New York State Court of Claims

New York State Court of Claims

SLOCUM v. THE STATE OF NEW YORK, #2004-034-009, Claim No. 106767


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:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

On October 9, 2002, Claimant filed a Claim[1]
to recover for negligence and/or battery relating to the alleged excessive use of force by the New York State Police in effectuating her arrest on July 25, 2002. By agreement of the parties the question of liability became bifurcated from damage issues, and proceeded to trial before me on May 26 and 27, 2004. During the trial Claimant testified, and also called three witnesses on her behalf: Richard Harder, Karen Miller, and Jody Spotts. Defendant, in turn, presented testimony from five witnesses, all employees of the New York State Police: Kevin Anger, James Kania, Ronald Jakubczyk, Paul Storms, and Kevin D. Kailbourne. Twenty-one exhibits also were introduced into evidence. Now, upon review of the evidence presented, as well as each party's post-trial submission, I will deny and dismiss the Claim, finding as follows.
Claimant is a 46-year-old native of Allegany County. She is a high school graduate, and has earned some college credits. Her work history includes factory jobs in Oklahoma and Texas, and a variety of service jobs in the Wellsville, New York, area. Since late 1998 or early 1999 Ms. Slocum has been unable to work due to a disc herniation purportedly sustained while employed in a grocery store. As a result, she receives Workers' Compensation benefits. Claimant also testified that she is openly gay, a factor she raised as relevant to some arrest-related proof. Ms. Slocum reported that for the last seven years she has had a partner, Lori Graves, who was not called as a witness in this case.

The incident that served as the basis for this suit occurred in the early morning hours of Thursday, July 25, 2002, on Hog Brook Road, in the Town of Alma. At that time Ms. Slocum resided in a third floor walk-up apartment in the Town of Allegany, although she was in the process of purchasing a home at 5458 Hog Brook Road from her parents, who lived across the road from that address. That residence had once served as her grandparents' home.

Despite her disc herniation Claimant spent much of Wednesday, July 24, 2002, cleaning the Hog Brook Road property. Two long-term friends, Karen Miller and Jody Spotts, helped her clean, an activity that appears to have continued into the evening hours. All three began drinking beer at approximately 5:00 p.m., with Claimant purportedly consuming three or four 12-ounce bottles of Coors Lite Beer over the five-hour period that followed. Ms. Spotts estimated that she drank two or three beers during that same time.

At approximately 9:30 to 10:00 p.m. Claimant and Ms. Spotts left the residence and drove to Wellsville, a trip that took approximately 15 minutes. In so doing they used a 1983 Buick four-door sedan that was owned by Richard Harder, another long-term friend of Ms. Slocum. Mr. Harder owned more than one car, and would allow Claimant, who did not own a vehicle, to use his Buick for extended periods of time. Ms. Slocum and Ms. Spotts each reported that they drove to Wellsville to meet an unnamed friend at a bar, P.J.'s Pub, a purpose inconsistent with the recollection of Ms. Miller, who testified that she believed they had traveled to Wellsville to purchase cigarettes. Regardless of initial plans the two did go to P.J.'s Pub, while Ms. Miller remained at the Hog Brook Road address. The Court notes that Ms. Slocum required eyeglasses to drive, but she left them behind as she traveled to Wellsville that night.

Claimant and Ms. Spotts arrived at P.J.'s Pub at some point between 9:45 and 10:15 p.m. Each testified that they remained at that bar for approximately two hours, during which they each consumed the same number of drinks: two bottles of Coors Lite Beer and either one or two shots of tequila. They left around midnight, without their friend having appeared. While Claimant went to the car Ms. Spotts entered a nearby convenience store to purchase cigarettes. Claimant then proceeded to drive them back to her planned new home.

