CARATHERS v. THE STATE OF NEW YORK, #2007-030-042, Claim No. 109001

Synopsis

State found 100% liable for injuries to shackled, wheelchair-bound inmate who fell off the edge of the sloped sidewalk entrance to a hospital. Brake was not set on wheelchair, nor was there evidence that escorting personnel were close enough to prevent any foreseeable accident.

Case Information
UID:

2007-030-042
Claimant(s):

DARRIN CARATHERS
Claimant short name:

CARATHERS
Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

109001
Motion number(s):

Cross-motion number(s):

Judge:

THOMAS H. SCUCCIMARRA
Claimant?s attorney:

WILLIAM J. ROLD, ESQ.1 1.In September 2007 after completion of the trial on liability, a substitution of attorney was filed. The new attorneys are John D. B. Lewis, Esq., and Gary E. Divis, Esq.
Defendant?s attorney:

HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: RACHEL ZAFFRANN, ASSISTANT ATTORNEY GENERAL
Third-party defendant?s attorney:

Signature date:

October 22, 2007
City:

White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Darrin Carathers, who is wheelchair-bound, alleges in his claim that on March 26, 2002 he was injured during a fall from a loading dock at St. Agnes Hospital while under the care of transportation officers from Green Haven Correctional Facility. More specifically, he alleges that transportation officers failed to secure his wheelchair at the loading dock of the hospital, causing him to fall off the dock and sustain injury. Trial on the issue of liability was held on June 5, 2007.


Mr. Carathers testified that on March 26, 2002 he was to be transported to St. Agnes for surgery on his leg to remove a mole. He was in restraints, ?with the belly chain and the handcuffs box, and . . . leg shackles on . . . [his] feet.?[2] While in the ?leg irons,? he said, he cannot move his legs. [T-13-14]. He had been transported to the same hospital by correctional personnel on other occasions, and had always entered through what he described as an ?emergency exit,? where the ramp from the van could be lowered to the same level as a ramp ?for handicapped people.? [T-15; Exhibit 31]. This time they took him to what he described as a loading dock, shown on Exhibit 14.

Claimant?s chair was placed on a loading area, where the sidewalk curb - by Mr. Carathers? estimate - was approximately ?two feet maybe? from the ground level, since the sidewalk ?. . . [got] higher as you go up . . . this hill.? [T-18-19]. The surface of the sidewalk was not smooth, and was on a downhill curve. Claimant, in his wheelchair, had been pushed by Correction Officer Dorsanyo to a certain point on the sidewalk, and then left there while the correction officer went back to the transport van to put the lift back into the van. The correction officer did not set the brakes on the chair, nor could claimant reach the brakes to put them on himself. Claimant?s chair began to ?spin around,? rolled toward the street, and went over, causing claimant to fall into the street. [T-23]. As the chair began to roll, Claimant first realized that the correction officer was no longer behind him, pushing him. When he called for Correction Officer Dorsanyo, he came back, as did other officers, who assisted him. The restraints were removed, he said, ?because I was too big, like they couldn?t move me because I was too heavy and the way I was situated, I was on my leg. My leg was bent up under me and I was in pain.? [T-23]. Claimant received medical attention at the hospital.

Describing, on cross-examination, the correctional facility van used to transport him, Mr. Carathers said it was approximately 8 or 9 feet long, had a ?big bubble canopy top? and a remote controlled lift on the right side of the van. [T-29]. The lift could be lowered to the height needed, and the chair would just ?roll out.? The van had been parked alongside a curved corner of a sidewalk, where the pavement sloped down toward the street, as shown on Exhibit 14. When the lift was lowered to the sidewalk height, Mr. Carathers was wheeled off the van, with his back to the van, facing the hospital. Officer Dorsanyo pushed him up into an area of the pavement where an asphalt-like surface turned into a lighter colored, concrete-type surface, and then went back to the van to put the lift back up. He said he was placed in the area of the sidewalk adjacent to where a blue dumpster is parked in Exhibit 14, to the right of the sign on the long side of the dumpster, with his chair facing the double doors to the hospital. The chair spun around so that he was now facing the dumpster and the sign along its side, and the chair then rolled forward off the curb. He estimated again that the curb height at that point was approximately ?two feet.? He did not remember whether the blue dumpster was parked in that location on the day of the accident. When it was suggested by defendant, Mr. Carathers agreed that his chair turned ?90 degrees.?

