CARATHERS v. THE STATE OF NEW YORK, #2007-030-042, Claim No. 109001
State found 100% liable for injuries to shackled, wheelchair-bound inmate who
fell off the edge of the sloped sidewalk entrance to a hospital. Brake was not
set on wheelchair, nor was there evidence that escorting personnel were close
enough to prevent any foreseeable accident.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
WILLIAM J. ROLD, ESQ.1 1.In September 2007 after completion of the trial on liability, a substitution of attorney was filed. The new attorneys are John D. B. Lewis, Esq., and Gary E. Divis, Esq.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: RACHEL ZAFFRANN, ASSISTANT ATTORNEY GENERAL
October 22, 2007
See also (multicaptioned
Darrin Carathers, who is wheelchair-bound, alleges in his claim that on March
26, 2002 he was injured during a fall from a loading dock at St. Agnes Hospital
while under the care of transportation officers from Green Haven Correctional
Facility. More specifically, he alleges that transportation officers failed to
secure his wheelchair at the loading dock of the hospital, causing him to fall
off the dock and sustain injury. Trial on the issue of liability was held on
June 5, 2007.
Mr. Carathers testified that on March 26, 2002 he was to be transported to St.
Agnes for surgery on his leg to remove a mole. He was in restraints,
“with the belly chain and the handcuffs box, and . . . leg shackles on . .
. [his] feet.”
While in the “leg
irons,” he said, he cannot move his legs. [T-13-14]. He had been
transported to the same hospital by correctional personnel on other occasions,
and had always entered through what he described as an “emergency
exit,” where the ramp from the van could be lowered to the same level as a
ramp “for handicapped people.” [T-15; Exhibit 31]. This time they
took him to what he described as a loading dock, shown on Exhibit 14.
Claimant’s chair was placed on a loading area, where the sidewalk curb -
by Mr. Carathers’ estimate - was approximately “two feet
maybe” from the ground level, since the sidewalk “. . . [got] higher
as you go up . . . this hill.” [T-18-19]. The surface of the sidewalk was
not smooth, and was on a downhill curve. Claimant, in his wheelchair, had been
pushed by Correction Officer Dorsanyo to a certain point on the sidewalk, and
then left there while the correction officer went back to the transport van to
put the lift back into the van. The correction officer did not set the brakes on
the chair, nor could claimant reach the brakes to put them on himself.
Claimant’s chair began to “spin around,” rolled toward the
street, and went over, causing claimant to fall into the street. [T-23]. As
the chair began to roll, Claimant first realized that the correction officer was
no longer behind him, pushing him. When he called for Correction Officer
Dorsanyo, he came back, as did other officers, who assisted him. The restraints
were removed, he said, “because I was too big, like they couldn’t
move me because I was too heavy and the way I was situated, I was on my leg. My
leg was bent up under me and I was in pain.” [T-23]. Claimant received
medical attention at the hospital.
Describing, on cross-examination, the correctional facility van used to
transport him, Mr. Carathers said it was approximately 8 or 9 feet long, had a
“big bubble canopy top” and a remote controlled lift on the right
side of the van. [T-29]. The lift could be lowered to the height needed, and
the chair would just “roll out.” The van had been parked alongside a
curved corner of a sidewalk, where the pavement sloped down toward the street,
as shown on Exhibit 14. When the lift was lowered to the sidewalk height, Mr.
Carathers was wheeled off the van, with his back to the van, facing the
hospital. Officer Dorsanyo pushed him up into an area of the pavement where an
asphalt-like surface turned into a lighter colored, concrete-type surface, and
then went back to the van to put the lift back up. He said he was placed in the
area of the sidewalk adjacent to where a blue dumpster is parked in Exhibit 14,
to the right of the sign on the long side of the dumpster, with his chair facing
the double doors to the hospital. The chair spun around so that he was now
facing the dumpster and the sign along its side, and the chair then rolled
forward off the curb. He estimated again that the curb height at that point was
approximately “two feet.” He did not remember whether the blue
dumpster was parked in that location on the day of the accident. When it was
suggested by defendant, Mr. Carathers agreed that his chair turned “90
Although Mr. Carathers agreed that the information was not put in his grievance
[see Exhibit 2], he repeated that the wheelchair was “not
locked” and that Officer Dorsanyo had not set the brake. [T-44]. He also
agreed with defense counsel’s characterization of the complaint in his
grievance as one about the uneven concrete on the loading dock/sidewalk area at
St. Agnes Hospital, and not about actions by Department of Correctional Services
personnel. Prior to this accident, he conceded, he could move his left leg, and,
indeed, could walk with a long leg brace on his right leg and a short leg brace
on his left leg, and crutches. He agreed that he did not “see” the
unevenness of the concrete on the sidewalk/loading area, but rather “felt
it,” saying “I’ve been in a [wheelchair] 26 years. I can feel
it.” [ T-48].