Hog Brook Road in the area of Claimant's home is two lanes wide, and located in a setting that can fairly be described as rural. As Claimant and her passenger reached that road, and traveled to within a half mile of their destination, she felt sick to a point of needing to stop her operation of the Buick. She testified that she moved the car as close to the edge of the road as she could, while avoiding an adjoining drainage ditch. Admittedly too intoxicated to drive the rest of the way home, she then turned off the car's ignition and lights, experienced some brief nausea, and in her words "passed out." Ms. Spotts, who denied having a driver's license, and also felt somewhat inebriated, decided not to take control of the car and drive the short distance that remained, and instead fell asleep in the front passenger seat. The two denied smoking marijuana at that point, or at any other time that night, notwithstanding the troopers' later discovery of a small quantity of that drug and a pipe underneath the front seat of their car. From their estimate of the time they left the bar, and the travel time from Wellsville, the two would have passed out or fallen asleep at some point shortly before 12:30 a.m. on July 25.

Troopers Ronald Jakubczyk and Paul W. Storms have each been employed by the New York State Police for approximately 14 to 15 years. During 2002 they were assigned to the Wellsville barracks, performing road patrol duties. Under a departmental practice, during late night shifts troopers would stop their single-person patrols and instead be assigned to work in pairs. In the early morning hours of July 25, 2002, the two troopers worked together, patrolling all of Allegany County in a marked vehicle driven by Trooper Storms. At 2:31 a.m. the two received a radio communication to investigate a complaint that a car was blocking the road on Hog Brook Road. They responded and arrived on the scene at 2:48 a.m. According to the officers they discovered Claimant and her passenger asleep in the front seat of their car, parked in the driving lane. When the two failed to respond to the beam of the patrol car's spotlight, the troopers positioned their vehicle directly behind the Buick, turned on the cruiser's overhead spotlights, then approached the occupants. Trooper Storms moved to the driver's side door, where he called out to identify himself to the occupants, knocked on the window, and illuminated the inside with a flashlight, all without disturbing Claimant and her passenger. Storms advised his partner that the two were asleep, then opened the driver's side door to again attempt to awaken Claimant. At that point Trooper Jakubczyk moved from the rear of the Buick, where he had been standing, to the passenger side door. He was able to open the door and awaken Ms. Spotts, who then joined them in attempting to arouse Ms. Slocum, with some success. Ms. Spotts also helped Claimant as she fumbled with her seat belt.

Significant discrepancies exist between the testimony offered by the car's occupants, and that of the two troopers, as to what subsequently ensued. Ms. Spotts recalled that Trooper Jakubczyk had her exit the passenger side. As the two stood along side the car she noticed the Buick shake, and heard Claimant state "please stop hurting me." She then observed Trooper Storms and Claimant standing at the driver's side of the car. According to the witness, the trooper held Claimant by her upper arms, then pushed her back against the side of the car, which again caused it to shake. Purportedly, Trooper Jakubczyk then said the word "hey," and the two officers immediately changed their positions, without any further discussion. Ms. Spotts did not report a single hostile word or act by Trooper Storms from that point forward, although she did note that he seemed angry as he later searched their car, and told her not to interrupt when she asked a question while the two troopers were talking.

Ms. Spotts described Trooper Jakubczyk, in contrast, as very professional. Although she had never met either officer before that night, she remembered Trooper Jakubczyk as being quite a bit older than Trooper Storms. She also acknowledged that shortly after the incident she had believed that Trooper Jakubczyk had a mustache, but that Claimant had later corrected that recollection. The Court notes that in their testimony each of the two troopers denied having had a mustache, and Jakubczyk established that he was actually several years younger than Storms.

Claimant testified to first being awakened by a bright light shining into the car. When the light was turned off, she again put her head back and resumed sleeping. She did not remember the officers or Ms. Spotts attempting to again awaken her, and did not recall that her passenger assisted her with her seat belt. Claimant did remember being grabbed by her upper left arm as she unfastened her seat belt. She recalled hearing Ms. Spotts speaking to someone at that point, but could not see the other party to that conversation. She was then pulled from the car by a man she later identified as Trooper Storms. As the officer held her by her upper arms she asked him to stop hurting her. He reportedly said nothing, but pushed her against the side of the car, in the area of the rear door. At that point she stated "please stop hurting me," after which the trooper again took her by her upper arms and pushed her a second time, hard against the side of the car. In so doing he released his grip on her arms. The force caused her knees to buckle to some extent, yet she was able to remain standing. She also felt pain in her back area. During the pushing incident the trooper said nothing to her, and she said nothing to him beyond the requests previously noted.

