This is a timely filed claim by Colleen Howell (hereinafter
“claimant”) for personal injuries as the result of defendant’s
alleged negligence. On July 5 and 6, 2005, a bifurcated trial was held to
On September 26, 2002, claimant was operating her
vehicle in an easterly direction on the Northern State Parkway. During the
course of her operation, claimant struck the center median and a curb which
caused both tires on the passenger side of her vehicle to go flat forcing
claimant to drive on the parkway on her rims. Two civilian drivers managed to
stop claimant from proceeding in traffic. One of the drivers got in front of
claimant’s vehicle, while the other got behind her vehicle. The drivers
eventually slowed down, causing claimant to stop her vehicle in the right lane
of the parkway. This occurred west of State Route 110 at approximately 8:30
Trooper Maureen Cangiano responded to the scene after the witnesses
contacted the New York State Police. At this same time, a passing ambulance was
flagged down by one of the civilian motorists. Two Emergency Medical
Technicians, James Andruscavage and Colleen Thompson were in the ambulance.
The testimony of defendant’s witnesses was confusing as to who
arrived first and who approached the claimant first to speak with her.
According to Trooper Cangiano and EMT Colleen Thompson, Trooper Cangiano arrived
at the scene first. EMT Andruscavage recalls that he and Ms. Thompson arrived
first and that he was the first to speak with claimant. The exact order as to
who arrived first is unimportant. Rather, it is noteworthy that Trooper
Cangiano and Mr. Andruscavage each spoke to claimant.
The EMTs approached
claimant. EMT Thompson first observed claimant as Trooper Cangiano was beside
claimant’s vehicle and attempting to have claimant exit her vehicle. She
testified that claimant was giving Trooper Cangiano a hard time. Based upon her
observation of the claimant and her experience, EMT Thompson opined that
claimant was high on some type of drug. EMT Andruscavage says that he
approached claimant and spoke directly to her. According to him, claimant was
upset and crying. Claimant did not appear to be injured or in any type of
physical distress. Claimant denied any injuries, past medical history or drug
use to EMT Andruscavage. He described claimant as responsive and alert. Both
EMTs indicated that claimant did not want any medical treatment and both were of
the opinion that she was not in need of hospitalization.
Cangiano approached claimant’s vehicle to speak with claimant. She
testified that claimant would not respond to any questions and was not making
sense in the things that she was saying. Trooper Cangiano returned to her
vehicle and radioed for backup and an ambulance. According to the testimony,
she was not sure yet if she was dealing with someone drunk, on drugs, sick or
injured. Upon returning to claimant’s vehicle, Trooper Cangiano noticed
the driver door was unlocked. The trooper opened the door and ordered claimant
to exit her vehicle. Claimant did exit the vehicle but was screaming and
hostile toward Trooper Cangiano.
Trooper Cangiano attempted to perform a
field sobriety test but claimant refused to cooperate. Claimant then took a
swing at Trooper Cangiano’s face. The trooper says that she managed to
avoid the blow mostly but was grazed on the chin by claimant. Trooper Cangiano
immediately informed claimant she was under arrest. Claimant began to resist
arrest while being handcuffed, dropping to her knees, refusing to move. Trooper
Cangiano says she was aided by the EMTs in placing the handcuffs on claimant.
The EMTs also helped carry claimant to the trooper’s vehicle, because
claimant would not move. Upon being placed in the rear of the trooper’s
vehicle, the witnesses described claimant as thrashing about and
While claimant was in the trooper’s vehicle, another
ambulance arrived. After going through claimant’s pocketbook, Trooper
Cangiano was able to identify the claimant. One of the new ambulance crew,
Robert Boyle, recognized claimant’s name. Mr. Boyle is a Nassau County
Police Detective and recognized claimant as being the daughter of Robert Howell,
a fellow detective and the president of the Nassau County Detectives
Association. Mr. Boyle called claimant’s father from the scene and told
him that his daughter had been arrested.
Claimant was transported to the
Brentwood Barracks by Trooper Cangiano. She was followed by Trooper Hernandez
to the Barracks. Upon arrival at the Barracks, at approximately 9:30 p.m.,
claimant exited the vehicle and walked into the building. Claimant walked under
her own power but had a trooper at each elbow escorting her. Trooper Cangiano
states this was necessary because she believed claimant could have been a flight
risk based upon her behavior at the scene.
Claimant was escorted into the
squad room and directed to a bench used for arrestees. The bench is about six
feet long, twenty-six inches deep and eighteen inches off the ground. There are
rings attached to the bench where criminal defendants can be handcuffed. In the
squad room, Trooper Cangiano removed a handcuff from claimant’s right
wrist and handcuffed her left wrist to another pair of handcuffs attached to one
of the rings attached to the bench. This gave claimant approximately eighteen
inches of handcuffs from her wrist to the ring.
