New York State Court of Claims

New York State Court of Claims

BEST v. THE STATE OF NEW YORK, #2003-029-263, Claim No. 100250


Prisoner ambulating with use of crutches on DOCS bus alleges that crutch slipped on spilled liquid on bus step resulting in him fallowing out of the bus. Court finds claimant failed to establish existence of dangerous condition or negligence in manner of maintaining bus steps. No liability; claim dismissed.

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:
Rovegno & Taylor, P.C.By: Robert B. Taylor, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Mary B. Kavaney, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 25, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury asserts that claimant, an inmate under the care and custody of the New York State Department of Correctional Services (hereinafter DOCS), allegedly fell while attempting to exit a DOCS bus on May 7, 1998. The trial was bifurcated and this decision deals only with the issue of liability.

Mr. Best testified that he is currently housed at Attica Correctional Facility and has been in the custody of DOCS since 1989; that on May 7, 1998 he was walking with the aid of crutches as he has two bad knees, the result of injuries he sustained while playing football. Prior to May 7, 1998 he used crutches or a wheelchair to help him ambulate at various times. Claimant stated that on May 7, 1998 he was housed at Eastern Correctional Facility and was being transferred, by bus, to Southport Correctional Facility along with approximately 40 inmates. Along with the inmates were two Correction Officers (hereinafter C.O.s), a Sergeant (hereinafter Sgt.) and the bus driver. Prior to boarding the bus claimant was strip-searched and then shackled with two pairs of handcuffs, a waist chain and leg irons. He stated the waist chain and handcuffs were applied in such a way as to lock the crutches against his body; that this hurt his wrists and "threw his movement off"[1]
; that he had to walk slowly and pace himself. He further testified that he received no assistance from any of the officers while boarding the bus and that he was able to climb up the three rubber steps of the bus. He said the C.O. told him to sit in the first row of inmate seats on the side behind the driver. There is a plexiglass and wire mesh divider separating the inmates from the bus driver and seats for the C.O.s.
Claimant further stated that the bus was to take him and the others from Eastern to Downstate Correctional Facility (hereinafter Downstate) for the night. Prior to arriving at Downstate, the bus stopped at a convenience store where a C.O. went into the store and returned with four wax paper cups, without lids, holding what he assumed to be soda. Each of the officers took a cup and the bus continued to Downstate. The Sgt. and one of the C.O.s sat on the side of the bus opposite from the driver[2]
and the other C.O. stood on the steps of the bus. At one point the C.O. standing on the steps yelled out, backed up and wiped liquid from his shirt and pants.
Claimant stated that when the bus arrived at Downstate it pulled into the "Sally Port" and all the officers exited the bus before any of the inmates. Claimant was the first inmate to exit. He got up from his seat and took small steps as he proceeded to the front of the bus as his legs were in leg irons. He was using his crutches and was able to move his legs only 3 or 4 inches at a time. When he got to the bus stairway, he had to turn right to descend the steps. Claimant testified that he placed a crutch down on the first step (which is where the C.O. was standing when he allegedly spilled his drink) and as he leaned on the crutch and started to step down, the crutch slipped (on the spilled liquid). He lost his balance and fell down the steps and out of the bus to the ground. He stated he did not strike any of the steps with his body, that he just fell out of the bus and his back and head hit the ground and the lower part of his body fell on the crutches. He further stated that he was not offered, nor did he seek, any assistance from anyone in attempting to exit the bus. Claimant testified that he lost consciousness for a few seconds and was lying on the ground for about a half-hour before he was taken from the scene via stretcher.

C.O. James Jamrozy testified that on the date of the subject incident he had been a C.O. for about two years. On May 7, 1998 he was assigned to Ulster Correctional Facility (hereinafter Ulster) bus transport detail. His job consisted of escorting inmates who were being transferred; that he rode with the inmates on a bus and the bus dropped off and picked up inmates at several facilities. On the date in question there were two C.O.s (including himself) and a Supervisor (a Sgt.) on the transport bus with the driver and inmates.

The witness stated that inmates are fully shackled while on the bus. C.O. Jamrozy also testified that when the bus arrived at the Downstate "Sally Port", the Sergeant exited the bus first and went into the facility. The witness then exited the bus, walked to the rear on the door side and stood there as the inmates exited the bus. The other C.O. stayed inside the bus, at the top of the stairs, as the inmates exited. He stated there are three rubber steps on the bus and each step is about seven inches high. The witness stated that he did not remember where claimant was sitting on the bus but remembers he was handcuffed and had leg irons on.

