New York State Court of Claims

New York State Court of Claims

KITT v. THE STATE OF NEW YORK, #2009-030-024, Claim No. 112505


Claim dismissed after trial. Inmate claimant a passenger in shuttle van operated within prison grounds injured when driver braked suddenly to avoid accident. Vehicle & Traffic Law §1104 applies to emergency vehicles operated on public highways and private roads open to public traffic, not a perimeter road within correctional facility grounds. Nonetheless, State not liable under ordinary negligence principles.

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):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
August 25, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Eugene Kitt alleges in his claim that defendant’s agents at Sing Sing Correctional Facility [Sing Sing] campus negligently caused claimant serious injury on January 12, 2003 when he was being transported in a facility van from the Five Building to his residence at Tappan Correctional Facility [Tappan]. More specifically, it is alleged that the van in which claimant rode as a passenger did not have seatbelts, and the operator slammed on the brakes of the van so forcefully that claimant was propelled off his seat to the floor. A bifurcated trial to determine whether the defendant was negligent under the appropriate standard was held on May 5, 2009. This decision relates solely to that issue.

Eugene Kitt testified that after attending religious services on Sunday, January 12, 2003 at approximately 10:00 a.m. he boarded the facility van that would take him from “Five Building”[1] back to his housing at Tappan. He estimated that “about four or five” other inmates boarded as well. The van operator was the only correction officer on board.

The van was the “usual type” of vehicle he had ridden in before, and claimant identified photographs of the van depicted as being similar to the one he rode in January 12, 2003. [See Exhibits 6A-D]. Behind the driver’s seat, there were two long benches oriented perpendicularly to the driver against the sides of the van. Mr. Kitt estimated that the benches would “fit about sixteen people with eight on each side.” The benches were constructed of metal, with seat cushions on top.

When claimant boarded the van that morning, he walked toward the back, and sat on the bench on the driver’s side. Although he looked for them, there were no seatbelts on the bus. He said that as a general rule, after the inmates boarded a bus the correction officer would direct them to sit down, and put their seatbelts on. This time, the officer said nothing about seatbelts, nor did Mr. Kitt or the other inmates inquire about seatbelts. Mr. Kitt estimated that there were “maybe one or two inmates [sitting] between [him] and the driver, and about three inmates sitting on the other side.” When everybody got on, the officer “backed up maybe twelve feet” to proceed, and started moving down the hill toward Tappan.

Mr. Kitt explained that “to get to Tappan you had to go down a little hill, and across a bridge.” Before they got to the bridge, within two to three minutes of leaving Five Building, “the driver braked real hard . . . so hard, that the back of the van went up.” When the “back of the van went up”, claimant fell off his seat toward the front of the van and hit his “back and right shoulder.” Mr. Kitt said that he hit the metal on the underside of the benches. Nobody else fell. He did not see what caused the officer to brake as he had been looking across as he sat, rather than forward to where the driver was seated. Nobody had been talking for the few minutes that they drove, all were “just looking out the windows”.

After he fell, “a couple of guys” tried to help him; “a bigger guy then pulled [him] up and set [him] on the seat.” The van continued to Tappan.

When they reached Tappan, a sergeant came to the door of the van, and asked the driver what happened. The driver said he had an accident. The sergeant asked if anyone got hurt. The driver said “a guy fell onto the floor.” The van driver then asked claimant his name, claimant told him, and the officer told the sergeant that “Kitt fell.” Thereafter, “another guy came on the van and took” claimant to the Sing Sing Facility hospital.

On cross-examination claimant indicated that he did not remember seeing the officer before the day of the accident, nor did he remember riding with this officer before, but said drivers changed frequently. Claimant had ridden on this van or similar vans before, and had used seatbelts on previous occasions. He reiterated that he did not see seatbelts, nor did he or any other inmates ask about seatbelts, nor did the correction officer mention seatbelts. He estimated that the fastest speed the van traveled was between 20 and 25 mph. He thought the driver had been moving at that speed when the brakes were applied. He did not see any other vehicles, nor did he ever learn why the driver applied the brakes.

Claimant had no recollection of the correction officer turning around in his seat and asking if “everyone was okay,” nor did claimant say anything to the correction officer at that time concerning his condition. When he later arrived at the facility hospital, he walked off the van with a cane. No other inmates “went to medical” for treatment.

