New York State Court of Claims

New York State Court of Claims

RAYMOND v. STATE OF NEW YORK, #2002-018-200, Claim No. 89747


Synopsis


Evidence is insufficient to indicate that the troopers were not adequately trained to handle intoxicated prisoners; and further, there was insufficient evidence to substantiate lack of supervision of the claimant. Claimants failed to meet their burden of proof and the claim is hereby dismissed.

Case Information

UID:
2002-018-200
Claimant(s):
HAROLD F. RAYMOND, JR. and DONNA RAYMOND
Claimant short name:
RAYMOND
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
89747
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LAFAVE & ASSOCIATES
By: PATRICK J. HIGGINS, ESQUIRE of Counsel
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: ED J. THOMPSON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 7, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants seek damages for the alleged negligence of the New York State Troopers after they arrested him for driving while intoxicated (hereinafter DWI) in the early morning hours of July 23, 1993. While in their care and custody claimant fell, sustaining severe and life-altering injuries. This trial addressed both liability and damages. The Court finds the facts as follows:[1]

On July 22-23, 1993, two State Troopers, Heidi Abrial and Matthew Sullivan, were assigned to patrol duties out of the Remsen barracks which is approximately 10 miles south of Boonvillle. The two troopers were working the 11:00 p.m. to 7:00 a.m. shift. At approximately midnight, Troopers Abrial and Sullivan met Patrolman James Galler of the Boonville Police Department and Auxiliary Officer Daniel Maher[2] at a local convenience store where they were getting coffee. There was a conversation among them that a local tavern, The Pub, was busy that night which presented the possibility of DWI arrests. The State Troopers, as Trooper Abrial testified, worked closely with the Boonville Police.

Since becoming a State Trooper in 1986, Trooper Abrial had made over 100 DWI arrests as of July 1993. Boonville Officer Galler had been employed by the Boonville Police Department since 1989. He received training at Mohawk Valley Law Enforcement Training Center which included training to determine whether a person is intoxicated. Officer Maher was an Auxiliary Officer, an untrained observer who assisted the police with such things as traffic control during parades. Trooper Sullivan received training at the New York State Police Academy, but no evidence was presented regarding Trooper Sullivan's experience.

After leaving the convenience store, these officers proceeded to patrol near The Pub. At approximately 2:27 a.m., on July 23, 1993, the troopers heard tires squeal, and they stropped a vehicle which was being driven by one Corey Mathis. Boonville Officers Galler and Maher pulled up behind the State Police car and while Trooper Sullivan gave Mr. Mathis field sobriety tests, Trooper Abrial conversed with the Boonville officers. A few minutes later, Trooper Abrial saw a vehicle pass with one taillight out. The vehicle failed to slow down at a yield sign and then crossed the center line of the road. Trooper Abrial asked Officer Galler to stop the vehicle for her. Officer Galler complied and shortly thereafter notified Trooper Abrial by radio that he had stopped the vehicle. In the meantime, Trooper Sullivan arrested Mr. Mathis and placed him in the patrol car. Officer Galler radioed the troopers a second time requesting that they expedite their arrival to the location of the second stop.

When Officer Galler stopped the second vehicle, he approached and asked for the driver's license and registration. The driver was Harold "Dewey" Raymond (hereinafter claimant).[3] Officer Galler asked the claimant to step out of the vehicle. As he did so, the claimant stumbled forward and Officer Galler prevented him from going into the road. On cross-examination, Officer Galler said he didn't know if the claimant would have fallen as he exited the vehicle, but he stepped in front of claimant to prevent him from entering the roadway. He had to step in front of the claimant a couple of times to prevent him from walking into the road as claimant was upset and did not want to be arrested. Officer Galler described claimant as having an odor of alcohol on his breath, impaired speech and glassy eyes and noted that claimant had poor balance. He appeared to be very intoxicated.

Initially, claimant wanted to tell Officer Galler his story, saying he didn't want to be arrested, that Galler knew him and should let him go. Officer Galler listened to him for awhile and then attempted to place handcuffs on claimant. Claimant put his hands behind his back and after attaching one cuff, claimant spun around and kept the other hand in front of him. Officer Galler had to use minimal force to get the cuffs on him. Claimant was uncooperative and loud, he refused to follow Officer Galler's instructions on numerous occasions, specifically refusing to stand where Officer Galler directed him, trying to walk into the road; refusing to take sobriety tests or the alcosensor test, and refusing to get into the police vehicle. While Officer Galler called for the troopers, claimant continued to yell, scream and try to walk into the road which Officer Maher prevented him from doing. Officer Galler walked with claimant over to the side of the road as he protested being arrested; eventually they walked back to the police car and claimant sat down in the backseat.

