Decayette v State of New York

[*1] Decayette v State of New York 2005 NY Slip Op 50820(U) Decided on April 25, 2005 Court Of Claims Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 25, 2005
Court of Claims

David Decayette, Claimant,

against

State of New York, Defendant.



107869



Claimant's attorney:Andrew F. Plasse, Esq.

Defendant's attorney:Hon. Eliot Spitzer, New York State Attorney General By: Vincent C. Cascio, Assistant Attorney General

Thomas H. Scuccimarra, J.

David De Cayette, the Claimant herein, alleges that Defendant's agent, the New York State Department of Correctional Services (hereafter DOCS) negligently failed to maintain and operate a bus it owned and operated through its employee, causing an accident, as a result of which Claimant suffered serious physical injury. Trial on the issue of liability alone was held on February 1, 2005.

Claimant testified that he was housed overnight at Downstate Correctional Facility (hereafter Downstate) on or about "May 8th, 2002"[FN1] for a deposition directed in another inmate's case to be held at Sing Sing Correctional Facility (hereafter Sing Sing) the following day. On the morning of May 7th, at approximately 7:00 a.m., he was prepared for transport to Sing Sing with shackles and handcuffs, and boarded the DOCS bus along with twenty (20) or so other inmates. Describing the mechanics of the restraints, Claimant said that first handcuffs are put on, ". . . then the black box is placed on. Then a chain comes around my waist and fits into the black box. It is then locked, two locks has been placed on the chain while it's on my waist and it's kind of restrains my hand movement, both hands from going up and down. So I have limited movement with my hand. Then you have the chain that is placed on both of my legs . . . [at the] ankles." [T-12-13].

Two (2) correction officers were on the bus, Correction Officer Lewis and Correction Officer D'Afflitto. Correction Officer Lewis was driving. Claimant described the bus as "almost like an ambulance type bus but . . . bigger. It would be two and a half times bigger than that in size and you can't really see nothing on our side unless you . . . [were] standing." [T-11]. The only view out of the bus was forward, toward the windshield. The correction officers sat in front, behind a "wire gate." [T-11]. Claimant was seated in the right hand side of the bus, in the last row. One other inmate sat with him, closer to the outside area of the bus, while Claimant sat on the inside. The bus was not equipped with seat belts.

At approximately 9:00 a.m. the bus arrived at Sing Sing, and stopped outside the fence separating the administration building and prison from a parking area. One of the correction officers left the bus to go to the administration building, returning shortly thereafter. Claimant remained in his seat the whole time. When the officer returned, Claimant said that the officer did [*2]not get back on the bus, but heard him ask the driver if he needed assistance backing up. When the offer was declined, the driver proceeded to back up, at a speed of "within five and ten miles" per hour. [T-15] Claimant said that "the bus hit something and automatically my body lift off the seat and my body . . . went forward with the impact of the movement and my shoulder came forward and hit the seats in front of me and I sat back and hit the back of my head and I didn't remember anything else."[T-16]. He said that the impact was "pretty severe", but that it was "hard to say" if there was noise. [T-16].

The next thing he remembered was regaining consciousness in the facility infirmary and speaking briefly with Officer Lewis.

Claimant drew a diagram - not to scale - of how the accident occurred, admitted in redacted form without certain narrative portions. [Exhibit 2]. He explained that the diagram showed ". . . the incident, the parking area of what generally the route I was questioned on . . . " [T-20]. Explaining that it showed where Claimant sat in the last row of the bus on the right-hand side, he further explained that the "x" on the diagram shows "where the bus was hit at or where the car that was there." [T-22]. Although the diagram depicts a vehicle striking the DOCS bus, no explanatory testimony was offered on direct with respect to the diagram other than that quoted above.

