David De Cayette, the Claimant herein, alleges that Defendant’s
agent, the New York State Department of Correctional Services (hereafter DOCS)
negligently failed to maintain and operate a bus it owned and operated through
its employee, causing an accident, as a result of which Claimant suffered
serious physical injury. Trial on the issue of liability alone was held on
February 1, 2005.
Claimant testified that he was housed overnight at
Downstate Correctional Facility (hereafter Downstate) on or about “May
for a deposition directed in another inmate’s case to be held at Sing Sing
Correctional Facility (hereafter Sing Sing) the following day. On the morning
of May 7th, at approximately 7:00 a.m., he was prepared for transport to Sing
Sing with shackles and handcuffs, and boarded the DOCS bus along with twenty
(20) or so other inmates. Describing the mechanics of the restraints, Claimant
said that first handcuffs are put on, “. . . then the black box is placed
on. Then a chain comes around my waist and fits into the black box. It is then
locked, two locks has been placed on the chain while it’s on my waist and
it’s kind of restrains my hand movement, both hands from going up and
down. So I have limited movement with my hand. Then you have the chain that is
placed on both of my legs . . . [at the] ankles.” [T-12-13].
correction officers were on the bus, Correction Officer Lewis and Correction
Officer D’Afflitto. Correction Officer Lewis was driving. Claimant
described the bus as “almost like an ambulance type bus but . . . bigger.
It would be two and a half times bigger than that in size and you can’t
really see nothing on our side unless you . . . [were] standing.” [T-11].
The only view out of the bus was forward, toward the windshield. The correction
officers sat in front, behind a “wire gate.” [T-11]. Claimant was
seated in the right hand side of the bus, in the last row. One other inmate sat
with him, closer to the outside area of the bus, while Claimant sat on the
inside. The bus was not equipped with seat belts.
At approximately 9:00
a.m. the bus arrived at Sing Sing, and stopped outside the fence separating the
administration building and prison from a parking area. One of the correction
officers left the bus to go to the administration building, returning shortly
thereafter. Claimant remained in his seat the whole time. When the officer
returned, Claimant said that the officer did not get back on the bus, but heard
him ask the driver if he needed assistance backing up. When the offer was
declined, the driver proceeded to back up, at a speed of “within five and
ten miles” per hour. [T-15] Claimant said that “the bus hit
something and automatically my body lift off the seat and my body . . . went
forward with the impact of the movement and my shoulder came forward and hit the
seats in front of me and I sat back and hit the back of my head and I
didn’t remember anything else.”[T-16]. He said that the impact was
“pretty severe”, but that it was “hard to say” if there
was noise. [T-16].
The next thing he remembered was regaining
consciousness in the facility infirmary and speaking briefly with Officer Lewis.
Claimant drew a diagram - not to scale - of how the accident occurred,
admitted in redacted form without certain narrative portions. [Exhibit 2]. He
explained that the diagram showed “. . . the incident, the parking area of
what generally the route I was questioned on . . . ” [T-20]. Explaining
that it showed where Claimant sat in the last row of the bus on the right-hand
side, he further explained that the “x” on the diagram shows
“where the bus was hit at or where the car that was there.” [T-22].
Although the diagram depicts a vehicle striking the DOCS bus, no explanatory
testimony was offered on direct with respect to the diagram other than that
On cross-examination, Claimant conceded that the diagram,
drawn “probably a week or so” after the accident, was based on
information received from other sources, not personal knowledge. [T-23]. Since
he could not see out of the bus except through the front windshield, and woke up
in the facility infirmary after the impact, he never saw the placement of the
bus and car outside the bus - apart from that view through the windshield -
after the accident. In later testimony he claimed to have woken up as he was
taken off the bus. Claimant confirmed that the van had five rows of seats on
each side separated by an aisle, and that he sat in the last row on the right on
the aisle side. He recalled being stopped for approximately one-half hour before
the bus started to back up. From his vantage point, he could not see the
driver’s foot, and thus did not see whether his foot was on the brake or
on the gas. He stated he was able to see the driver’s hands moving the
steering wheel to adjust around cars. When queried, however, he again admitted
that he could not see outside of the bus to know whether there were cars to get
around or not. Additionally, he stated that he did not know whether it was the
driver’s braking or an impact that caused him to move forward and back,
ultimately hitting his head on his seat back. He did not, however, fall out of
On cross-examination Claimant also became unsure as to whether
the officer who had gone to the administration building re-boarded the bus, but
then became more positive that the officer remained outside the bus. He
ultimately could not credibly say - in this Court’s view - whether the
speed of the van was increasing or decreasing prior to the collision. At trial
he seemed to state at first that there was “a bit of an acceleration at
one point . . . ” [T-38], but then said his deposition testimony to the
effect that he could not tell if the bus accelerated was consistent with trial
testimony that he could feel a “sudden movement in the bus.” [T-39].