It was about 2:40 a.m. when the troopers arrived at the scene on West Street in Boonville, where claimant had been stopped. The claimant was in the backseat of the Boonville police vehicle. Trooper Sullivan stayed in the trooper vehicle with Corey Mathis while Trooper Abrial got out and spoke with Officer Galler. Officer Galler told Trooper Abrial he radioed them a second time because claimant was becoming combative and unruly. Officer Galler said he told Trooper Abrial at the scene that claimant was intoxicated and staggering. Trooper Abrial opened the door of the Boonville vehicle and attempted to speak with claimant. He was spitting, swearing and calling her names. Claimant was cursing at Trooper Abrial the entire time she had contact with him. The claimant did not respond to her inquiries about his origin and destination, so Trooper Abrial read him Miranda and DWI warnings and placed him under arrest for DWI at about 2:45 a.m.

After many minutes of asking, claimant did give Trooper Abrial his home telephone number so someone would retrieve claimant's car. The officers could not leave the vehicle because there was a dog in it which claimant said would attack if he were commanded to do so. Trooper Abrial called the Marcy barracks requesting they call claimant's wife to pick up the car and dog. Trooper Abrial was told it would take approximately 20 minutes for Mrs. Raymond to arrive.

While in The Pub, Corey Mathis, the Troopers first DWI arrestee, overheard claimant say he was carrying a jackknife. Mr. Mathis informed Trooper Sullivan of this when they arrived at the West Street location. Upon hearing this, Trooper Abrial asked Officer Galler is claimant had been searched. Claimant had not been searched, so the officers assisted him out of the car. Claimant stepped out of the vehicle "without any problem"[4] but kept spinning in circles, screaming and yelling, when the officers tried to search him. He did not stumble or fall but was swaying during the search. Trooper Abrial held one elbow as they conducted a pat search. A small fishing knife was found in his back pocket. Trooper Abrial removed the knife and claimant was asked to return to the police vehicle. He refused to get back into the vehicle, continued to be belligerent and attempted to kick one of the male officers. Trooper Sullivan recalled claimant tried to avoid anyone touching him by shrugging his shoulders and moving away from the officers. Claimant resisted being placed back into the vehicle by turning with his back to open the door of the vehicle and spreading his elbows out on each side of the door frame. Officer Galler and Trooper Abrial could not get claimant into the car so Officer Galler signaled Trooper Sullivan to assist them. Trooper Sullivan observed claimant moving his feet and "attempting to get away..." Trooper Sullivan went to assist getting claimant back into the vehicle, leaving Corey Mathis in the trooper vehicle with Officer Maher watching him. Trooper Abrial had to go around to the other side of the police vehicle and get inside to pull claimant while the two male officers assisted from outside.

Claimant testified regarding the stop and some events that occurred on West Street but was unable to remember anything that occurred at the police station. It is claimant's belief that he was struck in the head by an officer at West Street. Claimant's testimony was disjointed and did not assist the Court due to his limited recall. The initial focus of both this case and a related federal case was on the intentional misconduct of the police officers in assaulting him; however, that allegation is not supported by claimant's own medical expert which will be addressed later in this decision.[5]

Mrs. Raymond and her son arrived at the West Street scene at approximately 3:05 a.m. to take the claimant's vehicle and dog home. She asked to speak with her husband so Officer Galler rolled down the back window of the patrol car to accommodate her request. Claimant told her to get away and used obscenities toward her. Mrs. Raymond said her husband was loud and swearing and she could not carry on a conversation with him. Kemo, described as a guard dog, was in claimant's vehicle, which the officers wanted to search according to claimant's son, Sean. Sean removed the dog from claimant's vehicle to his mother's van. The police searched the car and then informed Sean and claimant's wife that they were taking claimant to the police station. Sean drove his father's vehicle to the police station. Officer Galler, with Trooper Abrial in the Boonville police car, drove claimant to the Boonville Police Station.[6] Trooper Sullivan and Officer Maher left the scene of the stop five to ten minutes earlier with arrestee, Corey Mathis.

When the patrol car pulled up to the Boonville Police station (hereinafter the station) with claimant, the garage door was open. Officer Galler had radioed ahead to the station and Trooper Sullivan went outside to assist "to make sure that there wasn't a problem in escorting [claimant] into the police station." Trooper Sullivan regarded claimant as an escape risk because of claimant's belligerence and failure to comply with police orders. Trooper Sullivan testified that claimant walked under his own power both at the stop at West Street and again when exiting the police vehicle at the station. Trooper Abrial walked into the station ahead of claimant while Trooper Sullivan and Officer Galler helped claimant out of the backseat, each taking an arm escorting him into the garage where there was a bar attached to the wall with handcuffs permanently affixed. Claimant was seated in one of the chairs in front of the bar with his back to the bar. The handcuffs attached to the bar were then attached to the cuffs already on claimant's wrists. This, according to the police witnesses, was standard procedure. With the use of the two sets of handcuffs, claimant's arms were pulled up his back, almost to his shoulder blades, so Trooper Sullivan put another set of handcuffs between those on claimant's wrists and the pair attached to the bar to allow him to sit more comfortably.[7] This also gave claimant more room to move around. Claimant continued to scream, curse and swear. Officer Galler told claimant to sit down and to stay seated.