After the second pushing incident Claimant looked across the car and heard a second individual, whom she later identified as Trooper Jakubczyk, say the word "hey." According to Ms. Slocum it was Jakubczyk who subsequently requested that she perform field sobriety tests, including a purported backwards alphabet recitation that she refused to attempt. She also recalled that Trooper Storms was the individual who searched her car and discovered the marijuana.

The two troopers, in contrast, denied that any shoving incident had occurred. Each testified that it was Jakubczyk and not Storms who helped Claimant exit the car. Whereas Claimant either denied or did not recall any conversations when the police first arrived, both troopers testified to their attempts to awaken her, and to Ms. Spotts' efforts to assist them in that regard. Trooper Jakubczyk recalled that Claimant initially told him to leave her alone, stated that she was at home, and asked why he was bothering her, as she repeatedly woke up and went back to sleep over a three to five minute period of time before he removed her from the car. In so doing Jakubczyk had to hold her briefly by her arms and elbows as she initially wobbled and staggered. Even after first exiting the vehicle Claimant repeated her challenge as to why Trooper Jakubczyk was bothering her, since she was home, and had done nothing wrong.

At the back of the Buick, in an area illuminated by the lights of the patrol car, Trooper Jakubczyk then had Claimant perform several field sobriety tests. During the heel to toe test Claimant simply staggered as she stepped, without placing one foot immediately in front of the other. She refused to attempt a one-leg stand, as well as his request that she state the letters to the alphabet. The officer denied that he had asked her to recite the alphabet backwards. She did attempt to perform a finger to nose test with her eyes closed, but opened her eyes after she failed to touch her nose with her finger. Trooper Storms, who has taught classes in drug detection at the State Police Academy, then performed a simple "HGN" light stimulus test on Claimant's eyes to determine whether she might have used marijuana in addition to alcohol. In his opinion she failed that test, at which point Trooper Jakubczyk searched the Buick and found a small amount of marijuana and pipe under the car's front seat.

The troopers arranged for a tow truck to remove the Buick from Hog Brook Road, then drove Claimant and Ms. Spotts to the Wellsville barracks for processing. Ms. Slocum was handcuffed at that time, although Ms. Spotts may not have been so restrained. During that trip Ms. Slocum made no comment about pain or injury. However, according to Trooper Storms, while en route Claimant did state that her boyfriend had pushed her down a flight of stairs, and when he asked her if she wished to file a police report for that incident she responded to the effect that the police did not care about her. The Court notes that Ms. Slocum has denied that statement, and has further indicated that as a gay woman she would not have had a boyfriend. Neither Ms. Spotts nor Trooper Jakubczyk remembered hearing any such conversation.

Once they arrived at the barracks Trooper Storms conducted a multi-part breathalyzer test at approximately 4:00 a.m. Claimant initially experienced difficulty in understanding the warnings and directions that Storms provided in conducting the test. Sergeant Kevin Anger, who supervised the Wellsville station that night, found it necessary to assist Trooper Storms in helping Claimant comprehend those test warnings and processes, in part because of her noncompliance with Trooper Storms' request that she use deep rather than shallow breaths to provide a testing sample. In the process Sergeant Anger observed that Claimant appeared to be very intoxicated, and also disoriented. The desk officer on duty that night, James J. Kania, also observed Ms. Slocum at the Wellsville barracks, and likewise concluded that she was intoxicated, specifically noting that she appeared unsteady on her feet as Trooper Jakubczyk escorted her into the station.

The breathalyzer test consisted of two components, and Trooper Storms testified that the result was a .20 for the infrared test, and a .21 for the electrochemical test. Claimant was charged with Driving While Intoxicated, which became a felony due to an earlier conviction she had sustained for that same offense. In addition, she received a ticket for parking on the road pavement, and both she and Ms. Spotts were charged with a marijuana-possession offense. Despite an earlier threat to retain Claimant in custody overnight if she did not properly perform the breathalyzer test, the troopers then telephoned Mr. Harder to request that he drive the two women home. He did come to get them and took them to the Hog Brook Road address. During that ride, Claimant did not complain of any injury, although she was quite upset at having been charged with a felony.

