On June 21, 2000, the following papers were read on Claimant's motion for
1. Notice of Motion
2. Affidavit of Daniel Quackenbush in Support
3. Affirmation of August J. Nordone, Esq., in Support
4. Memorandum of Law in Support of Motion
5. Affirmation of Edward F. McArdle, Esq., in Opposition
6. Affidavit of Larry E. Hasard in Opposition;
7. Memorandum of Law in Opposition
8. Reply Affirmation of August J. Nordone, Esq.
Claimant alleges that he sustained serious injuries when a street sweeper being
driven by an employee of the New York State Department of Transportation crossed
over a solid double yellow line and struck the pickup truck he was driving. At
the time of the accident, the street sweeper was not cleaning streets; rather,
it was traveling between two work sites.
I am asked in the instant motion to determine whether the street sweeper was
"actually engaged in work on a highway" within the meaning of Section 1103(b) of
the Vehicle and Traffic Law. If I conclude that Section 1103(b) applies, then
Claimant may prevail only if he proves that the operator of the street sweeper
was acting with "reckless disregard for the safety of others" (see,
Vehicle and Traffic Law §1103[b]; Wilson v State of New
York, 269 AD2d 854, lv granted 95 NY2d 752). On the other
hand, if Section 1103(b) does not apply, then Claimant may prevail by showing
that the street sweeper driver acted negligently.
The facts are not in dispute. On September 30, 1996, Claimant was driving west
on Van Buren Road in the Town of Van Buren, Onondaga County. As he was
traversing the bridge that carries Van Buren Road over Interstate 690, he
observed a street sweeper traveling in the opposite direction over the bridge
at approximately 40 miles per hour. He says that he saw the street sweeper
fishtail, cross the double line and veer into his lane of travel. He slowed
down and pulled his vehicle as far as possible to the right curb.
Unfortunately, Claimant's efforts to avoid the collision were not successful.
The street sweeper struck and sideswiped his truck, propelling it sideways into
the overpass guardrail.
Defendant's driver corroborates Claimant's description of the accident and
provides additional details about the circumstances that precipitated it. He
was taking the street sweeper from a cleanup job in the Syracuse area to an
assignment in Mexico, New York. He lost control when a motorist stopped short
in front of him to turn onto Interstate 690. To avoid a collision with that
vehicle, he strongly applied his brakes. This caused the water in the
nearly-full 300 gallon tank to slosh forward. The resulting force disabled the
sweeper's brakes and sent it fishtailing across the double yellow line into
Section 1103(b) is an idiosyncratic and confusing statute. It serves two
purposes. First, it exempts certain vehicles from parts of the Vehicle and
Traffic Law in particular circumstances. "[P]ersons, teams, motor vehicles, and
other equipment while actually engaged in work on a highway" are broadly
exempted from most of the rules of the road found in Title VII. "[H]azard
vehicles while actually engaged in hazardous operation on or adjacent to a
highway" are more narrowly exempted from the rules regulating stopping, standing
or parking (see, Vehicle and Traffic Law §1202[a]).
Section 1103(b) also limits the circumstances in which a defendant can be held
liable for accidents caused by its improper operation of a subject
The language quoted could certainly be interpreted in several ways. However,
the Court of Appeals has determined that a very similar passage found in Section
1104 of the Vehicle and Traffic Law shields operators of authorized emergency
vehicles from liability, except when they act with reckless disregard for the
safety of others (see, Saarinen v Kerr, 84 NY2d 494;
Campbell v City of Elmira, 84 NY2d 505; Szczerbiak v Pilat, 90
NY2d 553; Cottingham v State of New York, 182 Misc 2d 928, 934).
Therefore, the Courts have given a like interpretation to the second sentence of
Section 1103[b] (see, Cottingham v State of New York,
supra, at 933-935).
Certain aspects of Section 1103(b) render its scope unclear. The class of
vehicles entitled to the first exemption seems to overlap with the class of
vehicles entitled to the second exemption. This is because the term "hazard
vehicles" is defined elsewhere in the Vehicle and Traffic Law to include, among
other things, "every vehicle engaged in highway maintenance" (Vehicle and
Traffic Law §117-a). Thus, it is not apparent whether vehicles that
satisfy the linguistic parameters of both exemptions should be entitled to the
broader first exemption or to the narrower second one (see, e.g.,
Wilson v State of New York, Ct Cl, Sept. 30, 1998 [Claim No. 93508],
McNamara, J., affd 269 AD2d 854, lv granted 95 NY2d
752; McDonald v State of New York, 176 Misc 2d 130, 133-139).
Another difficulty stems from the second sentence of Section 1103(b) which sets
forth "reckless disregard" as the standard of tort liability. It expressly
applies where the claimant seeks to prove a case against "such persons or teams,
or such operators of motor vehicles or other equipment" that are actually
engaged in work on a highway. However, it does not mention "hazard vehicles."