The station consisted of a two-bay garage; along the right-hand wall as one entered through the garage bay doors was the bar to which claimant was handcuffed. Also to the right toward the front of the building was a separate entry with a walkway. From the walkway one could turn left into the garage or proceed straight to the village courtroom. In the far right corner of the garage was another door with a window which connected the garage to the police office area. In the office, there were two desks and a Breathalyzer machine on a table. One desk, used by Trooper Abrial that night, faced the garage bays and someone sitting at it with the door opened would have an unobstructed view of anyone seated under the bar.[8] The bar was 47 inches long and above the back of the chair, approximately 37 inches from the floor. The chair seat was approximately 18 inches above the floor.

Trooper Abrial sat at the desk with the door open and completed the appropriate paperwork for the DWI and traffic infractions[9] for which claimant was being charged. Included in the documentation are Trooper Abrial's observations of claimant at West Street. She described him, at the time of the stop (2:50 a.m.), as falling, staggering, unable to stand without support, slobbering, shouting, insulting and combative among other things.[10] In her Report of Refusal to Submit to Chemical Test, Trooper Abrial noted "strong odor of alcoholic beverage, slurred speech, glassy eyes, & poor motor coordination (could not stand without support)[sic]."[11] She testified that by poor motor coordination she meant claimant was having trouble with his balance. Trooper Abrial's physical description of claimant is consistent in all of the documents. She also testified that when claimant got out of the car to be searched, he was staggering and swaying so for his personal safety, she decided not to give him field sobriety tests. She believed him to be severely intoxicated, although she did not know the level of claimant's intoxication because he refused the Breathalyzer test at the time of arrest and again at the station. Based upon her observations, he was intoxicated at both points in time.

While Trooper Abrial prepared the paperwork, Officer Galler listened to claimant's ramblings and asked him if he wanted his wife and son inside the station. Claimant did not want them around and Officer Galler went outside and spoke with claimant's family. Mrs. Raymond, Sean Raymond, Corey Mathis and the police witnesses remember that claimant was loud and agitated while at the station. Trooper Sullivan had Officer Galler tell claimant to be quiet at some point in time before claimant's fall. Both Mr. Mathis and Mrs. Raymond recalled that claimant quieted down before he fell.

At 3:30 a.m., Trooper Abrial spoke with claimant to determine his evening activities and to again request that claimant submit to a Breathalyzer test; but he again refused.[12] Some time thereafter, Trooper Abrial went outside to tell the Raymonds that claimant had to be arraigned because of claimant's refusals to submit to the Breathalyzer tests, and she wanted some notes from Officer Galler, who was at that time also outside the station. Both Officer Galler and Trooper Abrial testified that they had asked Officer Maher to watch claimant, although at trial, Officer Maher did not recall Trooper Abrial's request.[13] Officer Maher was inside the office near the door to the garage area, approximately 13 feet away from claimant when claimant fell. Officer Maher saw claimant attempt to stand up, his feet appeared to slip and he fell to the left, hitting his head on the floor.[14] Trooper Abrial head a thud. Officer Galler and Trooper Sullivan heard the chairs[15] skid when claimant's feet pushed them. Trooper Abrial went inside and saw claimant on the floor, unconscious.

Sean Raymond claims he heard Trooper Abrial say, "Oh sh_ _, he fell" before she went outside. Both Mrs. Raymond and her son testified that Trooper Abrial said that claimant "fell again" when they heard the noise inside the station, implying that claimant fell more than once. The credible evidence establishes that claimant fell only one time.

Trooper Abrial called the ambulance at 3:50 a.m., Trooper Sullivan and Officer Galler assisted claimant and took pictures of the scene. Claimant was taken to St. Elizabeth's, a nearby hospital where he required surgery to alleviate the pressure on his brain from the epidural bleeding caused by a skull fracture.

Prior to leaving the station in the ambulance, Trooper Abrial called New Hartford, the State Police zone headquarters, to notify a zone supervisor of claimant's accident in accordance with established procedure. She spoke with Trooper Pamela Williams on the telephone who called Sergeant Christopher Hanlon, the acting zone commander on duty that evening. Sgt. Hanlon then called the Boonville Police Station and spoke briefly with Trooper Abrial agreeing to meet her at St. Elizabeth's Hospital. When he arrived, Trooper Abrial told Sgt. Hanlon what had occurred earlier that evening.

As a collateral matter, Sgt. Hanlon was investigated by the State Police for his mishandling of the situation involving claimant. Apparently, Sgt. Hanlon tried to arrange to have claimant's arrest taken by the Boonville Police Department and he misled his supervisor about who had custody of claimant at the time he fell. Captain Peter Lawrence did an investigation of the circumstances surrounding claimant's injuries as well as Sgt. Hanlon's handling of the matter and filed a report with the Internal Affairs Bureau of the State Police in Albany. As part of his investigation, Cpt. Lawrence accessed a tape (referred to at trial, and hereinafter referred to as a "logger" tape) which recorded certain conversations between the New Hartford station and Boonville station. A cassette tape was made of the conversations relevant to the Hanlon investigation and was sent with the final report to Albany.

