there for five or six days, receiving bed rest and medication administered by a nurse. He was sent for a CAT scan during this time and testified that, after the procedure was performed, Dr. Sheikh informed him that he had a bulging, or herniated, disc. He remained in the facility hospital for a few more days and then returned to his cell, with a different medication and a bed board to use while sleeping.

Subsequently, Claimant was examined by a neurosurgeon at Strong Memorial Hospital, again was told that he had a herniated disc, and, upon his transfer to Wende Correctional Facility two or three months after the accident, he was seen by a specialist who prescribed physical therapy and a stronger medication. He underwent an MRI and a myelogram, the latter of which he described as a painful procedure. Claimant described the pain as continuous, being helped only

temporarily by medication. He returned to Wyoming, where he received physical therapy, traction, heat and massage, and the use of a TENS (transcutaneous electrical nerve stimulation) unit. He testified at trial that he was continuing to experience pain in his lower back and down his left leg. He described the latter pain as "a lot of pins and needles on my calf area, the bottom of my foot, numbness" (Transcript, p. 56). Dr. Sheikh also prescribed a back brace, which Claimant was continuing to use at the time of trial. In 1999 Claimant was transferred to Wallkill Correctional Facility, where physical therapy was continued.
At the time of trial, Claimant testified that he was continuing to experience pain in his lower back and consequent limitation of movement. He stated that he cannot stand or walk for long periods of time. He continues to take a 400 mg. tablet of Motrin approximately once a day and to perform the stretching exercises he was taught in physical therapy. He has not returned to any physical labor and has a continuing physical restriction placed by a Dr. Mullen which requires that he do no heavy lifting or physical work.

Claimant related that about a month prior to the accident he had awakened one morning with back pain, from no cause that he could determine. He reported to the facility staff and was given medication, which caused him to feel virtually pain free almost immediately. He described the pain he felt at that time as different from the pain he felt after the July 23rd accident. On cross-examination, Claimant was asked about a 1995 entry in his ambulatory health record referencing a report that h had been lifting weights and felt a "clicking" in his back (Exhibit E).

Dr. Habib Sheikh, who had worked part time as a clinical physician at Wyoming since 1994, testified that he first examined Claimant on July 24, 1997 at the facility hospital, at which time Claimant stated that he had been involved in an accident the day before, one that caused "[s]udden jerky movement and some snap in the lower back and brought pain in the back as well as in the neck" (Transcript, p. 90). Dr. Sheikh examined him and found tenderness in the cervical and lumbar sacral region of the spine. He prescribed Motrin, a non-steroid anti-inflammatory drug, and Flexeril, a muscle relaxant, and gave him a cervical collar to wear. Four days later Claimant was again seen with complaints of increasing pain, pain radiating down the leg, and numbness of the lateral thigh. Claimant was also limping, which had not been observed at the time of the earlier examination. He was admitted to the infirmary for rest and continued on the same medication.

An emergency CAT scan was ordered and the radiologist's report of that procedure (marked as Exhibit 11)[4]
indicated that he had a suspected L-5/S-1 disc herniation; this agreed with Dr. Sheikh's own observation of Claimant's condition. He then referred Claimant to a neurologist and, based on that specialist's findings, ordered an MRI. The report from that procedure (marked as Exhibit 12) confirmed the existence of a herniated disc. A subsequent myelogram, performed in February 1998 and the report of that procedure (marked as Exhibit 13) suggested the same diagnosis.
Claimant's treatment continued to be essentially the same conservative approach, with the addition of a spinal brace and backboard and, on occasion, substituting Naprosyn for the Motrin. When Dr. Shiekh last examined Claimant in June 1998, there was some marked improvement: he reported that he felt better; he could walk better; and he was able to raise his leg more easily. He was continued on physical work restriction, relating to work involving the back primarily, since the cervical injury appeared to be virtually healed (Transcript, p. 116). Claimant was advised to continue the conservative therapy and to take the prescribed medications as needed.

