Inmate claimant proceeding pro se established State liable for negligent failure of transport officers to assist him in disembarking prison van while he was in complete restraints. Injuries did not arise out of use or operation of a motor vehicle, thus serious injury provisions of Insurance Law do not apply. After assessment of comparative fault (20%), damages $4,000.
|Claimant short name:||POWELL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||TYRONE POWELL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||May 25, 2010|
|See also (multicaptioned case)|
Tyrone Powell alleges in his claim that defendant's agents at Fishkill Correctional Facility [Fishkill] negligently failed to provide him with safe transport from a medical appointment on December 11, 2003 causing him to suffer injury. More specifically, he explained at the unified trial held on April 23, 2010, that as he stepped onto the prison van after his appointment with an outside allergy specialist, in complete restraints - including handcuffs, waist chains and leg irons - he stumbled and fell because officers failed to assist him and failed to provide a proper step up to the van. Part of the reason for his falling, too, he said, was trying to avoid exposed metal poles and brackets where the front seat immediately behind the driver would normally be. He also seemed to say that he fell on a part of the brackets, though the testimony was equivocal.
Mr. Powell testified: "The van did not have a stepping device, just the running board" which "was loose."(1) When he stepped up to get inside the van, stepping awkwardly because he was in full restraints, he fell down and hit the pole sticking up "about two inches" out of the floor of the van. He said the officers asked "are you alright?" and claims to have replied "I am in pain," yet "they raised [him] back onto [his] feet even though [he] was saying 'I am in pain,' and then rushed" him back to Fishkill after not providing him with treatment.
At Fishkill, he was taken to the emergency room and saw the nurse. She examined him, "cleaned up [his] cut, gave [him] some bandages, and some ibuprofen" for pain. "The next day," he said, he "started to complain about back pain which [he has] to this day, and numbness from the back of [his] leg running down to [his] toe. Anytime it gets cold, this numbness comes back."
Claimant submitted a response form to the Inmate Grievance Resolution Committee [IGRC] concerning an inmate grievance he filed which contains information apparently obtained from one of the officers who transported him that day. [Exhibit 2]. This response indicates:
"I spoke to officer Rios on 12/20/03 regarding the trip. (He was one of the transportation officers that trip) He states that for whatever reason the step which is normally available was not in the van that day. I advised him to, in the future, obtain a replacement step or assist the inmate into the van if he requests such." [See id.].
Excerpts from Mr. Powell's ambulatory health record [AHR] confirm his immediate report of the slip, fall and injury and the treatment provided in the facility infirmary on December 11, 2003. [Exhibit 3]. The examining nurse recorded:
"[Mr. Powell] [s]tates stepped up into van and slipped. Left knee with slight abrasion to knee cap and small scrape 1" length to inner aspect of knee. Cleaned [with] betadyne and dressed [with] bandaids and antibiotic ointment" [See ibid.].
The AHR records subsequent visits concerning the fall on December 12, 2003, December 15, 2003, December 18, 2003 and December 19, 2003. [Ibid.]. The December 12, 2003 AHR includes the subjective complaints as recorded by medical personnel as:
"[Patient] states he fell yesterday. [Injured left] knee. Now has [left] knee and [lower back pain]." [Ibid.].
The last visit noted on the portion of the AHR submitted in evidence is March 1, 2004 (preceded by a notation on February 19, 2004). Neither date contains references to the lower back or knee at all, but the notations are not particularly legible.
Finally, Mr. Powell submitted the Superintendent's determination on his grievance, which provides:
"This grievance is granted to the extent that, Per Capt. Pelc, a step will be available. According to former D.S.A. McAnany, the vehicle in question was in good order and had no repairs pending completion." [Exhibit 4].
On cross-examination, claimant confirmed that the incident occurred on December 11, 2003, and that he served a Notice of Intention to file a Claim asserting such date of accrual on the Attorney General's Office by certified mail, return receipt requested on January 22, 2004. [Exhibit A]. The claim was served by certified mail, return receipt requested on August 23, 2004 (only seven (7) months later). [Exhibit B]. The claim expands somewhat on the descriptive recitation contained in the Notice of Intention, but contains an erroneous date of accrual of December 10, 2003, all of which was acknowledged by claimant, with the explanation that "that was why" he had been trying to secure through discovery from the State "the name of the outside hospital [he] had gone to for the allergy treatment," to pinpoint the date. Claimant also agreed that neither the Notice of Intention nor the claim mentions that the running board was loose but said that although it was not something he himself had observed at the time, he "learned about it" afterward.