Claimant seeks spoilation sanctions from the Court based upon the defendant's failure to produce records of the State Police pursuant to subpoena.[16] At the commencement of this trial, claimant reduced the number of items he felt were critical to four of those listed in the subpoena, to wit: the "logger" tape and related radio log, the evidence log and the photographs taken at the scene with the date and time they were taken inscribed on the back. Claimant questioned numerous witnesses at trial regarding State Police procedures and the efforts made to locate the items sought by the subpoena. Based upon the testimony, the Court determined the following:

At zone headquarters, which in 1993, was the New Hartford barracks, there was a large tape recording unit[17] which would record the front desk operations; telephone calls on certain telephone lines and certain radio frequency transmissions. The car-to-car transmissions were not on a taped frequency nor were other telephone lines in the barracks connected to the recording unit. The conversations between Trooper Abrial, Trooper Williams and Sgt. Hanlon were, apparently, on one of the lines that was taped, since the "logger" tape for July 23, 1993, was used by Cpt. Lawrence in his investigation. Cpt. Lawrence, as part of his investigation, made a copy of at least a portion of the July 23, 1993, "logger" tape. This tape along with the original "logger" tape for July 23, 1993 were no longer in existence at the time of trial. In accordance with the State Police Administrative Manual[18] procedure, the 24 hour "logger" tape was reused after 30 days. There was no explanation for the disappearance of the cassette Cpt. Lawrence made, although a thorough search was conducted in Albany.

No information was received at trial indicating the whereabouts of the radio log or the evidence log. The radio log is a record of the radio transmissions received at the desk in New Hartford. The evidence log is a list of the items that would have been taken from claimant at the time of the stop.

Some of the subpoenaed items claimant sought were also requested in the federal action claimant filed against the individual officers and the Village of Boonville pursuant to 42 U.S.C. 1983, 1985 and 1988 for a civil rights violation. As a result of a summary judgment motion granted on June 11, 1998, that case was dismissed. A significant portion of the discovery process conducted in that matter was used by the parties in this case. A motion to compel was made in that action and the federal magistrate granted claimant an order (filed 4/11/96) requiring disclosure of various items including the police file relating to claimant, disclosure of radio logs, photographs taken at the scene and the reports completed by Cpt. Lawrence including the conclusions, memoranda, and documents. In the alternative, an affidavit was to be provided stating that such items did not exist. This Court has no information regarding whether the "logger" tape was part of the disclosure order since the tape was not specifically identified for production in the order. There was also no evidence submitted regarding the extent of compliance with the order.

The photographs of claimant after the fall, although inscribed with the time and date they were taken, add nothing to claimant's case. The documents and photographs submitted fully apprise the Court of the timing of the arrest and claimant's fall and the photographs in evidence depict the claimant's position after the fall.

The radio and evidence logs were not specifically addressed as the testimony and legal arguments focused on the "logger" tape and the cassette made from that tape. Again, the logs would provide no information to the Court regarding what happened in the station between 3:10 and 3:45 a.m. the morning of July 23, 1993. As evidence at trial, their relevance is questionable at best.

Spoilation sanctions may be warranted where a litigant disposes of an essential piece of evidence before the adversary has an opportunity to inspect it (DiDomenico v C&S Aeromatick, 252 AD2d 41, 52-53; Squitieri v City of New York, 248 AD2d 201, 203-204; Brown v Michelin Tire Corp., 204 AD2d 255, lv denied 84 NY2d 808). Sanctions have been found to be appropriate where a party destroys crucial evidence intentionally, knowing litigation was pending or imminent, (Squitieri v City of New York, supra; Brown v Michelin Tire Corp., supra) or even negligently if the evidence was key to a party's ability to prove or defend its case (Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243). Throughout the case law, the consistent factor is the crucial nature of the evidence lost or destroyed. A factor which claimant has failed to establish. The items claimant subpoenaed were not key evidence, since much of what was sought was available through other evidence of were not germane to the issue of liability.

The Court finds that the tape was destroyed pursuant to normal business practices[19] before litigation was pending and before any requests were made that the information be provided or preserved (Conderman v Rochester Gas & Electric Corp., 262 AD2d 1068, 1070; Sage Realty Corp., v Proskauer Rose, LLP, 713 NY2d 155). Cpt. Lawrence, who the Court found to be a very credible witness, admitted he was aware civil litigation would be forthcoming in relation to claimant and his injuries; however, there is no requirement that in such circumstance he secure the "logger" tape.

The Court is troubled by the items missing from the State Police files in this matter,[20]

specifically the Administrative Investigative Report regarding the injury to claimant dated August 6, 1993, written by Cpt. Lawrence and the cassette tape made by Cpt. Lawrence, of portions of the "logger" tape, both of which should have been attached to the Complaint against Personnel Report filed with internal affairs.[21] Thorough searches were made for these items but they were never found, nor was there any explanation for their disappearance. The Administrative Investigative Report and the Complaint Against Personnel had overlapping information and claimant had the Complaint Against Personnel Report which contained a statement from Trooper Abrial regarding what transpired the evening of July 22 - 23, 1993. The Complaint Against Personnel Report also contained statements from other troopers with whom Abrial communicated that night, which are consistent with the testimony at trial. Claimant also had the written transcript of the cassette tape made by Cpt. Lawrence from the "logger" tape. Accordingly, the Court denies claimant's request for spoilation sanctions.
ANALYSIS
Claimants present two theories for recovery: negligent supervision and negligent training. Claimants' position is that the State Troopers failed to adequately supervise claimant given his intoxicated condition and the way he was handcuffed behind his back to a bar attached to a wall, while seated in a chair. Claimants also argue that the troopers were not adequately trained in how to properly guard and handle an intoxicated prisoner. As a result of these breaches claimant suffered severe injuries.

