New York State Court of Claims

New York State Court of Claims
SHIRVANION v. STATE OF NEW YORK, # 2008-040-015, Claim No. 109943

Synopsis

Trial - liability only. Claimant alleged assault and battery by State Police and State Park Police. Also, negligence in failing to render medical assistance. Court finds Claimant failed to establish Claims.

Case information

UID: 2008-040-015
Claimant(s): SEAN SHIRVANION
Claimant short name: SHIRVANION
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 109943
Motion number(s):
Cross-motion number(s):
Judge: CHRISTOPHER J. MCCARTHY
Claimant's attorney: Samuel N. Iroegbu, Esq.
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Frederick H. McGown, III, Esq., AAG
Third-party defendant's attorney:
Signature date: March 31, 2008
City: Albany
Comments:
Official citation: 883 NYS2d 639
Appellate results: affd 64 AD3d 1113
See also (multicaptioned case)

Decision

Claimant, Sean Shirvanion, failed to establish by a preponderance of the credible evidence that the State of New York was liable in connection with an alleged assault and battery against him by members of the New York State Police and the New York State Park Police, or that the law enforcement officers were negligent in failing to render medical assistance to address his diabetic condition.

A bifurcated trial of this Claim, addressing liability issues only, was held on January 28 and 29, 2008 at the Court of Claims in Albany, New York. Claimant called five witnesses: himself; his wife; and three medical witnesses (Dr. Daniel W. Lee, Dr. Shannon Comley Sood, and Dr. Matthew C. Leinung). Defendant called six witnesses: New York State Park Police (Park Police) Sergeant John Perez; Park Police Officer Christopher Gardner; and New York State Police (State Police) Troopers Steven J. Hopsicker, Laurence J. Bruno, Shawnda M. (Provost) Waldbridge, and David Ayers.

FACTS

Claimant is a Type I diabetic. He testified that he did not feel well and was dizzy on the afternoon of October 13, 2003 as he drove between two jobs. Thus, Mr. Shirvanion can remember only episodic impressions, "scenes"(1) or "pictures," of that day. Otherwise, he cannot recall exactly what happened. By contrast, the composite testimony of Defendant's witnesses (all of whom are law enforcement officers that participated in the incident), and the State's exhibits (which include contemporaneous reports), are in complete accord concerning the essential facts. They provide a comprehensive and wholly credible narrative of the incident, which the Court adopts.

Claimant was traveling southbound on New York Route 9 (Rt. 9) in Saratoga Springs, New York (about 1.5 miles north of Exit 13S to Interstate 87 [I-87]) that afternoon, when Park Police Sergeant Perez initiated a routine traffic stop for failure to display a front license plate.

Claimant could not produce his driver's license, registration, or vehicle insurance card. He did provide an employment letter and verbally indicated that he was known by three different variants of his name. A Department of Motor Vehicles check indicated that the vehicle's registration was suspended. While Sergeant Perez stood by the driver's door of the car, questioning him, Mr. Shirvanion abruptly fled the traffic stop, nearly hitting Sergeant Perez in the process, and headed south on Rt. 9 at a high rate of speed.

Park Police Officers Gardner and Jimm Lewis had arrived at the stop to assist Sergeant Perez. They pursued Claimant in their patrol car, with the emergency lights and sirens on. Officer Lewis drove. Claimant swerved back and forth between lanes. The officers pulled alongside Claimant's vehicle. The windows were rolled down in both cars. Officer Gardner yelled for Mr. Shirvanion to pull over, but Claimant did not comply. The Park Police unit pulled in front of him, slowed down and blocked the entrance ramp at Exit 13S to keep Mr. Shirvanion on Rt. 9. Claimant's car swerved toward the ramp and nearly hit the Park Police patrol car. Mr. Shirvanion drove over a grassy median between Rt. 9 and the ramp to I-87. His vehicle's passenger-side mirror hit a Department of Transportation sign in the process.