Additionally, Mr. Powell agreed that he filled out an Inmate Injury Report form and signed it on the date of his accident, December 11, 2003. [See Exhibit C]. Upon being shown by counsel for defendant that under the "cause of injury" portion of the form it is indicated "wet stairs outside of van," claimant insisted with some agitation that he wrote his narrative portion and signed it, and denied that the other items on the form were there when he signed it. [Id.]. His own narrative provides: "while I was stepping up into the van I fell to the floor and bruise[d] my [knee] and my leg." [Id.]. The portion of the form completed in a different handwriting, apparently by Correction Officer Rios, and including the information that claimant was "getting into state van" when he was injured, and the putative "cause of injury" as "wet stairs outside of van", notes that the officer saw claimant
"slip on the stairs and bang his left leg and knee. I asked Inmate Powell if he was alright twice, he said yes both times." [Ibid.].
Mr. Powell agreed that the Inmate Injury Report does not say anything about back pain, but explained that the back pain began the following day and said again that "when it gets cold, this numbness comes right down to his toe" to this day.
He confirmed that he suffers from a variety of medical conditions, including diabetes, allergies, and high cholesterol, and is seen for these chronic conditions. With regard to his complaints about back pain, Mr. Powell acknowledged that the "last time" he refused to take any more Motrin or other medication and decided he "just would deal with the pain."
Finally, Mr. Powell confirmed that he had been transported in the same van from Fishkill to the clinic, but insisted that the officers helped him up and out of the van on that leg of the trip, with "one to the left and one to the right the way they're supposed to." He repeated that on the way back to Fishkill, the "officers were behind [him] just chatting [with] each other." There was no indication that he requested help.
No other witnesses testified and no other evidence was submitted.
Defendant moved to dismiss the claim based upon two of the affirmative defenses raised in the answer. First, the defendant argued that the claim was not timely served, because the notice of intention contained one date, and the claim contained another, with the result that the time within which to serve and file a claim was not extended by the timely service of a notice of intention. Second, the defendant argued that claimant had not alleged or sustained a serious injury under Insurance Law §§5102(d) and 5104, asserted to be applicable because the claim for personal injury from the accident involved the use or operation of a motor vehicle. See generally Civil Practice Law and Rules §3016(g).
Court of Claims Act §11(b) requires that a Notice of Intention "state the time when and place where such claim arose, [and] the nature of same . . ." The purpose of the Notice of Intention is to put the State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. Here, the timely and properly served Notice of Intention to file a claim contained the correct date of accrual, and contained an adequate description of the nature of the claim, thereby satisfying the multiple purpose of the instrument of allowing the State to be fully apprised of the type of claim that would be asserted and allow investigation to begin, as well as toll the time within which claimant needed to serve and file the actual claim to two (2) years from its accrual. Court of Claims Act §10(3).
The fact that the claim herein contains the incorrect date of accrual does not negate the fact that within little more than one (1) month of the incident, the State was put on notice via a notice of intention with the correct date that Mr. Powell would be claiming that while an inmate at Fishkill he was injured while in full restraints while entering a prison van without support or a stepping device on the return trip from seeing an allergist; that the first row seat was missing and hardware was exposed, that he lost his balance because he was not helped, and hurt his back, suffered a two-inch laceration on his left knee, and scratches. [See Exhibit A]. Other than the incorrect date of accrual by one day, the claim includes all the information contained in the Notice of Intention, posits various legal theories for recovery, and includes a monetary damages figure. [See Exhibit B].