Although Mr. Carathers agreed that the information was not put in his grievance [see Exhibit 2], he repeated that the wheelchair was ?not locked? and that Officer Dorsanyo had not set the brake. [T-44]. He also agreed with defense counsel?s characterization of the complaint in his grievance as one about the uneven concrete on the loading dock/sidewalk area at St. Agnes Hospital, and not about actions by Department of Correctional Services personnel. Prior to this accident, he conceded, he could move his left leg, and, indeed, could walk with a long leg brace on his right leg and a short leg brace on his left leg, and crutches. He agreed that he did not ?see? the unevenness of the concrete on the sidewalk/loading area, but rather ?felt it,? saying ?I?ve been in a [wheelchair] 26 years. I can feel it.? [ T-48].

At the time of the accident and at trial, claimant agreed he was able to move his arms and hands. He denied ?rocking? his chair while sitting on the loading dock/ sidewalk area by moving his weight from side to side, however, and denied pushing the wheelchair with his left leg at any time. He reiterated that he was shackled. He had a ?chain weight around . . . [his] belly and . . . shackles on . . . [his] feet.? [T-49]. He repeated that he could not move his feet at all with the shackles on.

The grievance claimant filed the day after this incident stated:

?on 3-26-02 I was taken to St. Agne[s] Hospital for a minor surgery. as we approached the emergency area I was let out of the corrections van by C.O. Forbes, and C.O. Dorseno, at the loading garbage dock, as the wheelchair lift hit the deck my wheelchair rolled off the lift down the uneven concrete and off the deck while I was chained and shackled causing injuries to my person.? [Exhibit 2].

In terms of the ?action requested? by the inmate in the grievance, he asked

?[t]hat the deck be repaired to [pre]vent more injuries or deaths[,] or when myself and other wheelchair[-]bound inmates are taken to St. Agnes or any other [hospital,] there is a medical aid[e] present to assist. This deck should be wheelchair accessible according to the (ADA)? [Id.].

The filed claim describes the accident as testified to at trial, as opposed to the written statement made by claimant in his grievance.

No other witnesses testified on claimant?s direct case.

Officer Acken, who had been driving the facility van that day, testified. He did not witness the accident itself, but said that the area where he parked the van was designated by the hospital as the location for dropping off inmates. He estimated that during the year he had worked in the transportation of inmates prior to this accident he had transported inmates to St. Agnes ?numerous times,? or, he ?guessed,? 30 times. [T-84; 94-95]. There had never been a problem or complaint with respect to this ramp. He had no particular training with respect to transporting inmates in wheelchairs. To his knowledge, St. Agnes did not have an entrance for wheelchair patients. Although he did not have a specific recollection as to whether the blue dumpster was there on the day of the accident, Officer Acken said that it was there ?95 to 99 percent of the time? and ?was pretty much a permanent fixture.? [T-87].

Officer Acken testified that Officer Forbes was sitting in the passenger seat when he parked the van, and got out first. After the side door where the ramp extended out was opened, Officer Dorsanyo, who had been sitting in the back got out. Officer Forbes ?stood off . . . maybe like 12 feet away from the van or so with the other inmate in his charge while the third officer [Officer Dorsanyo] was letting the wheelchair patient [claimant] down out of the van,? Officer Acken said. [T-90].

From the driver seat of the van, Officer Acken was able to turn his head ?90 degrees . . . [to] watch the doors . . . [to] open the doors and extend the ramp out . . . [He] watched the other officer wheel . . . [claimant] onto the ramp and set the ramp down on top of the sidewalk and roll him off.? [T-87-88]. Officer Acken said: ?I could see that out of the side of my face, and that was all I watched.? [T-88].

As Officer Acken described it, the sidewalk upon which he lowered the van?s electric, six-foot-wide ramp was sloped ?an inch or two in the course of maybe like a four-foot run.? [T-86]. He estimated that the yellow curb?s height as it ran from the point where the ramp had been put down to the back of the blue dumpster - including the area where claimant was found after falling - was ?approximately six inches? high. [T-90]. He had no direct personal knowledge as to where claimant was positioned on the sidewalk by the correction officer escorting him. After the unloading ended, and while he waited for the officer to put the ramp back in the van so he could pull away to park, he heard a ?commotion.? [T-90; 91]. He saw the officer - Dorsanyo presumably - go toward the front of the van, and saw Officer Forbes approximately ?14 feet away? with the other inmate, then got out of the van himself. [T-91]. When Officer Acken walked around the front of the van, he saw Mr. Carathers face first forward off the end of . . . [the] curb . . . and the wheelchair . . . kind of like laying on him. He was still in the wheelchair.? [T-91-92].