Claimant entered the highway and proceeded southbound on I-87. The Park Police patrol car pursued and again drew even with Claimant's vehicle. Officer Gardner again yelled for Mr. Shirvanion to pull over. Again, Claimant did not comply. Officer Lewis pulled in front of Mr. Shirvanion. Sergeant Perez by then had joined pursuit in his Park Police vehicle, and fell in behind Claimant. Both Park Police vehicles had their emergency lights and sirens on. Officer Lewis estimated that Claimant's speed ranged between 0 miles per hour (mph) to 65 mph. Claimant attempted to pass and/or hit the lead Park Police vehicle several times. Officer Gardner alerted the State Police dispatcher at Wilton, New York. The cars traveled five or six miles in this fashion.

Three State Police patrol vehicles converged at the U-turn just north of Exit 10 on I-87. As Claimant's car and the two Park Police vehicles approached, the State Police units pulled onto the roadway and blocked the three southbound lanes just south of mile post 16.9 in Clifton Park, New York. They intended to institute a moving roadblock in which they would drive abreast of each other, slow to a halt, and block the vehicles behind them. However, they did not need to implement the moving roadblock.

Claimant's vehicle struck Officer Lewis' patrol unit, damaging its rear plastic bumper and exhaust system (see Exs. A-2, A-3, A-4). Both vehicles stopped. The three State Police units moved slowly in reverse, closer to where the pursuit terminated. Officers Lewis and Gardner exited their Park Police unit. Trooper Bruno parked his State Police patrol unit in front of the two Park Police cars, and also exited his vehicle. Officer Lewis drew his firearm and gave Claimant repeated, loud commands to "shut the car off, let me see your hands, [you're] under arrest!" (Ex. A, Officer Lewis' Supplemental Report, p. 3). Mr. Shirvanion did not comply. Trooper Bruno testified that Claimant was "combative."

Troopers Hopsicker, Ayers and Provost exited their vehicles and approached Claimant's car. Trooper Ayers tried to open the passenger-side door, but it was locked and the window was up. Trooper Hopsicker approached the driver's side door with his side arm drawn and gave commands for Claimant to exit the car. When he saw that other officers also had their weapons drawn, he holstered his gun, reached in through the open driver's side window, unbuckled Mr. Shirvanion's seatbelt, and tried to open the door. Mr. Shirvanion held the door shut with his hands.

Claimant then put his car into drive and accelerated forward, past the passenger side of one of the Park Police units, and sideswiped a State Police patrol vehicle. Trooper Hopsicker dove through Mr. Shirvanion's driver's side window to avoid being sandwiched between Claimant's car and the State Police unit. The Trooper landed in Claimant's lap and struggled with him inside the passenger compartment for control of the vehicle. Trooper Hopsicker tried to grab Mr. Shirvanion's hands because he did not know, at that time, whether Claimant had a gun. The two "exchanged fist strikes to the head and shoulders." Trooper Hopsicker also testified that Mr. Shirvanion grabbed him by the testicles. The Trooper gave Claimant repeated commands to stop the vehicle.

Mr. Shirvanion's vehicle veered hard to the left, across two lanes and onto the median, quickly stopping after it hit an earthen embankment. Trooper Ayers said it was a "severe impact." He thought both Trooper Hopsicker and Mr. Shirvanion "were going to be seriously injured." Claimant then reversed course and traveled, at a high rate of speed, across all three lanes. The rear of the car hit a guardrail. Mr. Shirvanion tried to pull forward again. Officer Lewis had Claimant at gun point and was yelling loud commands to stop resisting. Trooper Ayers and Trooper Provost (who were back in their vehicle) turned their patrol unit around, drove north a short distance, pinned Claimant's car against the guardrail, and immobilized it (see Exs. A-1and A-9 [the State Police unit with Claimant's car pinned against the guardrail], A-5 [the damage to the rear of Claimant's car], and A-6 [the damage to the passenger side of Claimant's vehicle]).

Trooper Hopsicker put Mr. Shirvanion in a headlock, leaned on top of him, put the gear shift lever into park and removed the ignition key. Officers Lewis and Gardner went to the driver's side window of Claimant's car to assist Trooper Hopsicker, who continued to struggle with Mr. Shirvanion. Officer Gardner used a defensive tactic to try to subdue Claimant, applying pressure with his knuckle against the base of Claimant's nose. Mr. Shirvanion tried to bite the Officer's hand. Officer Gardner eventually handcuffed Claimant's left wrist, though Mr. Shirvanion continued to resist.