On cross-examination, Claimant conceded that the diagram, drawn "probably a week or so" after the accident, was based on information received from other sources, not personal knowledge. [T-23]. Since he could not see out of the bus except through the front windshield, and woke up in the facility infirmary after the impact, he never saw the placement of the bus and car outside the bus - apart from that view through the windshield - after the accident. In later testimony he claimed to have woken up as he was taken off the bus. Claimant confirmed that the van had five rows of seats on each side separated by an aisle, and that he sat in the last row on the right on the aisle side. He recalled being stopped for approximately one-half hour before the bus started to back up. From his vantage point, he could not see the driver's foot, and thus did not see whether his foot was on the brake or on the gas. He stated he was able to see the driver's hands moving the steering wheel to adjust around cars. When queried, however, he again admitted that he could not see outside of the bus to know whether there were cars to get around or not. Additionally, he stated that he did not know whether it was the driver's braking or an impact that caused him to move forward and back, ultimately hitting his head on his seat back. He did not, however, fall out of his seat.

On cross-examination Claimant also became unsure as to whether the officer who had gone to the administration building re-boarded the bus, but then became more positive that the officer remained outside the bus. He ultimately could not credibly say - in this Court's view - whether the speed of the van was increasing or decreasing prior to the collision. At trial he seemed to state at first that there was "a bit of an acceleration at one point . . . " [T-38], but then said his deposition testimony to the effect that he could not tell if the bus accelerated was consistent with trial testimony that he could feel a "sudden movement in the bus." [T-39].

Some time after the accident, as noted, the bus was apparently moved inside the facility, and parked in front of the infirmary. Claimant became aware of this, because he was awakened by a nurse giving him some type of nasal spray on the bus, and was thus awake when he was removed from the bus. [T-42]. [*3]

Officer Morris, a 36-year DOCS employee, testified concerning his investigation of the accident occurring on May 7, 2002. As the fire and safety officer, he was responsible for responding to all incidents at Sing Sing involving employee or inmate accidents, fire safety, or any other safety matter that might arise. The watch commander on that date directed him to "report down front where there was an accident with the Downstate bus." [T-83]. Since he had been told that the bus had hit a car, when he arrived at the scene within five minutes of being directed to report, he took photographs of the car and the bus. [See Exhibit A]. He also got on the bus to see to the well-being of the passengers, and told them about his "procedure." He said that he told them that "every inmate would be checked out in the emergency room," that he would need "paper reports . . . and . . . statements from everybody . . . " [T-84]. At his direction, Officer Richard Lewis - who had been driving the bus - wrote a memorandum describing the accident. [Exhibit E]. The memorandum states in pertinent part: "At approximately 9:15 AM on 5/6/02 (sic) I, C.O. R. Lewis while backing out of the admin. Bld. of Sing Sing C.F. I backed into the front drivers side fender of a parked car . . . The Honda had damage to the front fender DNS 45 [the DOCS bus] had no damage . . . " [Exhibit E]. Officer Morris also recalled that the Claimant was not unconscious when the nurse examined him, and as he was taken off the bus on a stretcher. Officer Morris remembered Claimant saying he couldn't move his legs.

Richard Lewis, a now retired correction officer, also testified. He retired on December 10, 2003. He had been employed by DOCS for over 25 years, and had worked at Downstate for approximately 23 years. He had been working exclusively in transporting prisoners as a "transfer officer" for the last two years of work. [T-55]. Other than a commercial driver's license, the job did not require any special training. In terms of his status on the day of the accident, he had taken and passed the motor vehicle exam for a commercial driver's license "about a month prior", and possessed a permit. [T-56]. Correction Officer D'Afflitto had a commercial license, and was the officer in charge on May 7, 2002. As first officer, "Officer D'Afflitto would be in charge of paperwork and assorted things and [ Officer Lewis, as second officer,] . . . would be mostly in charge of the inmates on the bus and also driving the bus." [T-57].

Officer Lewis's description of the bus differed somewhat from Claimant's. He described the vehicle as a "mini bus, sort of like a small school bus, vinyl seats, seats twenty inmates, . . . two to a seat, five rows of seats on each side . . . an aisles in the middle . . . [A] large gate with plexiglass in front of it with a door . . . separated [the inmates] from us . . . " [T-58]. The correction officer who was not driving sat behind the plexiglass, with the inmates to his left. Inmates could not see out of the bus without standing up. There was no view through the front windshield for the inmates. In order to back up the bus, the operator would use four (4) side mirrors. There were two mirrors that were elongated in shape one on the driver's side, and another on the passenger's side, as well as two round mirrors on each side. The rearview mirror was used to watch inmates. The bus had an automatic transmission.