Sergeant James Rohauer testified regarding the July 23, 1997 accident. He stated that only the top of the van was impacted by the swinging I-beam when it "just barely" failed to clear the van as he drove underneath the bridge (Transcript, p. 140). It caused some damage to the roof of the van and caused the antenna to break off (
see, Exhibits 2, 4). The impact with the second beam, which he described as a "scrape," inflicted no additional damage. Sergeant Rohauer stated that he did not regularly drive the prison van, but had swapped duties with another officer for the day. He estimated that at the time of the incident the van was traveling at approximately ten miles per hour. As was also indicated in the accident report which he completed (Exhibit 8), Sergeant Rohauer testified that the bridge was a narrow, old structure that could probably only accommodate one vehicle at a time. He was observing the car in front of him and also glanced in the mirror to make sure that the inmates, who were not shackled or belted, were sitting quietly. He might also have been talking to the inmates (Transcript, p. 162). He then looked down to see where the car was when there was a sudden, surprising noise. By the time he was in the middle of the 50-60 foot long bridge span, the inmates were laughing and teasing him about his driving. Realizing that he was going to hit a swinging beam whether he backed up or went ahead, he decided to proceed through the bridge slowly. "It touched the van again, but now it just scraped across, you know, like a squeegee or whatever (Transcript, p. 155). As soon as possible after getting past the bridge, he pulled over and stopped. He asked if everyone was okay and received only more laughter and teasing. When asked to describe his perceptions of the time of the initial impact, Sergeant Rohauer stated, "I hate to use the word impact, but -- yeah, there was a noise. I mean, the noise was worse than the impact, you know, that metal on metal sound."
Upon arrival at the church, all of the inmates walked off the van, still ribbing him, and they were able to complete their work without incident and, in fact, without a single complaint. The work involved painting the church, moving rocks on a driveway, and laying out a driveway. He recalled that at one point Claimant ascended a ladder in order to paint around a window. He recalled having a conversation with Claimant and one of the other inmates during the lunch break, but the topic of conversation did not relate in any way to the earlier incident or any after complaints of physical problems.

The final witness was Margaret Unger, a registered nurse employed at Wyoming who observed Claimant on July 23, 1997, and several days thereafter when he was an inpatient at the facility infirmary. She reported that he had few complaints, was able to move fairly fluidly, wore no cervical collar and at one point threw his head back to eat a packet of sugar. Claimant was recalled to the stand and testified that he remembered Nurse Unger and that she was the one to whom he had made complaints of feeling pain.