At the time of the accident and at trial, claimant agreed he was able to move
his arms and hands. He denied “rocking” his chair while sitting on
the loading dock/ sidewalk area by moving his weight from side to side, however,
and denied pushing the wheelchair with his left leg at any time. He reiterated
that he was shackled. He had a “chain weight around . . . [his] belly and
. . . shackles on . . . [his] feet.” [T-49]. He repeated that he could not
move his feet at all with the shackles on.
The grievance claimant filed the day after this incident stated:
“on 3-26-02 I was taken to St. Agne[s] Hospital for a minor surgery. as
we approached the emergency area I was let out of the corrections van by C.O.
Forbes, and C.O. Dorseno, at the loading garbage dock, as the wheelchair lift
hit the deck my wheelchair rolled off the lift down the uneven concrete and off
the deck while I was chained and shackled causing injuries to my person.”
In terms of the “action requested” by the inmate in the grievance,
“[t]hat the deck be repaired to [pre]vent more injuries or deaths[,] or
when myself and other wheelchair[-]bound inmates are taken to St. Agnes or any
other [hospital,] there is a medical aid[e] present to assist. This deck should
be wheelchair accessible according to the (ADA)” [Id.].
The filed claim describes the accident as testified to at trial, as opposed to
the written statement made by claimant in his grievance.
No other witnesses testified on claimant’s direct case.
Officer Acken, who had been driving the facility van that day, testified. He
did not witness the accident itself, but said that the area where he parked the
van was designated by the hospital as the location for dropping off inmates. He
estimated that during the year he had worked in the transportation of inmates
prior to this accident he had transported inmates to St. Agnes “numerous
times,” or, he “guessed,” 30 times. [T-84; 94-95]. There had
never been a problem or complaint with respect to this ramp. He had no
particular training with respect to transporting inmates in wheelchairs. To his
knowledge, St. Agnes did not have an entrance for wheelchair patients. Although
he did not have a specific recollection as to whether the blue dumpster was
there on the day of the accident, Officer Acken said that it was there “95
to 99 percent of the time” and “was pretty much a permanent
Officer Acken testified that Officer Forbes was sitting in the passenger seat
when he parked the van, and got out first. After the side door where the ramp
extended out was opened, Officer Dorsanyo, who had been sitting in the back got
out. Officer Forbes “stood off . . . maybe like 12 feet away from the van
or so with the other inmate in his charge while the third officer [Officer
Dorsanyo] was letting the wheelchair patient [claimant] down out of the
van,” Officer Acken said. [T-90].
From the driver seat of the van, Officer Acken was able to turn his head
“90 degrees . . . [to] watch the doors . . . [to] open the doors and
extend the ramp out . . . [He] watched the other officer wheel . . .
[claimant] onto the ramp and set the ramp down on top of the sidewalk and roll
him off.” [T-87-88]. Officer Acken said: “I could see that out of
the side of my face, and that was all I watched.” [T-88].
As Officer Acken described it, the sidewalk upon which he lowered the
van’s electric, six-foot-wide ramp was sloped “an inch or two in the
course of maybe like a four-foot run.” [T-86]. He estimated that the
yellow curb’s height as it ran from the point where the ramp had been put
down to the back of the blue dumpster - including the area where claimant was
found after falling - was “approximately six inches” high. [T-90].
