New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2000-009-001, Claim No. 96817


Synopsis


Claimants brought an action seeking recovery for personal injuries suffered in a one-car accident on the NYS Thruway. The driver (one of the claimants) of their vehicle lost control when he was passed on the right-hand side by a NYS Trooper involved in a high speed pursuit. The Court, citing the cases of Saarine v Kerr, 84 NY2d 494, and Szczerbiak v Pilat, 90 NY2d 553, determined that the "reckless conduct" standard of Vehicle and Traffic Law § 1104 was applicable and that claimants did not establish such conduct. The claim was dismissed.

Case Information

UID:
2000-009-001
Claimant(s):
GEORGE EDWARDS and DOROTHY EDWARDS The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
EDWARDS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96817
Motion number(s):

Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
S. ROBERT WILLIAMS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney GeneralBY: Edward F. McArdle, Esq., Assistant Attorney General, of Counsel.
Third-party defendant's attorney:

Signature date:
June 27, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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"[1]
. 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' vehicle.

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 § 1104[e]).

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 Kerr, 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, supra at 503).
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
Saarinen and Szczerbiak, supra.
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.


June 27, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims



[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.