Correction officer Napoleon Richardson was the driver of the van. He testified that driving the perimeter van was not his usual assignment and he was substituting for another officer that morning. On January 12, 2003 he had been employed as a correction officer at Sing Sing for four years, and in that time had driven a facility van/bus approximately “three to four” times. He did not recall if he had driven this particular van before, but had driven similar vans previously. When asked how long before the accident he had last driven such a van, he thought it had been “maybe two to three years.” That morning, he started driving the perimeter route at approximately 7:40 a.m., transporting inmates, correction officers and perhaps civilians, although he could not say how many people he had transported before the trip involving claimant. The entire route is “roughly three or four or five miles” and he thought he had taken “perhaps four to five trips” when he picked up claimant’s group.

The accident occurred around 10:30 to 10:40 a.m., within three to five minutes of leaving, and less than one mile from Building Five. He could not recall specifically how many passengers boarded with claimant, saying “it could have been one, it could have been five . . .”

There had been no mechanical trouble with the van that morning. Officer Richardson initially testified that as far as he knew, the van had seatbelts. Indeed, he did not realize at any time prior to the accident that the seatbelts were not visible nor did he look for them. Nobody complained about seatbelts - including any correction officers who might have boarded earlier - and he had never been instructed as a driver to ask passengers to put on seatbelts. After the accident he learned that the seatbelts were not visible, indeed he had to lift the seat cushions to discover that they were under the seat cushions “clamped together.”

The perimeter road from the chapel in Building Five to Tappan was a two lane road, with one lane of travel in each direction. Before reaching the bridge on the perimeter road, there was an intersecting road on the right-hand side that headed toward the visiting area. On the left-hand side of the perimeter road was a fifteen-foot-high prison wall. Little or no traffic traveled the perimeter road, and nothing obstructed his view of traffic. As Officer Richardson drove down the hill toward the bridge he saw another vehicle stopped at the intersecting road, at its intersection with the perimeter road. When he first saw the vehicle, it was approximately two to three car lengths ahead of him to his right. A car length, he said, was approximately fifteen (15) feet. Assuming that the vehicle would remain stopped, he proceeded at the “10 mph or so” he had been traveling, only to observe when he was about two car lengths away that the vehicle was moving. Officer Richardson applied his brakes “medium to heavy,” as the other vehicle moved in front of him, and the van transporting claimant came to a stop. Between the time he first saw the vehicle and when he applied the brakes it had been “seconds.” There was no collision. The officer heard a “thud” but no one cried out. The officer did not see claimant fall, nor did he recall where claimant had been seated, but he observed him after the fact “sitting up with his feet toward the front” of the van. Officer Richardson asked claimant if he was “alright” and the inmate said he was “fine.” He “asked everyone else on the bus if they were alright.”

When he arrived at Tappan he reported the matter to the sergeant “because [he is] not a doctor. Just because an inmate says he is okay, does not mean he is okay.” Mr. Kitt was
“directed to be removed to the hospital. Fire and safety came down. They prepared their reports. I wrote a to/from. That was it. I told my supervisor that the vehicle did not have seatbelts. The sergeant said, ‘what do you mean it doesn’t have seatbelts, it does.’ I went back to the van to look, and found that there were seatbelts but they were hidden. I had to pick up the seats and the seatbelts were clamped together underneath.”

In the “to/from” Officer Richardson wrote to his sergeant he noted that he was “informed” that there were no seatbelts in the van. [See Exhibit 5]. At trial, he did not specifically recall if he had been told that there were no seatbelts before starting off, but thought he might have been given that information by his “relief.” He testified that he had the right of way when he was traveling on the perimeter road, explaining that vehicles carrying inmates always had the right of way.

In a memorandum by Sergeant Coulthrust to the lieutenant dated January 12, 2003 reporting the “inmate accident on bus” the sergeant writes, among other things:
“Upon inspection of the vehicle I found the seat belts were secured under the seats. They were taken out from under the seats. Instructions were also given that all inmates riding the bus must wear seat belts while on the bus.” [Exhibit 2].

A motor vehicle accident report [Exhibit 3], a report of inmate injury form [Exhibit 4] and an investigation report [Exhibit 1] were completed. All repeat that claimant fell on the floor of the van when the driver applied the brakes, as reported by claimant.

No other witnesses testified for claimant nor was any other evidence submitted on his direct case. Defendant moved to dismiss the claim, and rested without calling any witnesses or submitting any evidence.