Some time after the accident, as noted, the bus was apparently moved inside
the facility, and parked in front of the infirmary. Claimant became aware of
this, because he was awakened by a nurse giving him some type of nasal spray on
the bus, and was thus awake when he was removed from the bus. [T-42].
Officer Morris, a 36-year DOCS employee, testified concerning his
investigation of the accident occurring on May 7, 2002. As the fire and safety
officer, he was responsible for responding to all incidents at Sing Sing
involving employee or inmate accidents, fire safety, or any other safety matter
that might arise. The watch commander on that date directed him to
“report down front where there was an accident with the Downstate
bus.” [T-83]. Since he had been told that the bus had hit a car, when he
arrived at the scene within five minutes of being directed to report, he took
photographs of the car and the bus. [See
Exhibit A]. He also got on the
bus to see to the well-being of the passengers, and told them about his
“procedure.” He said that he told them that “every inmate
would be checked out in the emergency room,” that he would need
“paper reports . . . and . . . statements from everybody . . . ”
[T-84]. At his direction, Officer Richard Lewis - who had been driving the bus
- wrote a memorandum describing the accident. [Exhibit E]. The memorandum
states in pertinent part: “At approximately 9:15 AM on 5/6/02 (sic
I, C.O. R. Lewis while backing out of the admin. Bld. of Sing Sing C.F. I
backed into the front drivers side fender of a parked car . . . The Honda had
damage to the front fender DNS 45 [the DOCS bus] had no damage . . . ”
[Exhibit E]. Officer Morris also recalled that the Claimant was not unconscious
when the nurse examined him, and as he was taken off the bus on a stretcher.
Officer Morris remembered Claimant saying he couldn’t move his legs.
Richard Lewis, a now retired correction officer, also testified. He
retired on December 10, 2003. He had been employed by DOCS for over 25 years,
and had worked at Downstate for approximately 23 years. He had been working
exclusively in transporting prisoners as a “transfer officer” for
the last two years of work. [T-55]. Other than a commercial driver’s
license, the job did not require any special training. In terms of his status on
the day of the accident, he had taken and passed the motor vehicle exam for a
commercial driver’s license “about a month prior”, and
possessed a permit. [T-56]. Correction Officer D’Afflitto had a
commercial license, and was the officer in charge on May 7, 2002. As first
officer, “Officer D’Afflitto would be in charge of paperwork and
assorted things and [ Officer Lewis, as second officer,] . . . would be mostly
in charge of the inmates on the bus and also driving the bus.” [T-57].
Officer Lewis’s description of the bus differed somewhat from
Claimant’s. He described the vehicle as a “mini bus, sort of like a
small school bus, vinyl seats, seats twenty inmates, . . . two to a seat, five
rows of seats on each side . . . an aisles in the middle . . . [A] large gate
with plexiglass in front of it with a door . . . separated [the inmates] from us
. . . ” [T-58]. The correction officer who was not driving sat behind the
plexiglass, with the inmates to his left. Inmates could not see out of the bus
without standing up. There was no view through the front windshield for the
inmates. In order to back up the bus, the operator would use four (4) side
mirrors. There were two mirrors that were elongated in shape one on the
driver’s side, and another on the passenger’s side, as well as two
round mirrors on each side. The rearview mirror was used to watch inmates. The
bus had an automatic transmission.