He had no direct personal knowledge as to where claimant was positioned on the
sidewalk by the correction officer escorting him. After the unloading ended, and
while he waited for the officer to put the ramp back in the van so he could pull
away to park, he heard a “commotion.” [T-90; 91]. He saw the officer
- Dorsanyo presumably - go toward the front of the van, and saw Officer Forbes
approximately “14 feet away” with the other inmate, then got out of
the van himself. [T-91]. When Officer Acken walked around the front of the van,
he saw Mr. Carathers face first forward off the end of . . . [the] curb . . .
and the wheelchair . . . kind of like laying on him. He was still in the
Officer Acken did not complete an inmate injury report, nor did he recognize
the inmate injury report that was apparently completed on April 5, 2002, signed
by Dr. Koenigsman, and not otherwise signed by the inmate, or any correction
officer. [See Exhibit 1]. When asked by defense counsel whether DOCS had
a policy regarding the utilization of brakes on wheelchairs he responded:
“Not to my knowledge.” [T-93].
On cross-examination, he agreed that a notation on the bottom of a trip
itinerary form to the effect that claimant had fallen out of his wheelchair was
made by Officer Acken. [See Exhibit 6]. Officer Acken also indicated
that the type of van which was requisitioned for the trip indicates that one of
the inmates to be transported would be in a wheelchair. [Id.]. He
agreed that he had never had any training in the handling of inmates in
wheelchairs during transport. Finally, Officer Acken confirmed that he had no
personal knowledge as to whether claimant could reach the brakes of his
wheelchair while in restraints and, having not observed the “incident take
place . . . from the driver’s seat” he did not know what caused Mr.
Carathers to fall including whether Mr. Carathers himself did anything to cause
his fall. [T-111].
The Court notes that the trip itinerary form also contains remarks with regard
to the two inmates to be transported, including a notation that the other inmate
had been heard discussing escape possibilities in 1997, and that Mr. Carathers
had an “assault on staff” in 2000. [See Exhibit 6].
Officer Forbes had only a “vague” recollection of his trip as a
transport officer to St. Agnes on March 26, 2002. [T-122]. He said that he
recalled “[j]ust that the inmate fell off his wheelchair and that’s
about it. Picked him up and - - - that’s it.” [T-122]. Prodded
further, he remembered that they had parked “alongside the sidewalk
loading dock area.” [T-123]. He escorted the inmate he was responsible
for out of the van first. The ramp was lowered for Mr. Carathers after Officer
Forbes had disembarked with his charge. He marked on Exhibit 14-A “as far
as [he could] . . . recall” where he was standing by the van awaiting Mr.
Carathers’ disembarkment. [T-129]. He did not see anything from the time
Mr. Carathers was taken off the van to the time when he fell. He did not see him
fall. Although Officer Forbes had himself previously used the emergency
entrance that Mr. Carathers indicated was the usual entrance to drop off
inmates, the correction officer said it was not the “normal
procedure.” [T-134]. He said the emergency entrance was used if there was
a “major snow storm.”
When asked on cross-examination what alerted him to Mr. Carathers’ fall,
Officer Forbes reiterated that he did not recall looking at Mr. Carathers, and
said: “I don’t recall. It could have been a yell, a noise, or the
other officer might have said something. I don’t - recall.” [T-132].
When asked what the surface was like where the wheelchair was placed, Officer
Forbes answered: “I would say it was fairly level and maybe just a little
slope for drainage. Something like that.” [T-132]. He said it was made of
“[c]oncrete, I guess, blacktop. I really don’t recall
. . . ” [T-133]. He could not say that the claimant had done anything
himself to cause his fall. He did not recall one way or the other whether Mr.
Carathers could reach the brakes on his wheelchair while wearing the restraints
he had on that day. Officer Forbes had never had any particular training with
regard to the transport of handicapped inmates. Finally, Officer Forbes did not
complete an inmate injury report either.
Deputy Lucas, the Deputy Superintendent for Security at Green Haven, testified
generally about the use of restraints on inmates transported for outside
hospital medical visits. Deputy Lucas described the use of handcuffs and other
restraints, saying handcuffs are
“used to restrain an inmate’s arms . . . [and] attach to the wrist
area with the small chain in between holding their hands close together.
Leg irons are slightly bigger to fit around the ankles, and . . . have
slightly more chain in between to give them room to walk. The leg irons
probably have I would say about a 12-inch chain from anklet to anklet so that
the inmate can walk in their leg irons.