As an initial matter, defendant urges the applicability of the provisions of Vehicle and Traffic Law §1104, whereby police vehicles involved in an emergency operation may avoid penalties associated with negligent failures to obey the rules of the road unless the vehicles are operated with “reckless disregard for the safety of others.” In support of this position, defendant cites to a recent decision in the Court of Claims wherein the Court found that a correctional facility van transporting the inmate claimant and other inmates to an outside medical facility, involved in an accident while attempting to exit the New York State Thruway, was an authorized emergency vehicle involved in an emergency operation and thus the conduct of the operator was to be measured by the reckless disregard, rather than ordinary negligence, standard. [See Harrington v State of New York, UID # 2009-032-501, Claim No. 109133 (Hard, J., March 31, 2009)].[2] The trial court found that the van was a “police vehicle” under Vehicle and Traffic Law §132-a,[3] and thus the DOCS van was the type of emergency vehicle that was not required to have audible signals or visible lights in order to benefit from the immunity provisions of Vehicle and Traffic Law §1104.[4]

Given the factual scenario presented here, however, this Court finds that a negligence rather than a reckless disregard standard applies. This is because the provisions of Article 23 of the Vehicle and Traffic Law, entitled “Obedience to and Effect of Traffic Laws”, clearly apply to “public highways, private roads open to public motor vehicle traffic and any other parking lot

. . . ” [Vehicle and Traffic Law §1100], unless an individual rule specifies otherwise.[5] Significantly, what cases have applied the immunity provisions of Vehicle Traffic Law §1104 to DOCS vehicles transporting inmates have all occurred on public highways [Vehicle and Traffic Law §134], not on perimeter roads strictly within the confines of a correctional facility. See e.g. Harrington v State of New York, supra;[6] Christopher v State of New York, UID # 2008-031-036, Claim No. 108185, Motion Nos. M-74989, CM-75067 (Minarik, J., July 11, 2008);[7] Pacheco v State of New York, UID # 2007-009-044, Claim No. 113861, Motion Nos. M-73766, CM-73877 (Midey, J., January 3, 2008);[8] Heckstall v State of New York, UID # 2004-013-021, Motion No. 66939 (Patti, J., April 26, 2004)][9]; see also Klayman v City of New York, 130 AD2d 551 (2d Dept 1987), order amended 142 AD2d 668 (2d Dept 1988).1[0]

It bears repeating that although it has been found previously that a New York State Department of Correctional Services [DOCS] van is indeed, an “authorized emergency vehicle”1[1], and that the mere transporting of prisoners is an “emergency operation”1[2] under the statutes and thus entitled to the benefit of the provisions of Vehicle and Traffic Law §1104, all those instances have involved DOCS vehicles traveling on the public highways, being used exclusively for the transport of prisoners, not a vehicle operated as a shuttle, engaged in the routine movement of inmates, correction officers and - on occasion - civilians, within the correctional facility.

Finally, to elevate the factual scenario presented here to one imbued with the qualified immunity afforded to such authorized emergency vehicles actually engaged in dangerous work was clearly not the legislature’s intent in creating this status.1[3] Accordingly, the actions of the State’s agents here in outfitting and operating what is essentially a shuttle bus are to be evaluated under negligence elements, rather than the higher burden of reckless disregard.

In that connection, 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 claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994). Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor and assessing their credibility as they did so, the Court finds that claimant has not established an adequate basis for the State’s liability.

Officer Richardson’s testimony to the effect that another truck failed to yield the right of way, that he braked in order to avoid a collision and, indeed, avoided such a collision, is credited. Whatever his experience in driving the van, he exercised proper care in adjusting his driving to the unexpected failure to yield by the truck to avoid the far more harmful eventuality of a collision with the truck. Moreover, based on both claimant and Mr. Richardson’s testimony he was not driving very fast - indeed there was no skidding as he braked - and no other passengers suffered any ill effects from the sudden application of the brakes. Claimant testified as to the lack of conversation in the van suggesting that there were no distractions. There is no indication that the driver was operating the van carelessly. After completing the route several times that morning, during which whatever unfamiliarity he may have had with the vehicle was lessened, he reacted to an emergency situation with due care and avoided a collision.

Additionally, the fact that claimant was not provided with a seatbelt does not provide a basis for the State’s liability. Vehicle and Traffic Law §383(1)(c) requires that all motor vehicles have at least one seatbelt for each passenger seat position. Vehicle and Traffic Law §1229-c proscribes penalties for the failure to use seatbelts when required. The DOCS van driven here, however, is considered a bus under Vehicle and Traffic Law §104, in that it has a seating capacity of fifteen (15) or more passengers. As such, it is exempted by statute from the motor vehicle seatbelt requirement. See Vehicle and Traffic Law §1229-c (9). This has been the case law interpretation as well. See Figueroa v State of New York, UID # 2003-009-61, Claim No. 104206, Motion No. M-66320 (Midey, J., December 18, 2003), affd 19 AD3d 1053 (4th Dept 2005); see also Mallory v State of New York, UID # 2007-018-583, Claim No. 108885 (Fitzpatrick, J., October 1, 2007);1[4] Lockett v State of New York, UID # 2005-013-050, Motion No. M-70635 (Patti, J., December 19, 2005).