Officer Acken did not complete an inmate injury report, nor did he recognize the inmate injury report that was apparently completed on April 5, 2002, signed by Dr. Koenigsman, and not otherwise signed by the inmate, or any correction officer. [See Exhibit 1]. When asked by defense counsel whether DOCS had a policy regarding the utilization of brakes on wheelchairs he responded: ?Not to my knowledge.? [T-93].

On cross-examination, he agreed that a notation on the bottom of a trip itinerary form to the effect that claimant had fallen out of his wheelchair was made by Officer Acken. [See Exhibit 6]. Officer Acken also indicated that the type of van which was requisitioned for the trip indicates that one of the inmates to be transported would be in a wheelchair. [Id.]. He agreed that he had never had any training in the handling of inmates in wheelchairs during transport. Finally, Officer Acken confirmed that he had no personal knowledge as to whether claimant could reach the brakes of his wheelchair while in restraints and, having not observed the ?incident take place . . . from the driver?s seat? he did not know what caused Mr. Carathers to fall including whether Mr. Carathers himself did anything to cause his fall. [T-111].

The Court notes that the trip itinerary form also contains remarks with regard to the two inmates to be transported, including a notation that the other inmate had been heard discussing escape possibilities in 1997, and that Mr. Carathers had an ?assault on staff? in 2000. [See Exhibit 6].

Officer Forbes had only a ?vague? recollection of his trip as a transport officer to St. Agnes on March 26, 2002. [T-122]. He said that he recalled ?[j]ust that the inmate fell off his wheelchair and that?s about it. Picked him up and - - - that?s it.? [T-122]. Prodded further, he remembered that they had parked ?alongside the sidewalk loading dock area.? [T-123]. He escorted the inmate he was responsible for out of the van first. The ramp was lowered for Mr. Carathers after Officer Forbes had disembarked with his charge. He marked on Exhibit 14-A ?as far as [he could] . . . recall? where he was standing by the van awaiting Mr. Carathers? disembarkment. [T-129]. He did not see anything from the time Mr. Carathers was taken off the van to the time when he fell. He did not see him fall. Although Officer Forbes had himself previously used the emergency entrance that Mr. Carathers indicated was the usual entrance to drop off inmates, the correction officer said it was not the ?normal procedure.? [T-134]. He said the emergency entrance was used if there was a ?major snow storm.?

When asked on cross-examination what alerted him to Mr. Carathers? fall, Officer Forbes reiterated that he did not recall looking at Mr. Carathers, and said: ?I don?t recall. It could have been a yell, a noise, or the other officer might have said something. I don?t - recall.? [T-132]. When asked what the surface was like where the wheelchair was placed, Officer Forbes answered: ?I would say it was fairly level and maybe just a little slope for drainage. Something like that.? [T-132]. He said it was made of ?[c]oncrete, I guess, blacktop. I really don?t recall

. . . ? [T-133]. He could not say that the claimant had done anything himself to cause his fall. He did not recall one way or the other whether Mr. Carathers could reach the brakes on his wheelchair while wearing the restraints he had on that day. Officer Forbes had never had any particular training with regard to the transport of handicapped inmates. Finally, Officer Forbes did not complete an inmate injury report either.

Deputy Lucas, the Deputy Superintendent for Security at Green Haven, testified generally about the use of restraints on inmates transported for outside hospital medical visits. Deputy Lucas described the use of handcuffs and other restraints, saying handcuffs are
?used to restrain an inmate?s arms . . . [and] attach to the wrist area with the small chain in between holding their hands close together.

Leg irons are slightly bigger to fit around the ankles, and . . . have slightly more chain in between to give them room to walk. The leg irons probably have I would say about a 12-inch chain from anklet to anklet so that the inmate can walk in their leg irons.

The black box is designed as a security feature to fit over the handcuff locking mechanism so that during . . . any type of transportation of an inmate, he wouldn?t be able to sit there and try to pick the lock. The black box is a security feature to prevent the inmate from tampering with the locking system on the handcuffs.

* * *
The waist chain goes around . . . the waist, hooks into the black box and limits the inmate?s movement. It doesn?t completely stop him from moving. He?s able to sneeze if he had to, get something out of his pocket, move from side to side, but
. . . the feature for the waist chain is to prevent the inmate from being able to reach up and possibly grab an officer or a hostage or something like that.? [T-65-67].