The black box is designed as a security feature to fit over the handcuff
locking mechanism so that during . . . any type of transportation of an inmate,
he wouldn’t be able to sit there and try to pick the lock. The black box
is a security feature to prevent the inmate from tampering with the locking
system on the handcuffs.
The waist chain goes around . . . the waist, hooks into the black box and
limits the inmate’s movement. It doesn’t completely stop him from
moving. He’s able to sneeze if he had to, get something out of his
pocket, move from side to side, but
. . . the feature for the waist chain is to prevent the inmate from being able
to reach up and possibly grab an officer or a hostage or something like
More specifically with regard to inmates in wheelchairs, Deputy Lucas said that
the type of movement an inmate would have sitting in a wheelchair with
restraints would not be different from standing while in restraints. He said
that an inmate in a wheelchair with handcuffs on could move his arms, within
whatever range of motion he had and within the confines of the restraints.
Similarly, an inmate in leg irons in a wheelchair could move his legs and feet,
could place his feet on the ground, and could push on the ground.
On cross-examination, Deputy Lucas conceded he had no firsthand knowledge of
any of the circumstances of this accident, either from personal knowledge or
from investigation. When asked, he agreed that the leg mobility in leg irons he
described assumed that the inmate was able to move his legs normally. Further,
he acknowledged that the chain mechanism to the box at the waist prevents an
inmate from raising his arms, and limits lateral movement also.
Claimant and the defendant’s witnesses used the same photograph to
describe where the van was parked and the ramp was lowered, where the wheelchair
was placed and where claimant was found after his fall. [Exhibit
It shows an irregular sidewalk area with
different types of paving - concrete, macadam, asphalt - apparently level in
some places, but in others clearly sloped downward toward the street level. The
area off the curved yellow curb where all witnesses indicated claimant was found
after his fall, and where claimant indicated he rolled off the curb, has a pile
of snow, obscuring to some degree the actual height of the curb at that point.
While the two-foot height attested to by claimant does not appear to be quite
accurate, it is also apparent that the pavement slopes down toward the curb, and
that it is at least the standard curb height of seven or eight inches above the
travel way. Viewing two other photographs at the same location containing a
yardstick planted in the snow pile, not discussed by the witnesses but admitted
in evidence, something higher than the standard curb height is likely. [See
Exhibits 18 and 19].
No other witnesses testified.
DISCUSSION AND CONCLUSION
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. It goes without saying that the State is not the insurer of
the safety of inmates under its custody and control, but rather is responsible
for injuries that foreseeably result from a breach of the duty to exercise
reasonable care under the circumstances.
As reiterated in the inmate-on-inmate assault case of Sanchez v State of New
York, 99 NY2d 247 (2002), the inmate-claimant's testimony there that the
attack came as a complete surprise to him could not measure the duty of the
State, as his custodian, to safeguard and protect him from the harms it should
reasonably foresee. The Court of Appeals found that the Appellate
Division’s test for foreseeability was too circumscribed, in that it
required proof that the State actually knew that the particular victim was a
likely assault victim, or that the particular assailant was dangerous, or that
the State actually knew that the assault was about to take place and had an
opportunity to intervene and protect the victim but failed to do so. The
applicable standard of care is reasonable care under the circumstances.