While it is often repeated that the State's waiver of sovereign immunity requires strict compliance with the enumerated pleading requirements of the Court of Claims Act, it is similarly well established that the nature of the claim before the Court and the level of information supplied to the defendant by the documents served on the State determines whether such pleading requirements have been satisfied. This is not the type of claim where the State is being asked to "ferret out or assemble information that section 11 (b) obligates the claimant to allege
. . . " Lepkowski v State of New York, 1 NY3d 201, 208 (2003). The descriptive elements of the claim here, together with the timely served Notice of Intention, are clearly sufficiently definite enough "to enable the State . . . to investigate the claim promptly and to ascertain its liability under the circumstances." Heisler v State of New York, 78 AD2d 767 (4th Dept 1980). There is no lack of notice, surprise or prejudice to the State sufficient to elevate a numerical slip-up by a pro se claimant to jurisdictional dimension. The motion to dismiss the claim on this ground is denied.
The motion to dismiss the claim based upon the failure to allege and establish a serious injury is also denied. The Insurance Law limitations do not apply where, as here, looking at the facts established as a whole after trial, the injury alleged does not arise "out of negligence in the use or operation of a motor vehicle . . ." [Insurance Law §5104 (a)] as such use or operation has been interpreted in the case law. Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD2d 1004 (2d Dept 1979).(2) Rhodes v State of New York, UID # 2009-018-030, Claim No. None, Motion No. M-76376 (Fitzpatrick, J., June 22, 2009);(3) Matter of New York City Tr. Auth. (Ambrosia), 102 Misc 2d 842 (Civ Ct, Kings Co.1979), affd 102 Misc 2d 846 (App Term 2nd Dept. 1980).(4) Cf. Hill v Metropolitan Suburban Bus Auth., 157 AD2d 93 (2d Dept 1990); (5) Newland v State of New York, UID # 2004-031-123, Claim No. 106902, Motion Nos. M-69060, M-69040 (Minarik, J., September 24, 2004).(6)
To demonstrate that the injury is one arising out of the use or operation of a motor vehicle, the following should be considered:
" ' 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the accidental use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.' " Matter of Manhattan & Bronx Surface Tr. Operating Auth., supra.(7)
If use or operation of the vehicle was an instrumentality of the claimant's injuries, then the serious injury threshold applies. See Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 (1996)(8) ; cf. Martinelli v Travelers Prop. Cas. Ins. Co., 271 AD2d 890 (3d Dept 2000).(9)
Claimant has alleged that the maintenance of the van was defective in that uncovered hardware was allowed to protrude (and indeed such hardware is either what he also alleged he fell on or what he tried to avoid), and he has alleged negligent failure to provide a proper means of entry to the prison van because of the lack of a step, as well as an alleged negligent failure on the part of transport officers to appropriately assist an inmate whose mobility was impeded under the constraint of full restraints.
With regard to maintenance, there was nothing in the record to show any defect in the care of the van, specifically the allegations of protruding hardware because of a missing seat or the presence of a wobbly running board. Indeed, the only information provided was that the van was in good working order. Similarly, the step is not something that was actually attached to the van from the information provided, but rather an additional piece of equipment that transport officers normally had on hand to provide assistance to those boarding and disembarking, according to the grievance document references.
In terms of the genesis of his injury, then, it clearly primarily arises from the negligent failures of the transport officers to assist an inmate in their care and custody, rather than the use or operation of a motor vehicle [Insurance Law §5104(a)(10) ], and the provisions of Insurance Law §5102 (d)(11) regarding the need to allege serious injury in the claim [Civil Practice Law and Rules §3016(g)(12) ] and prove serious injury at trial do not apply. As noted in Matter of Manhattan & Bronx Surface Tr. Operating Auth., supra at 1005, "the injury neither arose from the intrinsic nature of the bus, as such, nor did the bus, itself, produce the injury." The vehicle was not an instrumentality of his injury, but rather the negligent failures of the transport officers to assist an inmate constrained by the impediment of full restraints was a proximate cause of any injury. Had they failed to assist him up or down a steep set of stairs to a building, for example, the same type of incident might have occurred.