Officer Lewis recalled leaving Downstate with eighteen (18) inmates at approximately 7:30 a.m. on May 7, 2002, and arriving at Sing Sing at approximately 8:30 a.m. The weather was sunny and clear, and the trip took the usual hour. Officer Lewis identified a roster showing the names of the inmates who he transported on that day, including Claimant. [Exhibit B]. None were familiar to him prior to that day, and only Claimant's name was familiar now. The security measures taken were described in the same fashion as Claimant had described them. All inmates [*4]remained in the same positions they had occupied from their departure from Downstate to their arrival at Sing Sing.

When the bus arrived at Sing Sing and stopped outside the administration building, Officer D'Afflitto exited the bus, giving Officer Lewis the weapon he had been carrying as the officer in charge, and went to the back of the bus to take out paperwork belonging to the passengers. When Officer D'Afflitto returned approximately one-half hour later, he got back on the bus, and Officer Lewis returned the weapon, asking Officer D'Afflitto if he was ready to go. Receiving a positive response, Officer Lewis put the bus in reverse, keeping his foot on the brake.

He noted that the bus "goes back on its own a little bit . . . there's a slight upgrade from the administration building . . . to where . . .[Officer Lewis] had to back up to make a turn to go around to the gate . . ." for the inmate drop-off point. [T-66]. He checked his mirrors, and looked around as well. As he looked in the driver's side mirror, reversing slowly ". . . because . . . [he] was a new driver to the bus...", he noticed a vehicle trying to make its way around the bus on the passenger side. [T-67]. He thought that he had "totally stopped because . . . [his] foot was on the brake at the time and then by the time . . . [the vehicle] went around . . . [the bus] and . . .[Officer Lewis] had turned around and looked in . . . [the] other mirror, . . .[he] noticed that . . .[he] had backed into a small car . . . [The] rear passenger fender-bumper [of the bus] hit his fender, driver's side." [T-67]. Officer Lewis maintained that from the time he put the vehicle in reverse to the time he hit the parked car his foot never left the brake and never hit the gas. Officer D'Afflitto had been doing paperwork throughout the incident, looking up from his writing only when Officer Lewis exclaimed aloud "Oh, s**t, Louie, I hit that car." [T-68]. After Officer Lewis's exclamation, some inmates ". . . stood up to look out the small window at the top . . .and then they made some comments that . . . he hit that car. He wrecked that car . . . [Claimant] was one of the inmates that stood up and looked out the window." [T-68-69].

Officer Lewis did not see any inmates fall off their seats, nor did he hear the sound of anyone striking the seats within the bus, or any noise when the bus hit the parked car. After he discovered that he hit the parked car, Officer D'Afflitto got out to check, and they called the facility to get instructions.

Officer Lewis remained in the bus, only observing the damage he had done to the black Honda "when . . . [he] backed out later on, . . . [and saw] that there was a small dent in the fender." [T-71]. He identified the first of the series of photographs in Exhibit A as a photograph of the bumper of the minibus, and the remaining photographs were of the damaged Honda. Using the photographs, Officer Lewis indicated that it could be seen that the bus's bumper scraped along the fender of the Honda, ". . . and then bent it in when it finally probably stopped against it." [T-72]. After Officer Lewis's exclamation, inmates started calling out their various alleged injuries. Claimant was not one of those complaining. Officer Lewis identified his motor vehicle accident report [Exhibit D], and the memorandum he wrote to Officer Morris. [Exhibit E]. He said Claimant was not unconscious as far as he knew.

On cross-examination, Officer Lewis confirmed he had been a transport officer since January 2002, and had driven the type of bus involved "a couple of times." He also indicated that the windows on the sides of the bus were "elongated . . . from . . . right around where the second seat of the bus [is] all the way toward the back and they're about eight inches wide . . ." [*5][T-78].

On re-direct he explained that from a seated position in the inmate portion of the bus the windows are approximately an "arms-length" above. [T-80]. One cannot see out of the windows except when standing.