Where the State is a landowner, too, similar considerations obtain. Thus in
Preston v State of New York
, 59 NY2d 997 (1983) when the State invited
the public to swim in a particular location in its lake, it was found liable for
injuries suffered by a boy who stepped on a rusty imbedded pipe while
The Court said:
“Under the circumstances, the State had a duty either to inspect and
remove hazards from the water or to give warnings that the waters were used at
the swimmer’s risk. This does not require the State to scrutinize every
square foot of riverbed and lakebottom that it owns. Mere ownership does not
give rise to the duty, but inviting the public to swim there does. Obviously, an
individual who bathes in a State lake in a primitive area of the Adirondacks
cannot expect the State to have ‘sanitized’ the area for safe public
use. Also, in areas where the public has been invited to swim, this does not
make the State an insurer, liable for every injury no matter the nature of the
hazard or how long it has been in place. There must be some proof that the
potential danger reasonably could have been neutralized and that its existence
was or should have been discovered by the State . . . (citation
omitted).” Preston v State of New York, supra at
In this case, the duty of care owed to claimant, an individual being
transported in restraints inhibiting to one degree or another movement of his
arms, hands and feet, with already limited movement because of handicaps placing
him in a wheelchair in the first place, is clear. At a minimum, when the
wheelchair is resting on an uneven, sloped surface, and the person in charge of
moving the inmate removes himself from the immediate area of the chair, the
brakes should be set on the wheelchair to prevent its movement. Indeed, if the
person escorting the wheelchair-bound mechanically restrained individual removes
himself from the immediate area of the chair, as did Officer Dorsanyo, due care
would include setting the brake whatever the surface slope may be. This is
The only witness with direct testimony as to where claimant was placed on the
pavement is claimant himself. Claimant testified without contradiction by
anyone with actual knowledge - as opposed to the very general comments by Deputy
Lucas - that the restraints prevented him from reaching his wheelchair brakes
with his arms and hands, and prevented the movement of the foot that was capable
of movement. Given the notation on the transport form [see Exhibit 6],
restraining an inmate such as claimant, known for assaulting officers, would be
a priority. Claimant testified he was left on a sloped sidewalk in his
wheelchair without the brakes having been applied. The correction officers who
did testify - and the one who actually was in charge of claimant, Officer
Dorsanyo, did not - either were not physically in a position to see (Officer
Acken) or were apparently looking elsewhere (Officer Forbes) when the wheelchair
was moved to a location on the walk, and when it started to move. Claimant
testified that where his wheelchair was placed by Officer Dorsanyo was uneven.
Claimant testified without contradiction that the brakes to his wheelchair were
not set. That he could “feel” that the surface was uneven is
credited, as is the suggestion that in restraints, as he was, he was unable to
halt the motion of his chair once it was in motion.
It is not “speculation,” as suggested by defendant, to infer that
a failure to set the brakes on a wheelchair bearing a heavyset man at rest on an
uneven - even a slightly
uneven surface clearly visible in the
photographic evidence and as attested to by all witnesses - would cause the
slightest shift in weight to cause the chair to roll, or spin - even to the 90
degrees or so claimant testified to. Cf. Beavers v Hanafin
AD2d 683, 684 (3d Dept 1982)
; Smith v
, 77 AD2d 619, 620 (2d Dept 1980), lv denied
51 NY2d 709
The two correction officers who were
present saw nothing of relevance. Between claimant’s direct disembarkment
from the van, and his being found on the ground, there is no evidence but that
presented by claimant. The correction officers assumed he was placed at a
particular location because the lowered ramp occupied a given length when open,
but neither officer did other than guess as to where claimant was ultimately
placed by Officer Dorsanyo. They did not see him move, roll, or fall. The fact
that they did not act themselves to prevent his rolling or falling further
suggests that they were not in a position to see.
Significantly, resolving issues of credibility is the province of this Court as
the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept
1993), lv denied 82 NY2d 663 (1993). An important part of that role is
observing the behavior and demeanor of witnesses as they testify, and assessing
the internal consistency of their accounts.
To question claimant as to whether he was rocking his chair prior to its
movement, and then to receive a negative answer, does not establish the point.
It is simply not credible that an already handicapped individual would choose to
jeopardize his health and safety by attempting to move his chair in the manner
suggested by defendant. See e.g. Timmons v State of New York
Claim no. 94084, unreported Decision and Order (filed Feb. 18, 1999, Silverman,
The fact that claimant’s grievance summarizes the incident by saying he
fell off the ramp, as opposed to the more expansive description given in the
written claim and during testimony at trial, does not create a meaningful
inconsistency. Indeed, other than asking claimant whether his grievance
mentioned departures from due care by the correction officers escorting him, the
matter was not probed further.
In the same vein, whether the blue dumpster was present on that day or not -
and it is noted that Officer Acken did not know and Officer Forbes was not asked
- claimant’s reference to the dumpster as a tool to describe where his
wheelchair was placed by Officer Dorsanyo, and where he fell, does not lead to
the conclusion suggested by defendant that claimant’s testimony placed him
as falling against the blue dumpster. Read in context, claimant’s
testimony as to the location of his fall places him as falling in the same
location as where the officers say they found him.
In contrast, the correction officers presented could only testify from their
limited viewpoints. Officer Acken, as noted, did not see anything until after
claimant was on the ground. Officer Forbes - puzzlingly, if indeed he was
standing where he said he was - did not observe anything of note until claimant
was on the ground as well. The escorting officer did not testify.