Officer Lewis again gave Claimant loud verbal commands to stop resisting and to put his arms behind his back. Officer Lewis then administered two one-second bursts of oleo resin capsicum (pepper spray). Trooper Hopsicker testified that he was on top of Claimant and received the brunt of the spray. Trooper Hopsicker, Officer Lewis and Officer Gardner continued to order Mr. Shirvanion to stop resisting. Claimant continued to wrestle with Trooper Hopsicker, however, even after the spray had been shot. Officer Lewis then deployed his baton. He hit Claimant twice in the left biceps area, while commanding him to put his arm behind his back.

Claimant continued to scuffle with the officers as he was extracted from his car and placed on the ground. Officer Lewis said that he struck Mr. Shirvanion once more in the area of his upper left arm or shoulder. Trooper Hopsicker handcuffed Claimant's right wrist. Then, Trooper Hopsicker and Officer Gardner were able to gain control of Mr Shirvanion.

Officer Gardner testified that Claimant was conscious and, in response to the officers commands to stop resisting and put his hands behind his back, Mr. Shirvanion yelled, "at the top of his lungs," "Why are you abusing your authority? I am a diabetic. I need orange juice. Why are you abusing me?" Claimant remained on the ground and Officer Gardner maintained control over him until emergency medical services arrived to transport Mr. Shirvanion to Saratoga Hospital. Mr. Shirvanion was removed, handcuffed to a backboard. Trooper Hopsicker sustained broken ribs and required knee surgery as a result of the incident.

LAW

"A police officer is authorized to use force that is objectively reasonable under the prevailing circumstances" (Passino v State of New York, 175 Misc 2d 733, 736 [Ct Cl 1998], affd 260 AD2d 915 [3d Dept 1999], lv denied 93 NY2d 814 [1999]; see PJI 3:4; 62A NY Jur2d Government Tort Liability 130). The State can be held liable, however, for assault and battery, if excessive force is applied (Jones v State of New York, 33 NY2d 275, 279 [1973]). "Determining whether a police officer wielded excessive force requires a fact-specific analysis in which an array of factors may be relevant, including the nature of the officer's intrusion, the severity of the crime, whether the suspect posed an immediate threat and whether the arrest was actively resisted" (Passino v State of New York, 175 Misc 2d 733, supra at 736; see Graham v Connor, 490 US 386, 396 [1989]).

"Claims that law enforcement personal used excessive force in the course of an arrest, investigatory stop or other prearraignment seizure are analyzed under the 4th Amendment [to the Federal Constitution] and its standard of objective reasonableness" (Passino v State of New York, 260 AD2d 915, 916 [3d Dept 1999], lv denied 93 NY2d 814 [1999]; see Graham v Connor, 490 US 386, supra at 395). In undertaking such an analysis, "[t]he court must be cautious not to impose upon the strenuous and often dangerous circumstances encountered by police on the streets a standard unduly colored by the calm of the Judge's Chambers" (Passino v State of New York, 175 Misc 2d 733, supra at 736). In other words, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" (Graham v Connor, 490 US 386, supra at 396; see Koeiman v City of New York, 36 AD3d 451, 453 [1st Dept 2007]; Campagna v Arleo, 25 AD3d 528, 529 [2d Dept 2006]; Mazzariello v Town of Cheektowaga, 305 AD2d 1118, 1119 [4th Dept 2003]).

To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70). "In determining whether claimant has carried [his or] her burden, the Court, as fact finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, Claim No. 107632, dated June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Burton v State of New York, 283 AD2d 875, 877 [3d Dept 2001]).