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). " '[T]he fact-finder is not required to credit a particular fact testified to by one or even six witnesses,' but instead should assess the likelihood of a fact being true 'by the totality of the circumstances surrounding the occurrence as well as by the ordinary laws that govern human conduct' (People v Collier, 85 Misc 2d 529, 553 [NY Sup 1975])." Medina v State of New York, UID # 2007-028-010, Claim No. 106664, Motion No. M-71375 (Sise, P.J., March 2, 2007). Certainly the court is not obligated to accept in its entirety the testimonial evidence offered by one witness alone. See 1A NY PJI 3d 1:41, at 55-56 (2006). This is because a court is always required to assess the credibility and consistency of any witness offered, and has done so in this case. On the whole, claimant's account of events was credible and supported by other evidence - such as the notations in the grievance that a step was not available together with the advice that transport officers assist restrained inmates (suggesting that they did not assist him as claimant reported) - even if he exaggerated to some degree the extent of the injuries he sustained, or could not specifically recall the exact sequence. Upon review of all the evidence, including listening to the only witness to testify and observing his demeanor and assessing his credibility as he did so, the Court finds that claimant has established an adequate basis for the State's liability by a preponderance of the evidence.
The Court credits Mr. Powell's familiarity with escort procedures, since he was apparently one who regularly took medical trips, and credits his indication that when he left the correctional facility for his medical appointment transport officers helped him get on and off. Since no other witnesses testified, the Court credits Mr. Powell's description of continuing in full restraints after his appointment, and the presence of the officers behind him rather than on either side where they might have offered some help to someone in their control. The fact that there was no step available, though there usually was one, is also established.
By the same token, claimant impressed the Court as an individual who could speak up for himself. He could have asked for help and apparently did not. For this reason, the Court finds that Mr. Powell is in part responsible for his fall.
With regard to any injuries, the claim asserts that Mr. Powell suffered "a Permanent, Two Inch Laceration on his Left Knee, Back Injury, Numerous Scratches, on his side, Suffering Severe Physical and Mental Pain and Anguish." [Exhibit B, ¶15]. He seeks damages therein in the amount of $50,000.00. [Ibid.].
The only medical substantiation provided at trial were entries made in claimant's AHR on the day of the incident, and shortly thereafter, none of which establish an injury beyond a temporary inconvenience of soreness and a minor cut, and pain at the site. Mr. Powell's subjective complaints of pain in his lower back were also noted therein. Without expert medical testimony to establish a connection between any current complaints made at trial and this accident, however, claimant did not establish more than minor injury. Claimant did not establish the extent or permanency of injuries proximately caused by the State's negligence.
Based on the foregoing, the Court finds that the State of New York is 80% responsible for the injuries suffered by Claimant in this accident, and that the Claimant is 20% responsible for his injuries. Damages in the total amount of $5,000.00 for the conduct of the State's agents in negligently contributing to his fall, and for his pain and suffering and non-permanent physical injuries, reduced proportionately to $4,000.00, are reasonable under the circumstances. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
Let judgment be entered accordingly.
May 25, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to trial notes or audio recordings unless otherwise indicated.
2. The bus driver was injured when he was stabbed by a passenger whom he refused to let off the bus at a location other than a designated bus stop."[T]he injury neither arose from the intrinsic nature of the bus, as such, nor did the bus, itself, produce the injury . . . a motor vehicle, by its use or operation, [must be] the actual instrumentality which produces the injuries. This requirement, that the vehicle itself actually produces injury, reflects the limitation of no-fault insurance to automobile torts as distinguished from the other types of tort. Here the injury resulted from a knife-wielding passenger and the appellant's operation of the bus was largely incidental." Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), supra at 1005.
3. "Although the State could be a 'covered person' for purposes of the § 5102 of the Insurance Law, as the owner of the truck Movant was unloading, here Movant has not alleged any negligence in relation to the use or operation of the truck (see Insurance Law §§ 5102(j) and 5103; Matter of Edwards v State of New York, 119 Misc 2d 355; Joyce v Winkler, 71 AD2d 28; Walton v Lumbermens Mutual Casualty Co., 88 NY2d 211, 214). It appears from Movant's allegations and description of what happened that the accident did not 'arise out of' the use of the truck, but as a result of the unanticipated lowering of the loading dock ramp off the main kitchen . . . (Insurance Law § 5103[a]; Walton, 88 NY2d at 215). Under these circumstances, Movant need not meet the 'serious injury' threshold to bring a claim and the supporting documents presented adequately meet Movant's burden on a motion for permission to file a late claim."