Once home Claimant slept until close to noon. When she arose, she felt pain in her back, and first discovered the bruise in issue. She did not take any medication for that injury. Throughout the afternoon she talked with her friends about possibly registering a complaint or seeking medical treatment, without taking action. During that time she helped Mr. Harder retrieve the Buick from the towing service, returned briefly to her apartment in Allegany, and performed other errands. It was not until the mid-evening that Claimant determined to drive to Cuba Memorial Hospital and report that she had sustained bruises to her back and arm areas during her arrest. Emergency room personnel took photographs of Claimant's bruises, and telephoned the Wellsville station to report the complaint. By coincidence Trooper Jakubczyk answered that call, and thus learned even before an investigation commenced that Ms. Slocum had claimed excessive force in the course of her arrest, and had specifically identified Trooper Storms as her assailant. Jakubczyk then followed a protocol of immediately contacting his zone supervisor, Sergeant Kevin D. Kailbourne.

Upon being notified Sergeant Kailbourne drove to the hospital and interviewed Claimant. He also photographed the areas of Claimant's body where she had claimed injury. While examining bruises on Ms. Slocum's hand and forearm areas he noted their faded coloration and expressed the belief that they appeared to be older injuries. Claimant then advised him that those injuries were probably sustained in the cleaning of her new house. While at the hospital he also spoke with Ms. Spotts. He then met separately with Storms and Jakubczyk, and requested a written summary regarding the arrest from each of them. Sergeant Kailbourne denied discussing the substance of Ms. Slocum's allegations with either officer. The zone supervisor continued his investigation over the next several days, during which he interviewed Mr. Harder, and examined the Buick to determine possible sources of Claimant's bruising.

As the proponent of a claim Ms. Slocum possesses the burden of establishing her right to recovery, measured by a fair preponderance of credible evidence (
see Rinaldi & Sons, Inc. v Wells Fargo Alarm Serv., Inc. 39 NY2d 191, 196 [1976] [negligence claim]; Kalra v Kalra, 149 AD2d 409, 411 [1989] [assault and battery claims]). In my view she has failed in that burden. To find in Claimant's favor I need to be able to credit significant portions of the testimony of Ms. Slocum and/or her passenger concerning the events on Hog Brook Road. I cannot rely with any degree of comfort upon their testimony, mostly for reasons that relate to their intoxication and lack of candor regarding the amount of alcohol they had consumed that night.
Claimant was so drunk she could not drive her car the last half mile down a rural country road to get home. Her judgment was clouded to the point of determining to park that car within a traffic lane of the road itself. Two hours after passing out behind the wheel her functions remained so impaired that when first aroused by a police spotlight she reacted by going back to sleep. Such conduct is disturbing in that it reflected either a physical inability to remain awake, or a lack of responsibility by an occupant of a vehicle on a roadway. That lack of concern for other motorists or her own safety is especially egregious when the context is considered: an unlocked car, on an isolated stretch of roadway, in the middle of the night. It also is hard to credit Claimant's recollections and powers of observation when upon being awakened the second time, she did not understand that she was parked on a roadway, and not the driveway of her intended home. So also, her recollection regarding the field sobriety alphabet test is incredible, and again reflective of her degree of intoxication. It simply makes no sense for the troopers to ask Ms. Slocum to undergo various sobriety tests in proper form, then unfairly trick her with a reverse alphabet request. Similarly, it makes no sense that the officers would reverse the roles that each had in the course of the incident, since any lessening of responsibility on the part of Trooper Storms would only increase the culpability of Trooper Jakubczyk.

As to the dispute regarding the location of the car on the road surface, it is hard to accept Claimant's assertion that she had parked as close to the adjoining ditch as she could when she was too intoxicated to understand she was even on a road, and not her driveway. Further, if she had parked along the edge of that shoulderless road, some mention of a need to avoid the adjoining ditch would have been made by at least one of the three witnesses who had walked along the passenger side. The Court will instead credit the testimony of the arresting officers that the Buick was parked within the driving lane of Hog Brook Road.