Moreover, it has been additionally held that evidence of seatbelt non-use when use is not mandated is inadmissable to establish negligence. Figueroa v State of New York, supra; Mallory v State of New York, supra; Lockett v State of New York, supra.

Claimant’s counsel appears to argue (perhaps) that there is regulatory authority requiring that seatbelts should be worn by inmates riding on the DOCS shuttle van. In support of that argument, counsel refers to the accident investigation report completed by Officer Richardson’s sergeant indicating that “[i]nstructions were also given that all inmates riding the bus must wear seatbelts while on the bus,” [Exhibit 2] and an additional notation by the sergeant on another form that the vehicle involved in the accident “is the wrong vehicle for transporting inmates in and outside the prison.” [Exhibit 1]. Counsel then argues that claimant is entitled to a missing witness inference based upon defendant’s purported failure to call Sergeant Coulthrust.

As stated by the Court of Appeals with regard to a request for a missing witness charge:
“The burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances, this information may be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid ‘substantial possibilities of surprise’ . . . (citation omitted). Once the party seeking the charge has established prima facie that an uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party, it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not ‘available’, or that the witness is not under the party’s ‘control’ such that he would not be expected to testify in his or her favor. In order to allow for effective judicial review, it is imperative that all discussions regarding this matter be clearly set forth on the record so that the respective positions of each party are readily discernible . . .(citations omitted)” People v Gonzalez, 68 NY2d 424, 427-428 (1986).

First, this request for a missing witness inference, made after the close of testimony, and in a post-trial brief submitted simultaneously, is untimely [see Thomas v Triborough Bridge and Tunnel Auth., 270 AD2d 336, 337-338 (2d Dept 2000); cf. Adkins v Queens Van-Plan, 293 AD2d 503, 504 (2d Dept 2002)], and in this case is also not “as soon as practicable” under People v Gonzalez, supra. At the pretrial conference held in this case the only possible witnesses noted by the State of New York in its witness list were Officer Richardson, and Lieutenant Zavistaski.1[5] At that point, if any concern about the testimony of Sergeant Coulthrust had arisen it should have been noted and addressed. Moreover, it is not clear exactly how the testimony of Sergeant Coulthrust would have been other than cumulative if the purpose would have been to include the information already testified to by Officer Richardson that he was told that seatbelts were present and should be used. There has been no indication that the sergeant was deposed so as to clarify exactly what testimony he might have given. As to whether any DOCS regulations applied to this circumstance, it is claimant’s burden to establish every element of his claim, including the applicability of any regulations or directives and any purported violation of same. No evidence on the issue was presented.

Counsel for claimant also appears to argue that a failure to call other inmates on the bus is suspect. Clearly, such witnesses were equally available to claimant and might have been called by him if he felt they were necessary. In any event, the trial strategy choices made here by claimant to call whatever witnesses it was determined would suffice to establish his claim, and to submit whatever documentary evidence was thought necessary, should not now be utilized to establish that a missing witness inference should be drawn against defendant.

While the Court sympathizes with Mr. Kitt’s circumstances, this was an incident involving a State employee who exercised due care and avoided what could have been an accident. No basis for liability has been established. Based on the foregoing, defendant’s motion to dismiss, upon which decision was reserved at trial, is hereby granted, and claim number 112505 is dismissed in its entirety.

Let judgment be entered accordingly.