It is therefore unclear whether the reckless disregard standard is intended to
apply to "hazard vehicles" (see, McDonald v State of New
York, supra at 137).
The implications of Section 1103(b)'s phraseology have divided the courts.
After conducting a scholarly review of its legislative history, Judge Bell
concluded that the broader exemption from the rules of the road and the reckless
disregard standard applied only within specific well-defined work areas or work
zones, and not to roaming work vehicles (Cottingham v State of New York,
182 Misc 2d 928, supra; see also, Gawelko
v State of New York, Ct Cl, April 27, 2000 [Claim No. 95731, Motion No.
M-59239], Corbett, J. [supporting Judge Bell's interpretation]; Somersall v
New York Telephone Co., 74 AD2d 302, revd on other grounds 52
NY2d 157 [offering a consistent interpretation]). The Third Department and
Judge Collins reached a different interpretation after conducting their own
extensive and erudite analyses of the legislative history. They concluded that
the broad exemption from the rules of the road and the reckless disregard
standard applied to any vehicle "actually engaged in work on a highway," whether
or not the vehicle could also be classed as a "hazard vehicle" (Riley v
County of Broome, 263 AD2d 267, lv granted 95
NY2d 751; McDonald v State of New York, 176 Misc 2d 130,
supra; accord, Wilson v State of New York, Ct
Cl, Sept. 30, 1998 [Claim No. 93508], McNamara, J., supra;
Hazzard v State of New York, Ct Cl, April 18, 2000 [Claim No. 99182,
Motion No. M-60896], Fitzpatrick, J.; Gifford v State of New York, Ct Cl,
April 6, 1999 [Claim No. 95815, Motion No. M-58452], Midey, J.; Nelsen v
State of New York, Ct Cl, June 24, 1999 [Claim No. 95629], Benza, J.).
The Fourth Department weighed in on this controversy in Wilson v State of
New York, 269 AD2d 854, supra). Relying upon the Third
Department decision in Riley and Judge Collins' decision in
McDonald, the Court held that a State owned snowplow was a "vehicle...
actually engaged in work on a highway" when it collided with the claimant's
vehicle. It then affirmed Judge McNamara's use of the reckless disregard
standard to evaluate the State's liability to the claimant.
The Wilson decision suggests that the Fourth Department would apply both
the reckless disregard standard and the broader exemption from the rules of the
road to any vehicle actually engaged in work on a highway, even if that vehicle,
like the snowplow in Wilson, could also fit the definition of a hazard
vehicle. Indeed, Judges Corbett and Fitzpatrick have already interpreted
Wilson in this manner (see, Hazzard v State of New
York, Ct Cl, April 18, 2000 [Claim No. 99182, Motion No. M-60896],
Fitzpatrick, J., supra; Gawelko v State of New York, Ct Cl,
April 27, 2000 [Claim No. 95731, Motion No. M-59239], Corbett, J,
supra). I agree with their interpretations of Wilson and
now turn to the task of applying the Wilson holding to the facts
Claimant argues that the reckless disregard standard is inapplicable here
because (1) Defendant failed to plead it as an affirmative defense; and (2)
driving the sweeper from one job site to another was not "actually engag[ing] in
work on a highway" (see, Vehicle and Traffic Law §1103[b]).
Defendant responds: that Section 1103(b) need not be pled as an affirmative
defense; that the actual work requirement is broad enough to include driving
from one job to another; and, that certain characteristics of a street sweeper
make driving from one place to another a "hazardous operation."
, the Fourth Department squarely rejected the argument that
Vehicle and Traffic Law §1103 had to be pled as an affirmative defense
(Wilson v State of New York
, Ct Cl, Sept. 30, 1998, [Claim No. 93508],
McNamara, J., supra
; McDonald v State of New York
, 176 Misc
2d 130, supra
). Claimant acknowledges the Wilson
and has not pointed to any circumstance that would render this case
distinguishable. Therefore, Claimant's first argument is
Claimant's second argument is more compelling. To qualify for an exemption
from the rules of the road, a vehicle must be "actually engaged in work on a
highway" (Vehicle and Traffic Law §1103[b]). In determining the meaning of
that phrase, I must give each word a distinct and separate meaning and reject
any construction that would render any words superfluous (Statutes §231).
The word "engaged" means to be "involved in activity" or "occupied" (Merriam
Webster's Collegiate Dictionary, 10th ed.). If it appeared by itself within
Section 1103[b], it could be read narrowly to apply only to the doing of "work
on the highway." Alternatively, it could be read broadly to include the time
period of and activities leading up to the performance of the work. The
addition of the adverb "actually" to modify the verb "engaged" resolves this
potential ambiguity. "Actually" means "in act or in fact" or "really" (Merriam
Webster's Collegiate Dictionary, 10th ed.). The phrase "actually engaged"
therefore suggests that the "work" on the highway is "in fact" taking place at
the time of the incident and that the vehicle is directly "involved in" the
This construction is supported by the legislative history of Section 1103[b].