While on the bench,
Trooper Cangiano and Investigator Patrick Colgan
indicated that claimant was yelling, abusive and moving from a sitting to a
lying down position and back up again. Investigator Colgan had been called to
the Brentwood Barracks because he is a drug recognition expert (DRE). A DRE is
called in to examine a defendant where there is suspected drug use. After an
arrestee is tested for alcohol and the results are not consistent with the
arrestee’s behavior, then a DRE performs tests to determine if there has
been drug use. Investigator Colgan testified that he was unable to examine
claimant because she was uncooperative with Trooper Cangiano. Without
submitting to the alcohol tests, Investigator Colgan was unable to test for
At about 9:45 p.m., claimant’s father arrived at the
Barracks. He identified himself as claimant’s father and as a Nassau
County Police Detective.
Investigator Colgan and Trooper Cangiano spoke with Mr. Howell. He indicated to
the troopers that his daughter had a history of abusing prescription
During this short conversation, screaming could be heard from the squad room.
The troopers asked Mr. Howell if he would try to get his daughter to calm down.
Mr. Howell testified that he entered the squad room and went over to the bench
where his daughter was. The witness testified that claimant was lying down on
her back, screaming and shaking all over. The screams were just sounds, not
words. Mr. Howell went over to his daughter and tried to communicate with her.
Claimant was unresponsive to her father. He described claimant’s eyes as
“fixed” and rolling back into her head. The witness made a
determination that she had overdosed and was having a
Mr. Howell said he inquired of Trooper Cangiano why his daughter had not been
shipped to a hospital. According to this witness, Trooper Cangiano responded
that claimant was under arrest and people under arrest are not transported to
the hospital. Trooper Cangiano then asked Mr. Howell if he could help identify
some of the pills in claimant’s pocketbook. As he got up and took a step
or two, Mr. Howell said he heard a thud, like a watermelon hitting the floor.
Mr. Howell turned to see claimant lying face down on the floor, in a pool of
Trooper Cangiano and Investigator Colgan testified that they spoke
to claimant’s father and invited him in to speak with his daughter to calm
her. Trooper Cangiano said she was about four feet from claimant when Mr.
Howell went to his daughter. She was trying not to pay attention to any
conversation claimant and her father might be having. Investigator Colgan said
he was approximately 10 feet away from claimant, standing in the hall. He
indicates that he could see claimant changing her position from sitting up to
lying down and back again. Investigator Colgan says he could not hear if
claimant was responsive to her father but he could hear Mr. Howell. According
to Investigator Colgan, Mr. Howell was on the bench next to his daughter,
rubbing her back and trying to talk her into cooperating. Both troopers
testified that Mr. Howell did not ask about his daughter being sent to a
hospital. Investigator Colgan said that while he was watching claimant start to
switch positions again (from sitting to lying down), he noticed claimant start
to go forward and roll to her left. Claimant then fell on her face.
Claimant also testified. She indicated that she had taken Motrin and
Proidium (for her bladder) earlier on September 26, 2002. In addition, claimant
indicated that she was prescribed Percocet to deal with pain from an operation
she recently had. Claimant was also taking Fioricet for migraine headaches.
Claimant testified that the last couple of times she had taken Fioricet, she
became nauseous, shaky, would get hives and experience memory loss. Claimant
took a dose of Fioricet at 6:30 p.m. on the incident date. Claimant testified
that she had no clear recollection of the entire incident. Most of what she
knows of the incident is from what others have told her. She described the
experience as “dream like”. Claimant remembers getting into her car
to go to her parents’ house and the next clear recollection she has is
waking up in the hospital a couple of days later.
It is the
claimant’s theory that defendant was negligent in not transporting her to
the hospital, given her condition. Put another way, claimant accuses defendant
of negligently supervising her while in defendant’s custody.
police officer, who arrests an intoxicated person, must exercise the degree of
care necessary, given the circumstances, to assure the safety of that person
(Parvi v City of Kingston
, 41 NY2d 553). The same duty extends to all
prisoners - those that are impaired by drugs or alcohol or mentally impaired, or
those without such impediments. An officer must use reasonable care
“given the circumstances”. Other jurisdictions imposed a heightened
duty of care on an officer when dealing with an impaired prisoner (Barlow v
, 257 La. 91). However, Louisiana further defined the duty owed
as not absolute but must be reasonable under the circumstances declaring that an
officer is not an insurer of a prisoner’s safety just because the prisoner
is intoxicated (Gibbs v State of Louisiana
, 524 So.2d 817).
of the duty owed to claimant turns on the question of whether the resulting harm
was a reasonably foreseeable consequence of defendant’s acts and/or
omissions (Johnson v State of New York
, 253 AD2d 274).