Officer Lewis recalled leaving Downstate
with eighteen (18) inmates at approximately 7:30 a.m. on May 7, 2002, and
arriving at Sing Sing at approximately 8:30 a.m. The weather was sunny and
clear, and the trip took the usual hour. Officer Lewis identified a roster
showing the names of the inmates who he transported on that day, including
Claimant. [Exhibit B]. None were familiar to him prior to that day, and only
Claimant’s name was familiar now. The security measures taken were
described in the same fashion as Claimant had described them. All inmates
remained in the same positions they had occupied from their departure from
Downstate to their arrival at Sing Sing.
When the bus arrived at Sing Sing
and stopped outside the administration building, Officer D’Afflitto exited
the bus, giving Officer Lewis the weapon he had been carrying as the officer in
charge, and went to the back of the bus to take out paperwork belonging to the
passengers. When Officer D’Afflitto returned approximately one-half hour
later, he got back on the bus, and Officer Lewis returned the weapon, asking
Officer D’Afflitto if he was ready to go. Receiving a positive response,
Officer Lewis put the bus in reverse, keeping his foot on the brake.
noted that the bus “goes back on its own a little bit . . . there’s
a slight upgrade from the administration building . . . to where . . .[Officer
Lewis] had to back up to make a turn to go around to the gate . . .” for
the inmate drop-off point. [T-66]. He checked his mirrors, and looked around as
well. As he looked in the driver’s side mirror, reversing slowly “.
. . because . . . [he] was a new driver to the bus...”, he noticed a
vehicle trying to make its way around the bus on the passenger side. [T-67]. He
thought that he had “totally stopped because . . . [his] foot was on the
brake at the time and then by the time . . . [the vehicle] went around . . .
[the bus] and . . .[Officer Lewis] had turned around and looked in . . . [the]
other mirror, . . .[he] noticed that . . .[he] had backed into a small car . . .
[The] rear passenger fender-bumper [of the bus] hit his fender, driver’s
side.” [T-67]. Officer Lewis maintained that from the time he put the
vehicle in reverse to the time he hit the parked car his foot never left the
brake and never hit the gas. Officer D’Afflitto had been doing paperwork
throughout the incident, looking up from his writing only when Officer Lewis
exclaimed aloud “Oh, s**t, Louie, I hit that car.” [T-68]. After
Officer Lewis’s exclamation, some inmates “. . . stood up to look
out the small window at the top . . .and then they made some comments that . . .
he hit that car. He wrecked that car . . . [Claimant] was one of the inmates
that stood up and looked out the window.” [T-68-69].
did not see any inmates fall off their seats, nor did he hear the sound of
anyone striking the seats within the bus, or any noise when the bus hit the
parked car. After he discovered that he hit the parked car, Officer
D’Afflitto got out to check, and they called the facility to get
Officer Lewis remained in the bus, only observing the damage
he had done to the black Honda “when . . . [he] backed out later on, . . .
[and saw] that there was a small dent in the fender.” [T-71]. He
identified the first of the series of photographs in Exhibit A as a photograph
of the bumper of the minibus, and the remaining photographs were of the damaged
Honda. Using the photographs, Officer Lewis indicated that it could be seen that
the bus’s bumper scraped along the fender of the Honda, “. . . and
then bent it in when it finally probably stopped against it.” [T-72].
After Officer Lewis’s exclamation, inmates started calling out their
various alleged injuries. Claimant was not one of those complaining. Officer
Lewis identified his motor vehicle accident report [Exhibit D], and the
memorandum he wrote to Officer Morris. [Exhibit E]. He said Claimant was not
unconscious as far as he knew.
On cross-examination, Officer Lewis confirmed
he had been a transport officer since January 2002, and had driven the type of
bus involved “a couple of times.” He also indicated that the
windows on the sides of the bus were “elongated . . . from . . . right
around where the second seat of the bus [is] all the way toward the back and
they’re about eight inches wide . . .” [T-78].
On re-direct he
explained that from a seated position in the inmate portion of the bus the
windows are approximately an “arms-length” above. [T-80]. One
cannot see out of the windows except when standing.