Claimant’s testimony was uncontradicted on the essential points
establishing his cause of action in negligence.
After carefully considering the evidence presented, the Court finds that
claimant has established that the State of New York through its agents failed to
exercise proper care in the performance of the duty owed to this claimant to
properly set the brakes on his wheelchair or to remain near him so as to prevent
the chair’s movement, that the breach of this duty was a proximate cause
of his injury, and that the injury was entirely foreseeable under the
circumstances by a person of ordinary prudence.
Since the Court finds that the defendant breached its duty of care, the Court
must consider whether claimant contributed to his own injuries. Claimant’s
testimony regarding his own conduct is uncontradicted as well. He could not set
the brake, he could not move when shackled in the fashion described, and his arm
movements were limited as well. He was placed by someone else in a location not
under his control, and there was no credible showing that claimant did anything
to trigger the movement of a wheelchair that should have been set with a brake
in the first place. Once the wheelchair was moving, given his restraints, there
was nothing he could do. The Court finds that claimant did not contribute to his
Accordingly, the Court finds the State 100% liable for the injuries to this
claimant. The Clerk is directed to enter an interlocutory judgment. Trial on
the issue of damages shall be held as soon as is practicable.
October 22, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
.All quotations are to the trial transcript ,
here [T-13], unless otherwise indicated.
. Exhibit 14 was marked by Officer Ackern.
Exhibit 14-A is the same photograph with markings by Officer Forbes.
.The pipe, imbedded in concrete and rising to
within two inches of the water's surface, had been in the same place in the same
condition for at least four years, and there was no question that the State had
never inspected the wading area or posted any warning signs; under those
circumstances claimant's accident was a foreseeable consequence of those
omissions, and there was nothing to suggest that claimant was conducting himself
in an unreasonable manner when he was injured
. After more than an hour cleaning gutters at
defendant’s home, plaintiff fell from the 15-foot ladder he was working
from and injured himself. Plaintiff’s common-law negligence should have
been dismissed on summary judgment, where depositions show “that no one,
including the plaintiff, knows how the fall came about.”
. Plaintiff’s decedent working on
second-story sun deck he had accessed earlier in the day by ladder. The sun deck
was surrounded by a railing. When coworker heard a crash, the decedent was found
on the ground with railing surrounding deck on top of him and the ladder still
in place. No one witnessed the fall.“It is clear that no one knows how the
deceased came to fall, or, in fact, exactly where he was located when he fell.
While we have viewed the facts attendant upon the accident most favorably to the
plaintiff . . .(citations omitted
), they may or may not bespeak
negligence of someone other than the deceased; however ‘In order to
succeed, a cause of action must be based on more than speculation’. . .
) . . . The circumstances of the deceased’s fall
imply the absence of any causative defect as clearly as they imply its presence
and therefore would subject a jury to speculative evaluation of the merits of
the action. Where a jury would be compelled to speculate upon various possible
causes of an accident which ‘may be as reasonably attributed to a
condition for which no liability attaches as to one for which it does, then the
plaintiff is not entitled to recover, and the evidence should not be submitted
to the jury’. . . (citations omitted
. In that claim, the inmate was being
transported by van to an outside hospital. He was restrained in handcuffs and
leg irons or shackles. When the van doors opened at the hospital, correction
officers placed a milk crate under the doors to provide assistance in getting in
and out of the van. The crate was used both on the way to the hospital and when
leaving the hospital. When the inmate arrived at his correctional facility,
however, the crate was not placed outside the van, and claimant fell to the
sidewalk as he stepped out. He testified that he could not simply step onto the
pavement from the van because of the shackles, and correction officers did not
otherwise assist him in getting out of the van. Correctional personnel testified
that the inmate was told to wait until the crate was put in place to disembark.
As one reason to credit the inmate-claimant’s testimony versus that of the
correction officer, the court said: “. . . [T]he Court became cognizant
during the trial that the claimant had no bone in his forehead area. The Court
does not therefore believe that the claimant, a fifty-six-year-old man, would
risk exiting the van without a stepstool of some kind as claimant testified that
he was conscious that any type of fall or injury to that area could be