C.O. Jamrozy stated that prior to arriving at Downstate, the bus stopped at Eastern and Woodbourne Correctional Facilities. He could not recall stopping at a store for refreshments, however, he stated that on occasion the bus would stop so the officers could have a "rest stop".

The witness stated that from his position at the outside rear of the bus he could not see the bus exit and he did not see the claimant fall. He only saw claimant lying on the ground next to the door but does not know how he got there. He stated claimant was handcuffed and had on a waist chain, but could not recall if his legs were shackled. He further stated that C.O. Mason was still on the bus at the time claimant was on the ground.

C.O. Jamrozy stated that if a C.O. saw debris, garbage or a spill on the bus steps, the C.O. would have picked up the garbage or had an inmate porter from the correctional facility come out and clean the steps.

On cross-examination, the witness stated that when inmates exit the bus, the usual practice is for them to have their legs shackled. However, it is not uncommon for inmates who use crutches to have the leg shackles removed prior to exiting the bus.

C.O. James Mason[3]
also testified at trial. He stated that on May 7, 1998 he was a C.O. assigned to Ulster and had been assigned there since 1990. On the date of the subject incident he was working on the afternoon bus transporting inmates between facilities and had been performing this job for about a year on that date. He first saw claimant when the bus picked claimant up at Eastern to be transported to Downstate. The witness shackled claimant before claimant got on the bus. He placed handcuffs, a waist chain and leg irons on him. C.O. Mason stated he shackled claimant differently than the other inmates because claimant was using crutches. He did not put leg irons on claimant until he was on the bus; that two pair of handcuffs were used on claimant; one cuff of each set was put on each of claimant's wrists while he had his hands on the crutch handles and the other cuff of each set was attached to the waist chain. In this manner claimant had freedom of movement to use the crutches but he could not use the crutches as a weapon because he couldn't take them off his arms.
C.O. Mason testified that on the date of the subject incident the bus stopped at Eastern and Woodbourne Correctional Facilities. He does not recall stopping for beverages that day but acknowledged that on other occasions the bus had stopped so the officers could get a beverage. When they did stop, the beverage was brought back onto the bus and consumed there. He does not recall anyone standing on the steps on May 7, 1998. He stated claimant was sitting in the first right hand seat behind the plexiglass divider. When the bus arrived in the Downstate "Sally Port", Sgt. Paterno got off and went into the prison. The witness' partner exited the bus and stood by the rear. When he received clearance to get the inmates off the bus, he directed claimant to be the first inmate off the bus. The witness removed claimant's leg irons before claimant exited. The witness was standing at the top of the steps near the driver and observed claimant as he exited the bus. He further stated that claimant went down the steps one at a time and when he exited the bus and got to the pavement, he looked up at the witness and then laid down on the ground. The witness exited the bus, asked claimant what the problem was and claimant said he hurt his back. He told claimant to get up because, in his opinion, claimant was not hurt. Claimant was removed from the area by stretcher approximately 45 minutes later.

Frank Paterno also testified at trial. Mr. Paterno is a former employee of DOCS and was so employed for 27 years. He stated he retired in June 1998 as a Correction Sergeant. On May 7, 1998 he was working at Ulster and was the supervisor of a transport bus. On this date there were three other DOCS employees on the bus with him, the driver and two C.O.s. He remembers seeing claimant before he got on the bus at Eastern, but he could not recall if claimant had leg irons on at that time. Whether an inmate is placed in leg irons before or after he boards the bus is a discretionary determination made by the supervisor, in this instance himself. He doesn't recall if the bus stopped so that the C.O.s could get something to eat or drink that day but the bus had stopped on other occasions so the C.O.s could get a beverage.

Sgt. Paterno did not witness the incident on May 7, 1998 but became aware of it when he heard C.O. Mason telling claimant to get up off the ground. At that time, Sgt. Paterno was on the driver's side at the rear, retrieving inmate records and identification cards from the vehicle's storage area. The witness walked around the bus and saw claimant lying on the ground by the door. He remembers seeing claimant handcuffed and saw claimant's crutches but doesn't remember seeing leg irons.