D’Afflitto, testified essentially to the same series of events as did
Officer Lewis. He indicated that he did not see Officer Lewis’s foot on
the pedals from his seated position on the bus, he could feel the bus moving
backwards “very slow . . . walking speed,” [T-106], and only became
aware that there had been an accident when he heard Officer Lewis exclaim,
“Oh, s**t, I think I hit a parked car.” Officer D’Afflitto
had been looking down, doing paperwork, from the time he got back on the bus
after checking in with administration. He did not feel any “jolt” of
the bus, did not observe any inmates thrown from their seats - indeed, his
paperwork was not moved about and he had continued writing until Officer Lewis
told him he’d hit the car. When Officer D’Afflitto got off the bus,
he saw the back bumper of the bus was against the parked car. Officer
D’Afflitto identified the photographs in Exhibit A as depicting first the
bumper area of the bus, and then the damaged Honda. He said there were
scratches and a small dent, and the fender was pushed in slightly.
Thereafter, Officer Morris came, as did some other individuals he did not
recognize. The witness identified the report he wrote of the incident in
memorandum form directed to Lieutenant Artuz. [Exhibit 1]. Officer
D’Afflitto said that after they arrived at the infirmary area in the bus,
Claimant said he “couldn’t move . . . was paralyzed” at which
point the nurse came on the bus, and Claimant was moved off on a stretcher.
Officer D’Afflitto confirmed that he had a full commercial
driver’s license on the day of the incident.
Admitted on consent,
without explanation, is a repair estimate from Star Collision showing the cost
of repairing damage to the Honda identified by Officers Lewis and
D’Afflitto in their reports, as $518.00 (rd). [Exhibit 3].
documents admitted on consent, without explanatory testimony, include a report
of inmate injury form, [Exhibit C], a motor vehicle registration document
[Exhibit F], and what appears to be log sheet for the day containing notations
of the accident. [Exhibit G]. The report of inmate injury form, dated May 7,
2002, indicates that Claimant claimed he suffered from whip lash and paralysis
from the neck down, and also indicates he was neither taken to the facility
hospital nor to an outside hospital, but to a housing unit, and was advised to
follow up at sick call.
The Court took judicial notice of Vehicle and
Traffic Law §501(5) allowing an individual with a commercial driver’s
license learner’s permit to drive a motor vehicle provided he is
accompanied by a person who has a commercial driver’s license.
No other witnesses testified and no other evidence was
To establish a prima facie
case of negligence the
following elements must exist: (1) that defendant owed the claimant a duty of
care; (2) that defendant failed to exercise proper care in the performance of
that duty; (3) that the breach of the duty was a proximate cause of
plaintiff’s injury; and (4) that such injury was foreseeable under the
circumstances by a person of ordinary prudence.
As an initial matter, no
evidence of any failure to maintain the vehicle was introduced and, accordingly,
any cause of action premised on that theory is hereby dismissed.
significantly, however, Claimant has failed to establish that Defendant breached
any duty of care owed to Claimant. The consistent, credible testimony offered
herein is that the driver of the prison bus utilized the safety equipment
present - namely the side view mirrors - utilized his senses, and took
reasonable precautions when reversing at a barely perceivable speed and,
nonetheless, suffered an impact so slight with a parked vehicle, that it did not
even disrupt the passenger writing paperwork in the front seat. What more
should the driver have done? Just because an accident occurs when a driver has
used every available precaution does not mean that he is then liable in
negligence to his passengers. The Court cannot credit the unreliable testimony
of the Claimant - who was not in a position to actually see what occurred - and
who varied his testimony as to what he experienced with his other senses. The
only credible witnesses to this accident, namely, Officers Lewis and
D’Afflitto, confirm that the side-view mirrors were consulted before the
bus even began to move, that Officer Lewis was aware of his surroundings, and
that the vehicle was being operated so slowly - “walking speed” -
that Officer D’Afflitto continued to write as the bus moved.
Accordingly, Claim Number 107869 is in all respects
Let Judgment be entered accordingly.