4. "Prospective bus rider who was injured when she tripped on sidewalk while approaching bus was not injured through the 'use or operation' of a motor vehicle and thus she was not a 'covered person' within meaning of Insurance Law and not entitled to recover no-fault benefits from transit authority . . ."
5. Plaintiff was exiting the rear exit doors of the bus when the bus door caught her arm, and she then tripped on something on the bus staircase, lost her footing, and fell to the sidewalk, falling into a hole in the sidewalk directly below the exit door. She allegedly sustained personal injuries as a result of the fall, and was unable to return to work for a period of two weeks. She was required to allege and prove serious injury vis-à-vis the bus company. The codefendants could claim contribution against bus company, however, even though plaintiff's direct suit was dismissed.
6. Decision granting summary judgment dismissing claim. While stepping down from prison van, inmate claimant was allegedly injured because the leg restraints were too short to permit him to step safely off the bus. He tripped, fell into a nearby wall, and suffered injuries, but did not allege (or show) serious injury, only that he broke his glasses, cut his hand, and felt pain in both legs.
7. The bus driver was injured when he was stabbed by a passenger whom he refused to let off the bus at a location other than a designated bus stop."[T]he injury neither arose from the intrinsic nature of the bus, as such, nor did the bus, itself, produce the injury . . . a motor vehicle, by its use or operation, [must be] the actual instrumentality which produces the injuries. This requirement, that the vehicle itself actually produces injury, reflects the limitation of no-fault insurance to automobile torts as distinguished from the other types of tort. Here the injury resulted from a knife-wielding passenger and the appellant's operation of the bus was largely incidental." Matter of Manhattan & Bronx Surface Tr. Operating Auth., supra at 1005.
8. In the context of determining whether a truck driver - injured while unloading his truck at a supermarket's loading dock when the store's "levelator" utilized as a ramp between the truck and the dock collapsed - was entitled to no-fault benefits the Court of Appeals said: "The vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises . . . A person engaged in loading or unloading the vehicle may be using it within the meaning of the statute, but that does not necessarily mean that his or her injuries arose out of the use of the vehicle. In such circumstances, if the injuries are caused by something other than the vehicle itself, the injuries cannot be said to have arisen out of the use of the vehicle." Walton v Lumbermens Mut. Cas. Co., supra at 215-216; cf. Matter of 20th Century Ins. Co. (Lumbermen's Mut. Cas. Co.), 80 AD2d 288 (4th Dept 1981) (Insured person unloading the trunk of his parked car was held to be using the vehicle for coverage purposes when another car pinned him between the two vehicles).
9. In this case the necessary nexus was found, where a mason sustained injuries while raking cement delivered through the chute of a cement truck, when the chute allegedly swung and hit him in the back (perhaps as the truck was backing up). The Court said: "The fact that concrete may or may not have been pouring down the chute at the moment plaintiff was injured is irrelevant since it is undisputed that the unloading process was not completed. Regardless of whether plaintiff was injured when the chute moved and struck him or when he backed into it, the chute was the instrumentality which caused the injuries. The purpose of the cement truck was to deliver cement and the chute attached to the truck was essential to the unloading of the cement. Accordingly, we conclude that the chute as a part of the vehicle was a proximate cause of plaintiff's injuries. We further note that the fact the driver attached extensions to the chute does not convert the chute into something other than a part of the vehicle. There is nothing in the record to indicate that the extensions were anything other than normal equipment which accompanied the truck for use in unloading cement. The record establishes as a matter of law that plaintiff's injuries arose out of the use or operation of the cement truck." Martinellli v Travelers Prop. Cas. Ins. Co., supra.
10. Insurance Law § 5104, in relevant part, provides:
"(a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."
11. Serious injury is defined by Insurance Law § 5102 (d) as follows:
"(d) 'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
12. Rule 3016 (g) of the Civil Practice Law and Rules provides as follows:
"(g) Personal injury. In an action designated in subsection (a) of section five thousand one hundred four of the insurance law, for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, the complaint shall state that the plaintiff has sustained a serious injury, as defined in subsection (d) of section five thousand one hundred two of the insurance law, or economic loss greater than basic economic loss, as defined in subsection (a) of section five thousand one hundred two of the insurance law."