Even if originally no duty was owed, a person can voluntarily assume a duty to render aid to another person who is helpless, or unable to protect him or herself. When that happens, such assistance must be undertaken with reasonable care (Parvi v City of Kingston, 41 NY2d 553, 559 [1977]; PJI 2:24). In other cases, a governmental entity may be said to owe a special duty of care to a person. In order to establish that such a special duty exists, four elements must be shown: (1) an assumption by the governmental entity, by either promises or actions, of an affirmative duty to act on behalf of an injured party; (2) knowledge on the part of the governmental entity's agents that inaction could lead to harm; (3) some form of direct contact between the governmental entity, or its agents, and the injured party; and (4) that party's justifiable reliance on that affirmative undertaking (Mastroianni v County of Suffolk, 91 NY2d 198, 204 [1997]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Escribano v Town of Haverstraw, 303 AD2d 621, 622 [2d Dept 2003]; PJI 2:229A).

DISCUSSION

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to meet his burden, and has not established by a preponderance of the credible evidence the particulars of his Claim. The Court does not credit Claimant's recollections, purportedly culled from a miasma of fleeting impressions. To the extent they purport to be recalled with greater clarity, the Court rejects them as self-serving. They provide neither credible, nor competent, testimony concerning the events that transpired on October 13, 2003. On the other hand, the Court credits the testimony of the State's witnesses as straightforward, cogent and credible.

Mr. Shirvanion testified to some memories of the traffic stop. He said he remembered seeing a light and pulling over. He thought he produced his driver's license and the employment letter, though he could not recall why he would have supplied the latter. Mr. Shirvanion said he told the police officer that: he was in diabetic shock; his blood sugar was low; and he needed help. He said he carried his diabetes kit with him that day, though he conceded that he did not test his blood sugar that afternoon, nor did he take any medication. Mr. Shirvanion also said he showed the officer his medical bracelet that identified him as a diabetic (Ms. Shirvanion testified that Claimant was wearing it when he left home that morning). Claimant said that the officer asked if he wanted an ambulance and that he replied affirmatively.

The Court does credit Sergeant Perez' testimony, which it finds to be both credible and unequivocal. Sergeant Perez said that Mr. Shirvanion's demeanor appeared to be normal. Claimant spoke to Sergeant Perez and made eye contact with him. Mr. Shirvanion never mentioned his health. He did not ask for help. He did not say he was a diabetic. He did not show the sergeant a medical identification bracelet. Asked if Claimant indicated he was in any sort of distress, Sergeant Perez testified, "absolutely not." Officer Gardner, likewise, did not see a medical bracelet at the end of the event when Claimant was yelling that he was a diabetic. The Court finds that Claimant did not appear to be in distress, nor did he request aid. The Court further concludes that Sergeant Perez did not voluntarily assume a duty to render aid. He did not, by his promises or actions, affirmatively assume a special duty of care on Claimant's behalf.

Even assuming, arguendo, that Claimant said he was a diabetic, the Court still would not find that Mr. Shirvanion established a prima facie case of negligence. Claimant's flight from a routine traffic stop in connection with a missing license plate was not a reasonably foreseeable response under the circumstances. It was this erratic and hazardous activity on Claimant's part that was the substantial factor in the events that caused his injuries rather than any alleged negligence by Defendant's agents (see Johnson v State of New York, 253 AD2d 274, 277-279 [3d Dept 1999]).

Again, assuming, arguendo, Claimant said he was a diabetic, the Court still would not find a breach of a voluntarily assumed duty to provide care. Claimant's medical witnesses confirmed that Mr. Shirvanion is a Type I diabetic. They agreed that people suffering from hypoglycemia or a diabetic shock should not operate an automobile and that, if they did so, they might be a danger, both to themselves and others. Dr. Comley Sood agreed that the best course of action, within reason, would be to get such drivers off the road and obtain treatment for them. Thus, knowledge of Claimant's condition only would have underscored for the police the urgent need to stop Claimant's flight and remove him from the road. That is precisely what they did. Medical care was procured promptly for Claimant once the danger posed by his driving ended.

Again, assuming, arguendo, Claimant said he was a diabetic, he failed to establish a breach of a special duty. Since he fled the stop, he cannot show reliance on Sergeant Perez' alleged offer to call for help (see Cuffy v City of New York, 69 NY2d 255, supra at 261; Escribano v Town of Haverstraw, 303 AD2d 621, supra at 622). Medical treatment was proffered as soon as Mr. Shirvanion stopped running from the police.