The New York State Police Administrative Manlius §8.10[22] reads, "[a] Member who has in his custody or who is charged with responsibility for the custody of any person or persons under arrest or detention shall be responsible for the proper safeguarding and protection of such person or persons and his or their property." The law requires "that a police officer who arrests an intoxicated driver assumes the duty of exercising the care reasonably required in the circumstances to assure the safety of a person in that condition"(Thomas v State of New York, 46 NY2d 1043, 1044; Parvi v City of Kingston, 41 NY2d 553, 559-560; cf., Johnson v State of New York, 253 AD2d 274). There can be no dispute that the troopers owed a duty to claimant, and in fact both troopers acknowledged at trial, that they had a duty to protect claimant from harm.

The claimants urge this Court to find that the police owe a heightened duty of care to intoxicated prisoners. A review of the cases relied upon by claimant to support his position, all from other jurisdictions, reveals that the difference in the duty of care is merely one of semantics. The case of Barlow v New Orleans, 257 La. 91, established the heightened duty rule in Louisiana. It was clarified by Griffis v Travelers Insurance Company, 273 So. 2d 523, in which the Court declared that an officer must act reasonably under the circumstances; an officer is not an insurer of the prisoner's safety simply because the prisoner is intoxicated (See, Gibbs v State of Louisiana, 524 So. 2d 817; Manuel v City of Jeanerette, 702 So. 2d 709).

The defendant did not owe a heightened duty to claimant, the duty owed required defendant to act reasonably based upon all of the circumstances, including claimant's intoxication. The question is whether the troopers acted reasonably to protect claimant from injury given the circumstances as presented that morning.

"In determining whether a breach of duty has occurred [the finder of fact] consider[s] whether the resulting injury was a reasonably foreseeable consequence of [defendant's] conduct"(Cygan v City of New York, 165 AD2d 58, 67; Gordon v City of New York, 70 NY2d 839; Danielenko v Kinney Rent A Car, 57 NY2d 198). "An act recognized by a reasonable man ‘as involving a risk of harm to another' is negligent only ‘if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done' (Restatement, Torts 2d, §291)." (Thomas v State of New York, (dissent) supra at 1046; Johnson v State of New York, 174 Misc 2d 193, 199, aff'd 253 AD2d 274).

There is no doubt that claimant was intoxicated at the time of his arrest. Claimant's pharmacology expert, Oliver Brown, determined, based upon claimant's blood alcohol count (BAC hereinafter) of .226(plasma only) taken at the hospital at about 5:30 a.m., that claimant's blood alcohol content would have peaked at .22 (whole blood) at about 3:15 a.m. The State's expert, Doctor Barbara Wolf, calculated claimant's BAC to be .26 or.27 at approximately 3:00 a.m. This would mean that claimant drank the alcohol equivalent of 13 to 15 beers between midnight and 2:00 a.m. at the time he was at The Pub. Except for the factors that they could observe, the troopers could not have known the level of claimant's intoxication due to claimant's refusal to take a Breathalyzer test.

Both claimant and defendant produced experts in police training and restraint protocol. Both expert witnesses reviewed several depositions, the police reports, the internal affairs investigation, photographs, medical records, and the videotaped re-creation of the event. Mr. Allard, defendant's expert, estimated that there was approximately 65 hours worth of material in the information he was sent. He also reviewed the State Police Field Manual and training materials that relate to the arrest and restraint protocols, and he made a visit to the Boonville Police Station to view the scene, including the bar to which claimant was handcuffed.

Claimant's expert in police training, Randall Paul McCauley, currently a professor of criminology at Indiana University with a Ph.D. in criminal justice administration, testified that the initial handcuffing at the scene of the stop was proper, as was the escort into the building. Mr. McCauley questioned the troopers' decision to seat claimant in a chair handcuffed behind the back to a bar on the wall. Being handcuffed behind one's back causes a person to be off balance. Mr. McCauley stated that when a prisoner is handcuffed to a rail or ring on a wall, the prisoner should be seated facing the wall. Mr. McCauley noted that if claimant was handcuffed in front facing the wall, although he could still be at risk for injury, not for the injury he actually suffered. In Mr. McCauley's opinion, the State Troopers had other choices for securing claimant at the station:
1. Handcuff as they did but provide a "standing escort" (immediate and constant supervision;


2. Seat claimant on the floor with his hands cuffed in the front which means there is a time when the prisoner is partially uncuffed;


3. Put prisoner lying on floor; or


4. Seat claimant on the floor with his hands cuffed over his head.


Mr. McCauley acknowledged that the officers were correct in principal to allow claimant to sit comfortably at the station by adding the third set of handcuffs to the horizontal rail on the wall. The issue, according to this witness, was whether the officers knew claimant was seriously intoxicated. In his opinion, the likelihood of a seriously intoxicated person falling while standing or seated in a chair is reasonably high, because an intoxicated person's mental and physical state and coordination are below normal.

