New York State Court of Claims

New York State Court of Claims

HOWELL v. THE STATE OF NEW YORK, #2005-033-553, Claim No. 108014


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):

James J. Lack
Claimant’s attorney:
Spence & Davis, LLPBy: Brian J. Davis, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Victor J. D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 22, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

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 determine liability.
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 p.m.
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.
Trooper 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 yelling.
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 drugs.
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 medications.
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 seizure.
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 blood.
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.
A 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 New Orleans, 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).
A breach 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).
“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, 46 NY2d 1043, supra at 1046 (dissent); Johnson v State of New York, 174 Misc 2d 193, 199, aff’d 253 AD2d 274).

Raymond v State of New York, (Ct Cl, Fitzpatrick, J., Claim No. 89747, [UID No. 2002-018-200]). This Court must decide whether the actions of the troopers, given the information available to them at the time the events were unfolding, acted in a reasonable manner given claimant’s impairment.
There is no question that Trooper Cangiano, upon arriving at the location of claimant’s vehicle, had no idea what type of person she was dealing with when she first encountered claimant. To that end, Trooper Cangiano, by radioing for backup and an ambulance acted in a reasonable manner. The trooper had to assess if claimant was injured, impaired or just uncooperative. Observing a person on the inside of a car, yelling and not responding to questions or commands, does not give the answer. It was incumbent upon Trooper Cangiano to have claimant exit her vehicle to make a determination as to what she was dealing with.
While Trooper Cangiano described claimant as incoherent in the criminal information she wrote (claimant’s Exhibit 1), the Court accepts her explanation that she could understand claimant but that what she was saying did not make sense (Trial Transcript p. 108).
Claimant escalated the encounter from one which was still being investigated to one that required an immediate arrest. By physically confronting the trooper, there was no choice for Trooper Cangiano but to remove claimant from the roadside to a custodial situation. The level of contact made or whether claimant’s hand was open or closed is irrelevant. The safety of the trooper and the passing motorists dictate removing a physically combative person to a controlled environment.
While claimant was under arrest for striking the trooper, Trooper Cangiano was still trying to ascertain the initial problem at the roadside. To continue her investigation required transporting claimant to the Brentwood Barracks.
An independent determination that claimant was not in need of immediate hospitalization had already been made by trained EMTs. EMT Thompson stated that she and her partner would not have left if claimant needed to go to the hospital (Trial Transcript p. 151). EMT Thompson describes claimant as definitely being high on some drug, combative, agitated, yelling and screaming (Trial Transcript pp. 151 - 152). However, in her professional judgment claimant did not need hospitalization, nor did she want it. Claimant refused the need for medical attention.
Once at the Barracks, it appears that Trooper Cangiano and claimant were there for only a short time before Investigator Colgan arrived and then claimant’s father. The troopers were still in the middle of processing and inventorying claimant’s belongings to make a determination as to what type of drugs claimant had taken when she fell. To this point, while claimant was uncooperative, she had responded to general commands of the troopers. She exited her vehicle at the roadside when requested, she exited the trooper’s vehicle and walked into the Barracks under her own power.
Claimant does not and cannot contradict any of the testimony from the troopers as to what occurred. Claimant has no recollection of the events. While courts have lessened the burden of proof for plaintiffs who have no recollection of facts which would adduce defendant’s negligence due to death or amnesia (Noseworthy v City of New York, 298 NY 76; Fasano v State of New York, 113 AD2d 885), the Court will not extend that doctrine to this situation. Claimant voluntarily ingested drugs which she knew could lead to impairment, shaking and memory loss. The Court cannot allow claimant to voluntarily cause a memory loss and then benefit from it.
Claimant was treated like other prisoners in similar circumstances. Surely claimant cannot be suggesting that defendant should transport every person arrested for intoxication or impairment by drugs to a hospital for its investigation. The extreme symptoms reported by claimant’s father were only seen by him. The EMTs and the troopers do not describe anyone experiencing such seizure-like symptoms. The symptoms described by Mr. Howell, if indeed they were as he described, may have just begun to occur. This Court does not find Mr. Howell’s testimony as to inquiring about sending his daughter to a hospital to be credible. Rather, the Court finds that in his self-described “emotional” state, he does not recall this clearly.
From the circumstances presented, it appears that defendant did everything in its power to care for claimant. Claimant was treated like other prisoners in similar circumstances and was not left in the room alone. Claimant presented no evidence to show that the risk of her injury was so great as to outweigh standard procedure. Claimant has failed to show that defendant’s conduct violated any standard of care in this situation. There is no expert testimony to show that the procedures developed and implemented by the New York State Police are unreasonable.
Based upon the foregoing, the Court grants defendant’s motion at the close of claimant’s case to dismiss for failure to prove a prima facie case.
Any motions not specifically ruled upon are denied.
The Clerk of the Court is directed to enter judgment accordingly.

December 22, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].At the time of the incident Investigator Colgan was a trooper. Since that time, he received a promotion to Investigator.
[2].At the time of the trial, Mr. Howell had retired from the Nassau County Police Department.
[3].Claimant had a car accident in 1994 which resulted in cervical spinal fusion. Since that time, claimant has been prescribed painkillers which she became addicted to.
[4].The witness based his “opinion” upon his experience as a police officer. However, the Court notes that the witness is not and was not offered as an expert familiar with drug overdoses.