August 25, 2009
White Plains, New York

Judge of the Court of Claims

[1]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. While agreeing with such ruling, the trial court also noted that an earlier motion decision had become the law of the case with regard to what standard would be applied to the operation of the vehicle. [See Harrington v State of New York, UID # 2007-039-045, Claim No. 109133, Motion Nos. M-73276, CM-73508 (Ferreira, J., November 7, 2007)].
[3]. Vehicle and Traffic Law § 132-a, defining “Police vehicle” provides: “Every vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special duties. Any other vehicle operated by a chief or deputy or assistant chief of a police department, a sheriff, undersheriff or regular deputy sheriff, and a vehicle owned and operated by the law enforcement unit of a public or private corporation authorized by law to maintain a unit for the enforcement of law on the property of such corporation shall be a police vehicle only for the purposes of section one hundred one of this chapter.”
[4]. Vehicle and Traffic Law §1104(c) indicates: “Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp so that from any direction, under normal atmospheric conditions from a distance of five hundred feet from such vehicle, at least one red light will be displayed and visible.” If it were not a police vehicle, it would seem that an additional finding, at a minimum, to the effect that the subject vehicle had emergency lights or sirens would also be necessary before finding that the operation of the vehicle is privileged but for a failure “to drive with due regard for the safety of all persons . . . [and without] reckless disregard for the safety of others.” Vehicle and Traffic Law §1104 (e).
[5]. Such an individual rule expanding the applicability of the title as a whole is found at Vehicle and Traffic Law §1104(d) for example, which provides that “[n]otwithstanding any other law, rule or regulation to the contrary, a police, sheriff or deputy sheriff bicycle operated as an authorized emergency vehicle shall not be prohibited from using any sidewalk, highway, street or roadway during an emergency operation.”
[6]. As noted, the accident occurred on the New York State Thruway.
[7]. The accident occurred on New York State Route 77. The Court also adopted the view that a DOCS van is a “police vehicle” both because of the driver’s status as a “peace officer” and because of the ostensible “law enforcement agency” status of DOCS as the operator/owner.
[8]. Although the location of the accident is not stated, from its description, namely that claimant was being transported with other inmates from Watertown Correctional Facility to Gouverneur Correctional Facility when the van in which he was being transported was struck in the rear by a drunk driver, causing the van to hit a guardrail and another vehicle, suggests that it occurred on a public highway. The Court found that a DOCS van was a police vehicle and thus found that the late claim applicant had not set forth facts alleging reckless conduct, but merely negligent or careless ones, thus late claim relief was denied.
[9]. The accident occurred on New York State Route 77. This Court of Claims late claim motion decision approached the status of a DOCS van and its driver from another angle, wherein one concern was whether the fact that a vehicle leased to DOCS had some meaning. In determining that a reckless disregard standard would apply, the Court first found that the DOCS van was a “police vehicle” because the driver was a correction officer, who is defined as a “peace officer” under Criminal Procedure Law § 2.10 (25), and thus a “police officer” under Vehicle and Traffic Law §132, meaning that if he were “acting pursuant to his duties” the State owned vehicle would be a “police vehicle” under Vehicle and Traffic Law §132-a and thus entitled to the immunity afforded by Vehicle and Traffic Law §1104.
1[0]. In reviewing a jury verdict apportioning fault the Second Department noted that a New York City Department of Corrections vehicle transporting prisoners and operated by a New York City Corrections Captain was a “police vehicle” and cited to Vehicle and Traffic Law §§132-a and 101 almost parenthetically, and to Vehicle and Traffic Law §114-b in the same fashion. Confusing the finding (and decreasing its precedential value) is mention of the vehicle being equipped with emergency sirens [which if it really were a police vehicle such equipment would be exempted under Vehicle and Traffic Law§1104(c)], and the fact of its being operated on public highways.

[1]1. Vehicle and Traffic Law §101, defining “Authorized emergency vehicle”, provides
“Every ambulance, police vehicle or bicycle, correction vehicle, fire vehicle, civil defense emergency vehicle, emergency ambulance service vehicle, blood delivery vehicle, county emergency medical services vehicle, environmental emergency response vehicle, sanitation patrol vehicle, hazardous materials emergency vehicle and ordnance disposal vehicle of the armed forces of the United States.” (emphasis added).

1[2]. Vehicle and Traffic Law § 114-b, defining “Emergency operation” provides
“The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service.” (emphasis added).

1[3]. Indeed, in Harrington v State of New York, UID # 2007-039-045, Claim No. 109133, Motion Nos. M-73276, CM-73508 (Ferreira, J., November 7, 2007), the Court notes the potentially contraindicated consequences to applying these scattered statutes in the fashion applied, particularly when “transporting prisoners” is denominated an emergency operation. The Court felt constrained by what it viewed as the plain meaning of that language in the “emergency operation” definition [Vehicle and Traffic Law §114-b] and the legislature’s failure to modify that provision despite the likelihood that the routine transport of prisoners is hardly the type of emergency operation envisioned. In this Court’s view, however, it is the courts who have expanded the applicability of the immunity provisions of Vehicle and Traffic Law §1104 beyond what was intended, by sifting provisions together that were not necessarily meant to be read together.
1[4]. The DOCS van was also found to be an authorized emergency vehicle under Vehicle and Traffic Law §§1229-c(4) and 101.
1[5]. Claimant’s witness list included Correction Officer Richardson and the claimant.