In response to this witness, the State called an expert as well, Reginald F. Allard, Jr., an instructor at the Connecticut Police Academy whose field of expertise are use of force and defense tactics, and officer restraint protocol.

Mr. Allard testified that there is no set handcuffing protocol. Each officer has discretion in how to cuff a prisoner because all prisoners are considered risks. Each arrest is subject to the officer's discretion for purposes of officer and prisoner safety. The decision to handcuff and how is not dependent upon what condition the prisoner may be in (i.e., intoxicated) but is dependent solely upon the good judgment of the officer in the circumstances and it cannot be dictated beforehand. This opinion coincides with the New York State Police Field Manual, Article 31[23] which reads:

(1) Nonfelony And Nonviolent Prisoners

Always consider handcuffing. You MAY decide NOT to handcuff.

However, this decision MUST be based on good judgment.


Consider the circumstances, such as; the gravity of the offense(s),

the temperament of the prisoner, the propensity of the prisoner to

attempt an escape, AND whether or not assistance is immediately

available.


Mr. Allard testified that an acceptable cuffing method for larger people is to use two sets

of handcuffs horizontally. What Trooper Sullivan did was adapt that method to the circumstances, merely changing it to a vertical restraint mechanism. Mr. Allard further testified that as a result of that modification it was not readily apparent that claimant could fall and hit his head on the floor but did acknowledge that by increasing claimant's comfort, the additional handcuffs increased the ability for claimant to stand. However, without the middle set of handcuffs, the claimant's hands would have been raised behind him another nine inches. This would not only have been uncomfortable but would have impaired claimant's breathing.

Mr. Allard opined that the adaptation of the double handcuffing protocol was proper based upon the fact that the claimant was intoxicated, belligerent, aggressive, threatening and uncooperative. Behind the back handcuffing protects officers from assault by the prisoner as compared to cuffing the prisoner in front. Mr. Allard believed it was good judgment to maintain security, give claimant seated stability and provide a cool-down period. Mr. Allard explained that some prisoners dislike the arresting officer but do not have the same aggressiveness toward another officer and so allowing the prisoner to be removed from the arresting officer may relieve the combative behavior. In this scenario, Trooper Abrial took the brunt of claimant's anger and belligerence while he seemed calmer and more cooperative (relatively speaking) with Officer Galler. In any event, at no point in time, according to Mr. Allard, was an officer physically more than a half-second away from claimant.

In Mr. Allard's opinion, it was not foreseeable that claimant would be injured by the troopers actions in handcuffing claimant behind his back to the wall, while seated in a chair. It is logical that if one were to fall off a chair from a seated position, it would be likely that lower extremity contact would be made before the head. Trooper Abrial recognized that claimant had trouble standing, she had chosen not to give him field sobriety tests because she was concerned for his safety. Claimant's unsteadiness on his feet was one reason they had him seated in the garage. Although Mr. Allard agreed that claimant could have been seated facing the wall instead, claimant's expert conceded that handcuffing a prisoner in front and even seating them on the floor facing the bar would not have eliminated the risk of injury, although clearly the injury suffered would have been less severe.

Mr. Allard disagreed with Mr. McCauley's testimony that claimant could have been safely placed lying on the floor. Alcohol could depress the breathing and there would be a possibility of aspirating on oneself. Seating a prisoner is more dignified. Barbara Wolf, M.D., also testified for the State that laying an intoxicated person on their stomach with their hands cuffed behind them could result in positional asphyxia.

Mark Flomenbaum, M.D. a pathologist working in the New York City Medical Examiner's Office, testified that claimant suffered injuries primarily to his head on July 23, 1993, resultant of blunt force applied to a relatively broad surface. Most of the injuries were to his left side. He had a laceration near the left side of his eye, which is where the skin split due to being stretched. It is the only type of injury that occurs in blunt force. The temporal bone, on the left side of his head behind the eye, a delicate thin bone was fractured, as was his left eye orbit. The break was a linear fracture that continued almost to the base of the skull. Bleeding was subcutaneous which was trivial compared to what else happened.

The Dura Mata membrane envelops the entire brain and separates the brain from the inside of the bone. Epidural bleeding, bleeding outside the dura but inside the skull, occurred in claimant. It can be lethal as bleeding from an artery can continue pushing the brain in and squashing it causing death. Surgery halted that process in claimant.

There was also some hemorrhaging on the left temporal lobe, which could be from the force of the bone hitting against it. The CAT scan showed there was a contusion on the cerebellum (the area behind the ear on the right side). There was a direct impact injury on the left side behind the left eye with bleeding occurring on the right side and right back (coup- contracoup injury).