Mr. Paterno testified that an Unusual Incident Report is normally generated when an inmate has an accident. He does not know if the report was prepared regarding this incident because it would have been the responsibility of the Downstate Watch Commander to prepare this document. The witness did make a notation on his Trip Report that claimant had an accident (see Exhibit 1). The information included on this document was received from C.O. Mason. The witness wrote claimant "step [sic] off bus at Downstate and fell to the ground" (Exhibit 1).

On cross-examination, Mr. Paterno stated that he was informed claimant stepped off the bus and then laid down on the ground. He further stated that claimant did not respond when asked what had occurred.

The State owes a duty of reasonable care to inmates incarcerated in a State facility (
Sanchez v State of New York, NY2d [November 21, 2002]; Flaherty v State of New York, 296 NY 342). The State must act as a reasonable person in maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injuries that might result, and the burden of avoiding the risk (Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997, 998). However, the State is not an insurer of the safety of its premises, and negligence cannot be inferred solely from the happening of an accident (Condon v State of New York, 193 AD2d 874). The State is responsible in the operation of its institutions only for hazards reasonably foreseen and risks reasonably perceived (Flaherty v State of New York, 296 NY 342, supra). Therefore, to impose liability upon the State as an owner of property, a claimant must establish that a hazardous condition existed, that the State either created the condition or had actual or constructive notice of it, but failed to take reasonable steps to eliminate the hazard (Miller v City of Syracuse, 258 AD2d 947). "To establish constructive notice, the defect must be visible and apparent, and must exist for a sufficient length of time before the accident so as to permit the defendant's employees to discover and remedy it" (Salkey v New York Racing Assn., 243 AD2d 621).
As the trier of the law and facts, the resolution of the credibility of the respective witnesses is within the province of this Court (
Raynor v State of New York, 98 AD2d 865). Based upon the Court's observation of the witnesses and their demeanor at trial, the Court finds a lack of credible evidence sufficient to establish that defendant was negligent and that such negligence either caused or contributed to claimant's accident.
While none of the C.O.s could remember if the bus stopped at a store for beverages[4]
, as claimant stated, all three remembered the incident with claimant. C.O. Mason testified that since claimant was walking with the aid of crutches, he put the leg irons on claimant after claimant was on the bus and he removed the leg irons before claimant exited the bus. Retired Sgt. Paterno testified it was within the discretion of the supervisory C.O. whether to put leg irons on an inmate before he boards a bus. Further, none of the officers remember drinking beverages on the bus on the date of this incident or having a beverage spill on the bus steps. In addition, Paterno and Jamrozy exited the bus prior to claimant and Mason was standing at the top of the stairs as claimant exited the bus, yet none of them saw any spilled liquid on the steps or any other dangerous or hazardous condition.
The only documentary evidence regarding the incident, the Trip Report prepared by Sgt. Paterno (Exhibit 1), reports that claimant stepped off the bus at Downstate and fell to the ground. It does not state that claimant fell off the bus, as claimant asserts. The written report is consistent with C.O. Mason's testimony that when claimant reached the pavement after disembarking he just laid down voluntarily. In reviewing the totality of the testimony, the Court finds the combined testimony of the C.O.s to be internally consistent, genuine and credible. In addition, the Court cannot help but wonder why none of the claimant's health records, or any other documentary evidence, demonstrate either an injury or follow-up care in relation thereto.[5]

Thus, the Court finds that claimant failed to establish by a preponderance of the credible evidence the existence of a dangerous condition or that the State was negligent in any manner in maintaining the bus steps or in the manner claimant was shackled. There is no basis for finding that defendant in any way caused or contributed to claimant's mishap.

In accordance with the foregoing, the claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision, are now denied. The Clerk of the Court is directed to enter judgment accordingly.

February 25, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are from the Court's trial notes.
[2] On the right as one standing on the bus faces front.
[3]While this Officer is currently a Sgt., he was a C.O. at the time of the subject incident. For ease of reference, the Court will refer to him as C.O. Mason.
[4] Claimant's testimony is not contradicted on this point. However, such a stop, even if true, does not establish the more critical element of liquid on the step which is the alleged causal mechanism of claimant's "fall" from the bus. The "stop" is not therefore a material matter requiring determination by the Court.
[5] While the Court realizes that the extent of injury would be germane in the damages portion of this matter, the fact remains that the causation element necessary to establish liability in the first instance requires a threshold determination that some injury occurred. I cannot make that finding on this record.