Based upon a blood alcohol testing of .20 at 4:00 a.m. it is clear that Ms. Slocum greatly understated the amount of alcohol she had consumed that night. Trooper Storms, a trained breathalyzer operator, testified without objection that as a general guide each alcoholic drink would raise a blood alcohol level by a factor of approximately .02, and that the body can metabolize alcohol at a rate of .015 per hour. On that basis Trooper Storms estimated that when Claimant left P.J.'s Pub at midnight her blood alcohol level would have been as high as .26. Even disregarding that estimate, I must conclude that Ms. Slocum drank far more at P.J.'s Pub than she and Ms. Spotts had stated. Some 11 hours had elapsed between her first drink and the breathalyzer test. Over the 4 hours immediately before that test she had consumed no alcohol. Nevertheless, Claimant's blood alcohol level remained inconsistent with her reported alcohol consumption, even if no dissipation over those many hours had occurred. That discrepancy is too significant to attribute to faulty recollection or mistake, and has impacted on her overall credibility.

It likewise is of concern that in her testimony Ms. Spotts supported Claimant's statements regarding the amount of alcohol they had consumed. That corroboration of a version of the facts that simply cannot be true raises questions regarding the weight that can properly be attached to her recollections. Other factors also impact on the reliability of the passenger's testimony. She also was concededly inebriated to some degree, and if her statement that she and Ms. Slocum drank the same number of drinks at P.J. Pub's is accurate, then her degree of impairment would have been far more than she has indicated. Her initial belief that Trooper Jakubczyk had a mustache impacts on the strength of her identification, and her admitted change in recollection after being corrected by Claimant renders her credibility highly questionable. I also am concerned that Ms. Spotts described Jakubczyk as being quite a bit older than Storms, when in fact he is several years younger. So also, it is disturbing that in the many events that quickly occurred after being awakened, her memory of Claimant's comment "please stop hurting me" would mirror the exact phrase to which Claimant testified. Further, while Ms. Spotts' decision to simply follow Claimant's lead and go to sleep on Hog Brook Road has some plausibility in light of her testimony that she was not licensed to drive, that explanation was effectively challenged in later testimony from Trooper Storms, who stated that she produced a driver's license when he asked her for identification. Her degree of friendship and contact with Claimant, and her live-in status as a care giver for Ms. Slocum's parents, have also influenced me in weighing the Claim.

The circumstances surrounding the arrest also tend to refute Claimant's allegations. Trooper Jakubczyk explained that in addressing a potential charge of Driving While Intoxicated the State Police trains its officers to attempt to promote cooperation from the driver, in order to encourage the suspect's participation in field sobriety tests and other investigative functions. Assaulting a motorist at the initial stages of such an investigation hardly promotes such cooperation. Further, the charge did not involve violence, and indeed at the time of the claimed incident Ms. Slocum had not been arrested. While the level of charge later proved to be a felony, the officers would not have known at the scene that the potential, albeit likely, alcohol-related offense would have been anything more than a misdemeanor.

The aggressiveness involved also is inconsistent with the uniform descriptions of the balance of the incident offered by all who were present. Both of the arrested individuals described Trooper Jakubczyk as very professional in his conduct. Ms. Spotts, who also at times was in the presence of each trooper separately, did not report any inappropriate physical contact directed toward her. There was no profanity or other hostile language used by anyone at the scene. There were no arguments, raised voices or threats reported. There was no other use of physical force on the part of anyone involved. No aggressiveness was demonstrated in placing the two women inside the police cruiser, or in removing them at the barracks. There is no claim that handcuffs were used in a manner that would cause pain. Despite discretionary authority to hold Claimant in custody pending arraignment for a class E felony (
see Criminal Procedure Law § § 140.20 [1] [a], 2 [a], 150.20 [2]), the troopers instead elected to release her with an appearance ticket, and arranged for Mr. Harder to take her home. Again, despite some discretion they did not request pre-arraignment bail as a condition of such release (see Criminal Procedure Law § § 140.20 [2] [b], 150.30). All of the above is inconsistent with the animus that Claimant contends was directed toward her at the side of the car.
I understand that Ms. Slocum and her passenger believe that Trooper Storms also seemed angry as he searched their car. Again, however, it is hard to credit that statement when the officers both claim that Trooper Jakubczyk was the person who performed that search. I must also consider that their excessive consumption of alcohol would have impacted on their ability to make reliable assessments of demeanor on the part of a stranger.