The doctor explained the coup-contracoup aspect of the injury. When the head is moving, striking a fixed object will cause the coup injury but will also cause bleeding on the opposite side (contracoup). This can only occur when the head is accelerating and brought to an abrupt stop. It would not occur where the head is moving at a constant velocity or if the head were fixed and struck on one side. Doctor Flomenbaum's opinion is also consistent with the testimony of Ali Erkan Engin, Ph.D., claimant's expert in the field of mechanics and biomechanics. The head injury suffered is consistent with claimant attempting to stand, losing his balance and his feet slipping out from underneath him causing him to fall to the floor. It is not consistent with a blow to the head from an instrument like a flashlight. The temporal bone is flat and thin and if something were to strike and break it, the bone would most likely be indented and the force of such blow would not be sufficient to cause the contracoup injury. The claimant's temporal bone was broken but not indented.

The injuries to claimant's wrists indicated to Dr. Flomenbaum that the skin was rubbed off over a broad area indicating that the handcuffs were twisted around the hand with a lot of force. It is consistent with an acceleration/deceleration injury. As he started falling, claimant was held up by the wrists due to the handcuffs and instead of collapsing, his head kept moving forward. The position of his hands increased the acceleration via the mobility of the three handcuffs and the resistance of the handcuffs caused the injury to his wrists.

If claimant were not cuffed in the manner he was, he would not have had the severity of the injury. The greater the height, the greater the force of the fall. He might have hit his head had he been seated on the floor but the injury would have been less severe. Claimant was about half the way upright, as estimated by the doctors, when he began to fall. The Court finds that it was not foreseeable that by adding the additional set of handcuffs to make claimant more comfortable, the risk of injury to claimant would be increased.

The Court finds that the officers were not negligent in their supervision of the claimant given his intoxicated condition and handcuffed position. The determinations made by the troopers in handcuffing claimant as they did and seating him in a chair were reasonable given the circumstances presented. Claimant was loud and belligerent, clearly keeping him handcuffed was appropriate given the risk of escalation to violence and escape. The method by which the troopers handcuffed claimant did not violate any mandatory rule and was clearly in the officers' discretion. Seating claimant in a chair provided him with a stable location to await processing. Claimant was unsteady on his feet, sitting him in a chair was a reasonably safe alternative. Although claimant was clearly intoxicated, he had not lost all coordination as evidenced by his roadside conduct. Claimant managed to repeatedly spin around making it difficult to put handcuffs on him or for the officers to conduct a pat search at the roadside, and he had the coordination and strength to avoid entering the police vehicle, requiring three police officers to maneuver him into the car. Although there were other options available to the troopers for handcuffing and positioning claimant at the station, none of the options presented by claimant's expert were without separate risks. Even seating claimant on the floor cuffed in front would not have eliminated the risk of claimant falling over and being injured.

Claimant was under constant supervision by either Trooper Abrial, Officer Galler, or Officer Maher during the period of time (approximately 35 minutes) that he was in the station. Officer Galler was in the garage area speaking with claimant. Trooper Abrial was sitting at the desk in the office and could visually observe claimant through the open doorway while she prepared the paperwork. At 3:30 a.m., Trooper Abrial was in the garage area speaking with claimant. When she left the garage area, Officer Maher was watching claimant through the door window in the office. Although Officer Maher had not been specially trained to watch prisoners, as Mr. Allard testified, no special training is needed, it is simply common sense. Trooper Sullivan was in the office area with Officer Maher during this time, allowing for prompt consultation. The farthest away any officer was from claimant during the period in question was 13 feet. Claimant had been told to sit in the chair and stay there upon his arrival and although he squirmed around he had not previously tried to stand. It is pure speculation that having an officer closer to claimant than 13 feet would have prevented him from attempting to stand or from being injured. Based upon the claimant's own experts (Doctor Flomenbaum and Doctor Engin) claimant fell as he attempted to stand. Doctor Flomenbaum believed, based upon the injuries, that claimant was only half-way to a standing position when he fell. The wisdom of hindsight and the atrocity of injuries cannot dictate the determination that the troopers actions were unreasonable. "Whether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen at the moment the defendant engaged in the activity which later proves harmful" (citation omitted)(Danielenko v Kinney Rent A Car, supra at 204).

Claimant requested Noseworthy[24] consideration due to claimant's amnesia caused by his injuries. The Noseworthy Doctrine permits a reduced burden of persuasion in considering evidence where a litigant suffering either death or amnesia as a result of a tortfeasor's conduct is no longer able to testify or to describe the event (Noseworthy v City of New York, supra at 80; Sawyer v Dries & Krump Mfg. Co., 67 NY2d 328). The Doctrine is an approach to weighing evidence which permits more latitude in drawing inferences in favor of claimant (Sawyer v Dreis & Krump Mfg. Co., supra at 334). Although the amnesiac or deceased is held to a lesser standard of persuasion, a prima facie showing of defendant's negligence must still be proven (Byrd v New York City Trans. Auth. 228 AD2d 537; Caban v Vega, 226 AD2d 109). A claimant suffering from amnesia must still make some showing of defendant's negligence and the burden is not met if the inferences are equally balanced (Sawyer v Dreis & Krump Mfg. Co., supra at 334; Jarrett v Madifari 67 AD2d 396; Oginski v Rosenberg, 115 AD2d 463; appeal dismissed, 75 NY2d 991). Even applying the doctrine, the Court cannot disregard the credible testimony; the defendant acted reasonably that morning based upon the circumstances presented (See, Alber v State of New York, 252 AD2d 856, 857; Duntley v State of New York, 274 AD2d 703).