More specifically with regard to inmates in wheelchairs, Deputy Lucas said that the type of movement an inmate would have sitting in a wheelchair with restraints would not be different from standing while in restraints. He said that an inmate in a wheelchair with handcuffs on could move his arms, within whatever range of motion he had and within the confines of the restraints. Similarly, an inmate in leg irons in a wheelchair could move his legs and feet, could place his feet on the ground, and could push on the ground.

On cross-examination, Deputy Lucas conceded he had no firsthand knowledge of any of the circumstances of this accident, either from personal knowledge or from investigation. When asked, he agreed that the leg mobility in leg irons he described assumed that the inmate was able to move his legs normally. Further, he acknowledged that the chain mechanism to the box at the waist prevents an inmate from raising his arms, and limits lateral movement also.

Claimant and the defendant?s witnesses used the same photograph to describe where the van was parked and the ramp was lowered, where the wheelchair was placed and where claimant was found after his fall. [Exhibit 14].[3] It shows an irregular sidewalk area with different types of paving - concrete, macadam, asphalt - apparently level in some places, but in others clearly sloped downward toward the street level. The area off the curved yellow curb where all witnesses indicated claimant was found after his fall, and where claimant indicated he rolled off the curb, has a pile of snow, obscuring to some degree the actual height of the curb at that point. While the two-foot height attested to by claimant does not appear to be quite accurate, it is also apparent that the pavement slopes down toward the curb, and that it is at least the standard curb height of seven or eight inches above the travel way. Viewing two other photographs at the same location containing a yardstick planted in the snow pile, not discussed by the witnesses but admitted in evidence, something higher than the standard curb height is likely. [See Exhibits 18 and 19].

No other witnesses testified.
DISCUSSION AND CONCLUSION
To establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff?s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. It goes without saying that the State is not the insurer of the safety of inmates under its custody and control, but rather is responsible for injuries that foreseeably result from a breach of the duty to exercise reasonable care under the circumstances.

As reiterated in the inmate-on-inmate assault case of Sanchez v State of New York, 99 NY2d 247 (2002), the inmate-claimant's testimony there that the attack came as a complete surprise to him could not measure the duty of the State, as his custodian, to safeguard and protect him from the harms it should reasonably foresee. The Court of Appeals found that the Appellate Division?s test for foreseeability was too circumscribed, in that it required proof that the State actually knew that the particular victim was a likely assault victim, or that the particular assailant was dangerous, or that the State actually knew that the assault was about to take place and had an opportunity to intervene and protect the victim but failed to do so. The applicable standard of care is reasonable care under the circumstances.

Where the State is a landowner, too, similar considerations obtain. Thus in Preston v State of New York, 59 NY2d 997 (1983) when the State invited the public to swim in a particular location in its lake, it was found liable for injuries suffered by a boy who stepped on a rusty imbedded pipe while wading.[4] The Court said:
?Under the circumstances, the State had a duty either to inspect and remove hazards from the water or to give warnings that the waters were used at the swimmer?s risk. This does not require the State to scrutinize every square foot of riverbed and lakebottom that it owns. Mere ownership does not give rise to the duty, but inviting the public to swim there does. Obviously, an individual who bathes in a State lake in a primitive area of the Adirondacks cannot expect the State to have ?sanitized? the area for safe public use. Also, in areas where the public has been invited to swim, this does not make the State an insurer, liable for every injury no matter the nature of the hazard or how long it has been in place. There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered by the State . . . (citation omitted).? Preston v State of New York, supra at 998-999.


In this case, the duty of care owed to claimant, an individual being transported in restraints inhibiting to one degree or another movement of his arms, hands and feet, with already limited movement because of handicaps placing him in a wheelchair in the first place, is clear. At a minimum, when the wheelchair is resting on an uneven, sloped surface, and the person in charge of moving the inmate removes himself from the immediate area of the chair, the brakes should be set on the wheelchair to prevent its movement. Indeed, if the person escorting the wheelchair-bound mechanically restrained individual removes himself from the immediate area of the chair, as did Officer Dorsanyo, due care would include setting the brake whatever the surface slope may be. This is common sense.