I will next address the allegations of injury as they would relate to the issue of liability. At this point Ms. Slocum does not attribute the series of bruises she had on her forearms, wrist and hand areas to the conduct of Trooper Storms. She also has denied making such a claim to Sergeant Kailbourne when he initially interviewed her at Cuba Memorial Hospital on the evening of July 25, 2002. However, in his testimony the investigating supervisor recalled that Ms. Slocum initially told him that her forearm, wrist and hand bruises resulted from the incident, and that she later equivocated when he stated that those bruises appeared from their faded coloration to have been older. The weight of the evidence supports a finding that Claimant did initially attribute her forearm bruising to the incident. When Claimant reported her claim of excessive force to hospital officials, emergency room personnel took three photographs, all set forth in Exhibit 3. Two were of a bruising to her lower left back, and the third was of her forearms. Similarly, five of the seven photographs that Sergeant Kailbourne took at the hospital were of Claimant's forearm and hand areas. Those photographs would not have been taken unless Ms. Slocum had initially asserted that the bruises reflected therein were attributable to the incident. Moreover, it is disturbing that when Sergeant Kailbourne challenged whether such bruises could have resulted from the incident, Claimant readily speculated that she might have become bruised while cleaning her new home. Both the ease of that initial equivocation, and her denial that she made such claims in the face of several inconsistent forms of evidence, again impact adversely on Claimant's overall credibility. It also concerns me that in a lawsuit premised upon bruising the source of a number of bruises on Claimant's body remains a matter of speculation.

With respect to the back bruise, while Claimant's position is that she sustained that injury when shoved against the protruding rear-door handle of the Buick, that assertion is a matter of conclusion rather than recollection. Ms. Slocum testified that she experienced pain after her back struck the car, but cannot affirmatively state that she struck the door handle. Rather, she has reached that belief through measurements and deductions. Claimant's back injury consisted of an elongated oval-shaped discoloration that was several inches in length. The bottom edge was located in the center left area of Claimant's back, above her buttock region, some 38 to 39 inches from the ground, possibly more if it is assumed that Claimant wore shoes at the time of the incident. All appear to agree that the door handle is located exactly 36 inches from the ground. That several inch deviation hardly precludes that explanation of the source of the injury, yet conversely does not readily establish the claim.

In support of her claim Ms. Slocum has urged me to consider the last sentence within the written reports of the incident that Troopers Storms and Jakubczyk each submitted to Sergeant Kailbourne. In each report the troopers have specifically denied that Claimant had been pushed against the side of the Buick. Since their zone supervisor testified that he did not inform them of the details of Ms. Slocum's complaint and injury, such statements could readily be viewed as betraying a knowledge of the very facts denied. That inconsistency is significant, in that it would provide some support for crediting the testimony of Ms. Slocum and Ms. Spotts. However, from the positioning of those comments within the last sentence of each statement, following more general denials regarding the use of force, I conclude that those statements must have been added by each of the officers as a response to a specific question. I note that the first references to a teletype were also added after the troopers each had prepared their initial statements. Moreover, while the statements are puzzling, the additions remain inconsistent with Claimant's assertion that Trooper Storms had pushed her, and affirmatively demonstrate that the troopers' recollection that Jakubczyk had removed Claimant from her car is not a recent fabrication. Regardless, under any view the statements do not buttress the credibility of Ms. Slocum and her passenger sufficiently to sustain her burden of proof.

The above Claim is hereby dismissed.


July 20, 2004
Buffalo, New York

Judge of the Court of Claims

[1] Denominated a "Notice of Claim"