There was insufficient evidence to indicate that the troopers were not adequately trained to handle intoxicated prisoners. Mr. Allard testified that the New York State Police training procedures were certified in 1993. The procedures have conformed to New York State standards and training at least since 1990. The troopers received training and understood arrest and custodial protocols, as well as the duty they assumed when taking a person into custody. There was no negligence shown in the training of the troopers, and this Court will not substitute its judgment for that of others whose education and training quality them to determine the appropriate instruction for police officers.

The Court acknowledges the time and effort committed to this case by counsel and wishes to commend both attorneys on the thorough and professional work done in this matter. Claimant's injuries are tragic and have severely restricted his daily functioning ability, as well as having a calamitous effect on his family. However, the desire to provide amelioration cannot form the basis for finding liability.

Based upon the foregoing, the claimants have failed to meet their burden of proof and the claim is hereby DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.



December 7, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]Numerous witnesses testified to the events of the evening in question. Normal, relatively insignificant discrepancies exist in their various narrations and will not be noted. Significant differences in the testimony will be addressed in this decision and resolved based upon this Court's determination of the witnesses' credibility.
[2]At the time of the incident, Mr. Maher was not a police officer but had become one by the time of trial. For purposes of convenience, the court will refer to him as "officer" throughout this decision.
[3]All references to the claimant herein will be to Harold Raymond unless otherwise noted. Claimant, Donna Raymond has only a derivative cause of action.
[4]All quotes are from the trial tapes or the transcript.
[5]The Court notes that the notice of intention and claim included allegations of intentional misconduct by the State Police.
[6]It is common for the troopers to use the Boonville station if it was closer than the Remsen barracks.
[7]Exhibits 2A, 2B and 2D. Officer Galler does not remember the additional set of handcuffs being used. It is quite clear that they were used.
[8]The testimony of the witnesses was inconsistent regarding whether the door was opened or closed during this time. Trooper Abrial and Corey Mathis recall the door was open. Officer Maher recalls the door was closed at the point in time Trooper Abrial went outside and he was left watching claimant. Trooper Sullivan thought the door was closed and Officer Galler couldn't recall. The Court finds that while Officer Abrial was completing her paperwork the door was open.
[9]Exhibits 4 - 9.
[10]Exhibit 4.
[11]Exhibit 5.
[12]See Exhibit 6.
[13]At the trial, Kenneth Walters, Jr., an emergency medical technician and off-duty Boonville Police Officer, testified that he saw Officer Maher at the local convenience store buying several coffees at some time prior to 3:45 a.m. during the early morning
[14]Although the Court found Officer Maher to be a less than credible witness, this description is consistent with the injuries claimant sustained based upon the testimony of claimant's expert witnesses. Officer Maher gave a statement shortly after claimant's fall to Boonville Police Chief, Robert F. Smith, indicating that claimant attempted to stand, bent over and threw himself from the chair and hit his head on the wall. There was insufficient proof to find that claimant threw himself from the chair, and relying on the opinions of claimant's experts, his injuries are consistent with him striking his head on the floor.
[15]Boonville Police Chief Smith testified that he had wired three plastic chairs together because the prisoners who were not handcuffed to the bar would sometimes throw them.

[16]The items sought included:

a) Logger tapes from July 23, 1993 to July 26, 1993, and through August 6, 1993;

b) The radio call log sheet showing all calls and dates and times;
c) Captain Lawrence's cassette coy of the portion of the logger tapes that he copied from the existing logger tapes of July 22-23, 1993;

d) The original photographs with the date and time affixed to the back;
e) The original and backup copy of the logger tapes which were attached to the original administrative discipline report against Sgt. Hanlon;

f) the original reports filed in Albany of Cpt. Lawrence's Injury to Prisoner Report and

Administrative Discipline Report;

g) State Police evidence log sheets and the location of the evidence logged;
h) Routing sheets and chain of custody records for photographs taken at the Boonville Police Station, including the number of photographs taken and developed and the current location of the photographs.
[17]Exhibit 83, the section of the State Police Administrative Manual which set forth the use and preservation of the tape logs was received into evidence.
[18]Exhibit 83.
[19]Exhibit 83
[20]The Court is also troubled by the failure of Sgt. Hanlon to appear at the trial to testify pursuant to subpoena. Sgt. Hanlon was on administrative leave from the State Police at the time of trial; however, he was personally served with the subpoena. Claimant did not request a contempt hearing and Sgt. Hanlon's deposition was admitted into evidence, which included questions from claimants' counsel on the issue which claimants' counsel argued he wished to place before the Court.
[21]Exhibit 27.
[22]Exhibit 13.
[23]Exhibit 26.
[24]Noseworthy v City of New York, 298 NY 76.