Finally, Officer D'Afflitto, testified essentially to the same series of events as did Officer Lewis. He indicated that he did not see Officer Lewis's foot on the pedals from his seated position on the bus, he could feel the bus moving backwards "very slow . . . walking speed," [T-106], and only became aware that there had been an accident when he heard Officer Lewis exclaim, "Oh, s**t, I think I hit a parked car." Officer D'Afflitto had been looking down, doing paperwork, from the time he got back on the bus after checking in with administration. He did not feel any "jolt" of the bus, did not observe any inmates thrown from their seats - indeed, his paperwork was not moved about and he had continued writing until Officer Lewis told him he'd hit the car. When Officer D'Afflitto got off the bus, he saw the back bumper of the bus was against the parked car. Officer D'Afflitto identified the photographs in Exhibit A as depicting first the bumper area of the bus, and then the damaged Honda. He said there were scratches and a small dent, and the fender was pushed in slightly.

Thereafter, Officer Morris came, as did some other individuals he did not recognize. The witness identified the report he wrote of the incident in memorandum form directed to Lieutenant Artuz. [Exhibit 1]. Officer D'Afflitto said that after they arrived at the infirmary area in the bus, Claimant said he "couldn't move . . . was paralyzed" at which point the nurse came on the bus, and Claimant was moved off on a stretcher.

Officer D'Afflitto confirmed that he had a full commercial driver's license on the day of the incident.

Admitted on consent, without explanation, is a repair estimate from Star Collision showing the cost of repairing damage to the Honda identified by Officers Lewis and D'Afflitto in their reports, as $518.00 (rd). [Exhibit 3].

Other documents admitted on consent, without explanatory testimony, include a report of inmate injury form, [Exhibit C], a motor vehicle registration document [Exhibit F], and what appears to be log sheet for the day containing notations of the accident. [Exhibit G]. The report of inmate injury form, dated May 7, 2002, indicates that Claimant claimed he suffered from whip lash and paralysis from the neck down, and also indicates he was neither taken to the facility hospital nor to an outside hospital, but to a housing unit, and was advised to follow up at sick call.

The Court took judicial notice of Vehicle and Traffic Law §501(5) allowing an individual with a commercial driver's license learner's permit to drive a motor vehicle provided he is accompanied by a person who has a commercial driver's license. [T-112-113].

No other witnesses testified and no other evidence was submitted.

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.

As an initial matter, no evidence of any failure to maintain the vehicle was introduced [*6]and, accordingly, any cause of action premised on that theory is hereby dismissed.

More significantly, however, Claimant has failed to establish that Defendant breached any duty of care owed to Claimant. The consistent, credible testimony offered herein is that the driver of the prison bus utilized the safety equipment present - namely the side view mirrors - utilized his senses, and took reasonable precautions when reversing at a barely perceivable speed and, nonetheless, suffered an impact so slight with a parked vehicle, that it did not even disrupt the passenger writing paperwork in the front seat. What more should the driver have done? Just because an accident occurs when a driver has used every available precaution does not mean that he is then liable in negligence to his passengers. The Court cannot credit the unreliable testimony of the Claimant - who was not in a position to actually see what occurred - and who varied his testimony as to what he experienced with his other senses. The only credible witnesses to this accident, namely, Officers Lewis and D'Afflitto, confirm that the side-view mirrors were consulted before the bus even began to move, that Officer Lewis was aware of his surroundings, and that the vehicle was being operated so slowly - "walking speed" - that Officer D'Afflitto continued to write as the bus moved.

Accordingly, Claim Number 107869 is in all respects dismissed.[FN2]

Let Judgment be entered accordingly.

Appendices: Footnotes

Footnote 1: [T-9]. All quotations are to the transcript [T] unless otherwise indicated. According to the balance of the trial testimony, Claimant apparently misstated the date of his stay at Downstate.

Footnote 2: Since the Court bases its conclusion that there was no breach of duty on what it perceives as the reasonable precautions taken by the State's agents, it does not reach the additional argument advanced by the Defendant that this is a case in the category of de minimus non curat lex, although the credible evidence supports that additional basis for dismissing this claim.