The only witness with direct testimony as to where claimant was placed on the pavement is claimant himself. Claimant testified without contradiction by anyone with actual knowledge - as opposed to the very general comments by Deputy Lucas - that the restraints prevented him from reaching his wheelchair brakes with his arms and hands, and prevented the movement of the foot that was capable of movement. Given the notation on the transport form [see Exhibit 6], restraining an inmate such as claimant, known for assaulting officers, would be a priority. Claimant testified he was left on a sloped sidewalk in his wheelchair without the brakes having been applied. The correction officers who did testify - and the one who actually was in charge of claimant, Officer Dorsanyo, did not - either were not physically in a position to see (Officer Acken) or were apparently looking elsewhere (Officer Forbes) when the wheelchair was moved to a location on the walk, and when it started to move. Claimant testified that where his wheelchair was placed by Officer Dorsanyo was uneven. Claimant testified without contradiction that the brakes to his wheelchair were not set. That he could ?feel? that the surface was uneven is credited, as is the suggestion that in restraints, as he was, he was unable to halt the motion of his chair once it was in motion.

It is not ?speculation,? as suggested by defendant, to infer that a failure to set the brakes on a wheelchair bearing a heavyset man at rest on an uneven - even a slightly uneven surface clearly visible in the photographic evidence and as attested to by all witnesses - would cause the slightest shift in weight to cause the chair to roll, or spin - even to the 90 degrees or so claimant testified to. Cf. Beavers v Hanafin, 88 AD2d 683, 684 (3d Dept 1982)[5]; Smith v Wisch, 77 AD2d 619, 620 (2d Dept 1980), lv denied 51 NY2d 709 (1980).[6] The two correction officers who were present saw nothing of relevance. Between claimant?s direct disembarkment from the van, and his being found on the ground, there is no evidence but that presented by claimant. The correction officers assumed he was placed at a particular location because the lowered ramp occupied a given length when open, but neither officer did other than guess as to where claimant was ultimately placed by Officer Dorsanyo. They did not see him move, roll, or fall. The fact that they did not act themselves to prevent his rolling or falling further suggests that they were not in a position to see.

Significantly, resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts.

To question claimant as to whether he was rocking his chair prior to its movement, and then to receive a negative answer, does not establish the point. It is simply not credible that an already handicapped individual would choose to jeopardize his health and safety by attempting to move his chair in the manner suggested by defendant. See e.g. Timmons v State of New York, Claim no. 94084, unreported Decision and Order (filed Feb. 18, 1999, Silverman, J.).[7]

The fact that claimant?s grievance summarizes the incident by saying he fell off the ramp, as opposed to the more expansive description given in the written claim and during testimony at trial, does not create a meaningful inconsistency. Indeed, other than asking claimant whether his grievance mentioned departures from due care by the correction officers escorting him, the matter was not probed further.

In the same vein, whether the blue dumpster was present on that day or not - and it is noted that Officer Acken did not know and Officer Forbes was not asked - claimant?s reference to the dumpster as a tool to describe where his wheelchair was placed by Officer Dorsanyo, and where he fell, does not lead to the conclusion suggested by defendant that claimant?s testimony placed him as falling against the blue dumpster. Read in context, claimant?s testimony as to the location of his fall places him as falling in the same location as where the officers say they found him.

In contrast, the correction officers presented could only testify from their limited viewpoints. Officer Acken, as noted, did not see anything until after claimant was on the ground. Officer Forbes - puzzlingly, if indeed he was standing where he said he was - did not observe anything of note until claimant was on the ground as well. The escorting officer did not testify. Claimant?s testimony was uncontradicted on the essential points establishing his cause of action in negligence.

After carefully considering the evidence presented, the Court finds that claimant has established that the State of New York through its agents failed to exercise proper care in the performance of the duty owed to this claimant to properly set the brakes on his wheelchair or to remain near him so as to prevent the chair?s movement, that the breach of this duty was a proximate cause of his injury, and that the injury was entirely foreseeable under the circumstances by a person of ordinary prudence.

Since the Court finds that the defendant breached its duty of care, the Court must consider whether claimant contributed to his own injuries. Claimant?s testimony regarding his own conduct is uncontradicted as well. He could not set the brake, he could not move when shackled in the fashion described, and his arm movements were limited as well. He was placed by someone else in a location not under his control, and there was no credible showing that claimant did anything to trigger the movement of a wheelchair that should have been set with a brake in the first place. Once the wheelchair was moving, given his restraints, there was nothing he could do. The Court finds that claimant did not contribute to his own injuries.

Accordingly, the Court finds the State 100% liable for the injuries to this claimant. The Clerk is directed to enter an interlocutory judgment. Trial on the issue of damages shall be held as soon as is practicable.

October 22, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims