Claimants George Edwards and Dorothy Edwards suffered injuries as a result of a
motor vehicle accident occurring on the New York State Thruway (Interstate Route
90) on August 30, 1996. The trial of this claim was bifurcated and this
decision addresses liability only, if any, of the defendant State of New York.
Mr. Edwards testified that he and his wife, claimant Dorothy Edwards, were
traveling on the Thruway on August 30, 1996 in a westbound direction. Mr.
Edwards was a gentlemen in his early 80's who claims to have possessed good
vision while wearing corrective lenses, but that his hearing was "a little on
the poor side"
. He had a hearing aid, and was using it at the time of the accident. He
indicated that when wearing the hearing aid his hearing was "good". Claimants
were towing an 18 foot long trailer which was 12 feet in height. He admitted
that the trailer obstructed his view of vehicles behind him to a certain degree,
but that there were extended mirrors attached to his automobile which were used
when towing the trailer. At the time of the accident, claimants were traveling
in the left-hand passing lane and Mr. Edwards was operating his vehicle at a
speed between 50 and 55 miles per hour.
A New York State Trooper, Derrick C. Harling, testified that he was driving
east on the Thruway in a marked New York State Police vehicle that day when he
noticed a speeding vehicle traveling in the westbound direction. The trooper
indicated that he estimated the speed of this vehicle to be approximately 90
miles per hour. Due to the speed of the vehicle and the fact that Trooper
Harling was traveling in the opposite direction, it was impossible for him to
make a positive identification of the vehicle or its license plate. Trooper
Harling determined that this was a potentially dangerous, emergency situation,
and acting upon that determination he decided to pursue the speeding vehicle.
To do so he had to change directions on the Thruway and accelerate to a high
speed proceeding westbound in pursuit of the vehicle. He testified that he
activated his overhead lights and siren. He proceeded in the westbound passing
(left-hand) lane at a high rate of speed, and acknowledged that his speed
exceeded 90 miles per hour. As the officer approached westbound vehicles in
the passing lane, they moved over to the right-hand lane upon seeing or hearing
his vehicle. At this time, claimants' vehicle, as stated above, was traveling
in the left-hand passing lane, and as the trooper's vehicle approached their
vehicle, Mr. Edwards did not move to the right-hand lane to allow the trooper to
pass. Trooper Harling testified that he waited momentarily behind the
claimants' vehicle and that in addition to the siren and overhead lights which
were in operation, he utilized his horn in an attempt to attract their attention
so that they would clear the passing lane, thereby enabling him to continue his
pursuit. Mr. Edwards, however, remained in the left-hand lane. Trooper Harling
then elected to pass the claimants' vehicle in the right-hand traveling lane.
The trooper successfully passed the claimants' vehicle, but immediately
thereafter, Mr. Edwards attempted to pull over into the right-hand lane. At
that point, he apparently became aware of the trooper's vehicle for the first
time, and then immediately attempted to turn his vehicle back into the left-hand
lane. Mr. Edwards apparently over compensated, the trailer began to fishtail,
and he lost control of his vehicle. He drove through the left-hand lane and
onto the center grass median which divides the eastbound and westbound travel
lanes. Claimants' vehicle rolled over twice and then came to a stop.
At no time was there any physical contact between the trooper's vehicle and
Claimants assert that the State should be liable for this accident by reason of
the negligent and/or reckless conduct of the New York State Trooper. Initially,
claimants take the position that no emergency situation existed which would
provide the State with qualified immunity in its operation of authorized
emergency vehicles under Vehicle and Traffic Law § 1104. If there was no
emergency situation, § 1104 would not apply, and the conduct of Trooper
Harling would be held to a negligence standard. Even if § 1104 applies,
claimants further assert that the trooper's actions were reckless and without
due regard for the safety of others.
Vehicle and Traffic Law § 1104 provides a driver of an authorized
emergency vehicle qualified immunity from civil liability when he or she is
operating the vehicle in an emergency situation. This privilege, however, is
not absolute, and it "shall not relieve the driver of an authorized emergency
vehicle from the duty to drive with due regard for the safety of all persons,
nor shall such provisions protect the driver from the consequences of his
reckless disregard for the safety of others." (Vehicle and Traffic Law §
There is no dispute that Trooper Harling was operating an "emergency vehicle"
at the time of this accident. Claimants assert, however, that an emergency
situation did not exist. In support of this position, claimants point to the
deposition transcript of an eyewitness to the accident, Norbert Kogutkiewicz.
In his deposition (see Exhibit A), Mr. Kogutkiewicz, a truck driver who was
heading east on the Thruway and witnessed the accident, stated that he did not
see any speeding vehicle proceeding in a westerly direction immediately prior to
the accident. Similarly, Mr. Edwards testified that he also had not observed
any such speeding vehicle. If Trooper Harling was not in active pursuit of a
speeding vehicle, claimants argue that no emergency situation existed, and the
negligence standard, rather than the standard of reckless conduct, should apply
to Trooper Harling's actions.
The Court, however, credits the testimony of Trooper Harling and finds that he
was in active pursuit of a speeding vehicle at the time of this accident. Mr.
Kogutkiewicz, the truck driver, had just recently entered the Thruway, and there
is a strong probability that the speeding vehicle may have already passed him
prior to his entrance on the Thruway. Furthermore, Trooper Harling testified
that he had activated his overhead lights and siren, another indication that the
trooper was in active pursuit. Mr. Kogutkiewicz corroborated the fact that the
overhead lights were in operation on Trooper Harling's vehicle as it approached
the Edwards' automobile.
Based on this finding, the Court must consider the actions of Trooper Harling,
in passing claimants' vehicle on the right, under the "reckless disregard"
standard of Vehicle and Traffic Law § 1104. This standard has been defined
as "the conscious or intentional doing of an act of an unreasonable character in
disregard of a known or obvious risk so great as to make it highly probable that
harm would follow, and done with conscious indifference to the outcome."
Szczerbiak v Pilat
, 90 NY2d 553, at 557; see also, Saarinen v
, 84 NY2d 494).
The purpose of such a standard is to permit operators of emergency vehicles to
perform their duties and "to use whatever means are necessary, short of the
proscribed recklessness, to overtake and stop the offending driver." (
Saarinen v Kerr
In this case, the Court has found that Trooper Harling was certainly justified
in pursuing the speeding vehicle on the Thruway, thus creating an emergency
situation. Having observed the speeding vehicle, Trooper Harling was bound to
pursue the vehicle, and he would have been remiss in his duties had he failed to
do so. Testimony established that other vehicles traveling westbound in the
left-hand passing lane had yielded the right-of-way to Trooper Harling, as they
properly and timely reacted to his approaching vehicle. When Mr. Edwards
remained in the passing lane and did not yield, Trooper Harling made a decision
to pass his vehicle on the right, in order to continue his pursuit. The Court
finds that such actions do not even remotely approach the "reckless disregard"
standard defined in
At trial, claimants established that Trooper Harling had failed to notify his
radio control point of his pursuit situation, in direct violation of the New
York State Police Field Manual (see Exhibit 14). The Manual requires an officer
in pursuit to keep the control point informed of such information as location,
direction of travel, description of the pursued vehicle, and reason for the
pursuit. (See Exhibit 14, NYSP Field Manual, Article 30, page 12).
Claimants assert that Trooper Harling's failure to follow the procedures
mandated by the Manual, coupled with his actions while pursuing the speeding
vehicle, amounted to reckless conduct. The trooper's failure to follow
departmental regulations in this instance, however, cannot in any way be
considered as the proximate cause of this accident (
Mitchell v State of New York
, 108 AD2d 1033), and even when considered
within the context of his actions, is insufficient to establish a reckless
disregard for the safety of others.
The Court determines that the trooper observed a dangerous situation and took
appropriate action. Contrary to claimants' position, the Court concludes that
the sole proximate cause of this accident was Mr. Edwards' operation of his
vehicle, and not the manner in which the trooper conducted the pursuit.
Accordingly, this claim must fail as it did not satisfy the appropriate burden
of proof to establish liability. Based upon all of the credible evidence, the
claim of George Edwards and Dorothy Edwards is hereby DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.