With respect to allegations of assault and battery, Claimant offers other "pictures" or "scenes." In one, he recalled having a handgun pointed at his head. In another, he said an officer was on top of him while a second officer was kicking him in the ribs on his right side. A third officer was pushing the second officer away from Claimant. He testified that he could not identify the officers from these impressions. Beyond that, Claimant concedes that he cannot recall exactly what transpired. He said that he did not regain complete consciousness until he was at Saratoga Hospital. "Until that point, I was in and out"of it.

Some of these impressions are unremarkable under the circumstances and are not contested. For example, several officers readily agreed that they were on top of Claimant while trying to gain control. A number of them volunteered and confirmed that they and others had weapons drawn as Mr. Shirvanion was subdued. On the other hand, none stated, or agreed, that Claimant was kicked by any of them. Trooper Bruno's unequivocal response to the question was, "absolutely not." The Court fully credits Defendant's witnesses and their account on this point. The Court concludes that Claimant's impression that he had been kicked is mistaken. The allegation is rejected.

Mr. Shirvanion's medical witnesses only bolster the description by Defendant's witnesses of a volatile and escalating situation. Dr. Lee explained that people in diabetic shock might become confused, irrational, combative, and/or angry and, in more severe cases, might not be aware of their actions. Dr. Comley Sood, likewise, testified that they might "act confused, belligerent, drive crazy" and could mimic the characteristics of people who are drunk or under the influence of drugs. Dr. Leinung also testified that such "[p]eople can become belligerent. They can act in almost a psychotic manner. They may be reacting to things that are not there. They may be unable to respond to simple questions, to be able to answer them, or to follow certain instructions. I mean, the possibilities are sort of endless as to how it might manifest." He also agreed with Dr. Comley Sood that "there is overlap" in the behavior of someone in a hypoglycemic episode "with the [behavior] that you can see from someone who is drunk and from someone who is on mind-altering drugs." The behavior described by Claimant's own medical witnesses comports with the conduct the police encountered.

Thus, the Court concludes that the use of force by the Park Police officers and the State Police troopers was objectively reasonable and necessary under the circumstances. Moreover, the Court determines that no excessive force was used.

The Court also concludes that Claimant's injuries were likely attributable to his own behavior, in fleeing the traffic stop, driving dangerously, causing several accidents, and in resisting the law enforcement officers' lawful efforts to subdue him. Trooper Ayers described the "severe impact" when Mr. Shirvanion drove his vehicle into the earthen embankment on the median and his concern that both Trooper Hopsicker and Mr. Shirvanion "were going to be seriously injured." Thus, regardless of the nature and severity of Claimant's injuries, the Court concludes that they do not evidence the use of excessive force by the law enforcement officers.

CONCLUSION

It is uncontroverted that Mr. Shirvanion inexplicably and abruptly fled the traffic stop. Over the course of twenty to thirty minutes, he drove dangerously and erratically, endangering himself, law enforcement officers and members of the traveling public. Five law enforcement vehicles were engaged in an effort to stop him. He hit several of them and had other single-car collisions with fixed objects. During all that time, he exhibited a combative and non-compliant demeanor. He persistently refused to comply with numerous direct commands to stop and acquiesce given to him by several law enforcement officers. He scuffled with several of them, injuring Trooper Hopsicker. Under such circumstances, the Court concludes that Defendant's agents responded with only that measured degree of force they reasonably thought was necessary in order to subdue Mr. Shirvanion and thereby remove the risk of injury he posed both to himself and others. The Court finds no evidence that he was otherwise manhandled, abused or subjected to excessive or unnecessary force at the hands of the police.

Defendant's motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed. All other motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during the trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

March 31, 2008

Albany, New York

CHRISTOPHER J. MCCARTHY

Judge of the Court of Claims


1. All quotations are taken from the audiotape recording of the trial and/or the Court's trial notes.