The weight of the credible evidence establishes, in my opinion, that Sergeant (then Correction Officer) Rohauer's operation of the prison van on the day in question was negligent. While it is understandable that he may not have been able to accurately estimate the height of his vehicle as driving prison vans was not a regular part of his job, he nevertheless failed to be aware of its height and to accurately assess whether it would be able to safely pass under the swinging metal beams on either side of the bridge.[5]
The evidence presented at trial also establishes that Claimant undoubtedly suffers from a limiting and painful back condition, the significant symptoms of which began either on the date in question or, perhaps, a month before. What is missing, however, is proof of the causal connection between the impact of the van against the metal beam and Claimant's physical condition.
Liability attaches to a tortfeasor only if it is proven that the Defendant has breached a legal duty to the Claimant and that that breach is a substantial cause of the events which produced the injury (
Boltax v Joy Day Camp, 67 NY2d 617, 619; Perez v New York Tele. Co., 161 AD2d 191, 192). Liability may not be based on speculation alone (Zuckerman v City of New York, 49 NY2d 557, 562).
For reasons discussed above in connection with Defendant's motion to preclude, there was no expert medical testimony to establish that, within a reasonable degree of medical certainty, the effect of the van's impact with the steel beam would constitute a proximate cause of Claimant's subsequent pain and diagnosis of a herniated disc. Nor is this a case where the natural consequences of the State's negligence would be an injury of this type, so that it is possible for the fact finder to draw the necessary conclusions from everyday knowledge and experience (
see, Shaw v Tague, 257 NY 193; Esposito v Jenson, 229 AD2d 951; Ingleston v Francis, 206 AD2d 745). Claimant's description of the severity of the impact from the accident is simply not credible in light of the physical evidence showing rather minimal damage to the top of the large van, the undisputed fact that the metal beam was swinging and not fixed rigidly in place, and the testimony of the van's driver as to the degree of impact he experienced and the reaction of the inmate passengers. Even if I were to credit Claimant's account of his body's reactions to the impact, however, it would require expert medical testimony to connect that type of trauma, focused on the area of his neck, to a subsequently diagnosed injury in the lumbar-sacral area of his spine.
It is perhaps understandable that Claimant would attribute the development of his significant medical symptoms with the most memorable or unusual event that happened earlier that day.
Post hoc, ergo propter hoc (roughly translated as "it happened before, therefore it caused") is a classic logical fallacy, however, and "[r]easoning based upon mere sequence or upon the theory of post hoc ergo propter hoc rests upon an insecure basis (Matter of Gresser v O'Brien, 146 Misc 909, 921; see also, Leone v City of Utica, 66 AD2d 463, 472, affd 49 NY2d 811; Feder v Banker's Trust Co., 133 Misc 2d 659, 661). Assuming that Claimant's disc condition was caused by some outside trauma, it could have been events in the far past which remained asymptomatic until July 1997, or possibly a month before. In fact, it would be just as reasonable to conclude that the extended period of standing, reaching, and (possibly) climbing a ladder that Claimant experienced that same day while painting the church was as likely a cause as the minor jolt he received while riding in the van. "Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Bernstein v City of New York, 69 NY2d 1020, 1021-1022, quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7).[6]
Although Claimant proved that the State van in which he was riding was operated in a negligent manner and also established that, at approximately the same time, he began to experience symptoms of a significant medical back problem, he failed altogether to prove a causal connection between the State's negligence and that physical condition. The Chief Clerk is directed to enter judgment dismissing the claim.

All other motions not heretofore ruled on are now denied.


April 29, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]It has been noted that these exemptions from the "rules of the road" are narrower and more limited than the exemption from all provisions of Title VII of the Vehicle and Traffic Law (except of laws relating to driving under the influence of alcohol or drugs) that has been granted to vehicles and equipment actually engaged in work on a highway or "hazard vehicles" as defined in Vehicle and Traffic Law §117-a or by the companion provision, Vehicle and Traffic Law §1103 (see, Riley v County of Broome, 95 NY2d 455, 468; Gawelko v State of New York, 184 Misc 2d 581; Cottingham v State of New York, 182 Misc 2d 928, 942).
  2. [2]In Maser v County of Onondaga (90 AD2d 970), an engineer employed by the defendant was required to give expert testimony. The decision does not reveal the basis of the lawsuit against the county, and neither party has provided that information to the Court.
  3. [3]All quotations are from the trial transcript unless otherwise noted.
  4. [4]Defendant's objection to the admission of Exhibits 11, 12 and 13 was withdrawn when it was determined that they were part of the certified medical record, introduced into evidence as Exhibit 7.
  5. [5]I do not agree with the Claimant's characterization of Rohauer's actions in proceeding ahead and striking the second beam as "reckless." Given his other options at the time -- stopping underneath a narrow bridge with cars possibly coming in both directions, or reversing and backing into the traffic behind him and inevitably striking the same beam with the rear of the van -- going ahead and encountering the second bar with the already dented front of the van was in all likelihood the most prudent course of action he could have taken.
  6. [6]In light of this ruling, it is not necessary to determine whether a herniated disc would satisfy the "serious injury" threshold of Insurance Law §5102(d) (see, Lesser v Smart Cab Corp., 283 AD2d 273, 274 [question of fact for the jury]; Noble v Ackerman, 252 AD2d 392, 394 ["a herniated disc does not per se constitute serious injury"]).