According to Judge Collins, a legislative report which accompanied one of the
earliest versions of Section 1103[b] stated that the exemption from Title VII
"refers to those who build highways, repair or maintain them... [b]ut the title
does apply to such persons and vehicles when they are traveling to or from such
work" (McDonald v State of New York, supra, 176 Misc 2d, at
135). Changes that were made both before and after the statute was enacted in
1957 made this point less apparent from the text of Section 1103[b] itself.
However, there is nothing in the legislative history that suggests that the
Legislature made these changes to expand the exemption to include travel to and
from the work site or other peripheral activity.
Only two of the cases relied upon by the parties expressly considered whether a
vehicle was "actually engaged in work on a highway" at the time of an accident.
These are consistent with my interpretation. In Petosa v City of New
York (52 AD2d 919), the Second Department concluded that the City could not
rely upon Section 1103[b] as a defense where a sanitation supervisor parked his
car on the right side of an expressway to give directions to a snowplow operator
working on the opposite side of the roadway. The Second Department reasoned
that the exemption was inapplicable because it was intended "to cover people
actually engaged in work which requires them to be parked on traveled portions
of the highway" (Petosa v City of New York, supra, at
In McDonald, the claimants alleged that the snowplow with which the
Claimant collided was not "actually engaged in work on a highway at the time of
the collision as it was in the process of 'traveling to or from such hazardous
operation...'"(McDonald v State of New York, supra, 176
Misc 2d, at 141). Judge Collins rejected this argument, finding that the
snowplow operator "was not traveling to or from a hazardous operation at the
time of the collision." Rather, she had reached the southernmost boundary of
her Interstate 81 plowing "beat" and was negotiating a U-turn across the median
so that she could plow the northbound side of the highway.
I agree with Judge Collins that there was an adequate nexus shown in
McDonald between the snowplow's U-turn across the median of Interstate 81
and its completion of ongoing snow plowing activity. I do not believe, however,
that a sufficient nexus exists in this case. The sweeper was not cleaning the
road or even preparing to clean the road at the time of the accident. It had
not performed, nor was it going to perform any work in the vicinity of the
accident. Its next work site in Mexico, New York, was about 25 miles away from
the place of the accident. Moreover, the sweeper did not deviate from the rules
of the road to facilitate any road work. Rather, it crossed the double yellow
line and entered Claimant's lane of traffic because its operator lost control.
Thus, the street sweeper was not "actually engaged in work on a highway" when it
struck Claimant's truck.
The status of the street sweeper here is thus distinguishable from the status
of the road maintenance vehicles in each of the cases relied upon by Defendant.
In Wilson, the snowplow that collided with the claimant's car was
turning, with the wing plow down, from a road it had just finished plowing onto
a road it was going to plow next. In Hazzard, Judge Fitzpatrick noted
that "the accident occurred while the defendant's employee was spot salting and
sanding the roads." Judge Midey's decision in Gifford similarly
indicates that the snowplow operator was "plowing the northbound lane of Route
48" immediately before the accident and had crossed into the claimant's lane
because the road narrowed as it passed over a "landbridge." Although the plow
operator was lifting the plow when the collision occurred, this was clearly an
accident avoidance maneuver.
Defendant also argues that the sweeper qualifies for the exemption available to
"hazard vehicles" because driving a street sweeper with a partially loaded water
tank is, in and of itself, a hazardous operation. This argument fails for two
reasons. First, it would do violence to that part of Section 1103(b) that
states that hazard vehicles are not entitled to an exemption when they are
"traveling to or from such hazardous operation." Second, a hazard vehicle must
be "actually engaged in a hazardous operation" to qualify for the hazard vehicle
exemption. Though a "hazardous operation" does not necessarily entail work on
the highway itself, the activity must "restrict, impede or interfere with the
normal flow of traffic" (see, Vehicle and Traffic Law §117-b;
Somersall v New York Telephone Co., supra, 74 AD2d, at
308). Here, it was the driver's loss of control, not the sweeper's operation,
that disrupted the "normal flow of traffic" (compare,
Since neither exemption applies to Defendant's street sweeper, Defendant may be
held liable for the ordinary negligence of its street sweeper operator
(see, Riley v County of Broome
AD2d, at 273 [holding that the reckless disregard standard applied because the
operation of the street sweeper constituted highway maintenance]; (McDonald v
State of New York
176 Misc 2d, at 133 [reckless
disregard standard applies only if plow was exempt from complying with the rules
of the road]; cf., Saarinen v Kerr
NY2d, at 497 ["§1104(e) precludes the imposition of liability for
conduct except where the conduct rises to the level
of recklessness"] [emphasis added]).
I now consider whether Claimant is entitled to partial summary judgment on the
issue of liability. I conclude that he is. The sweeper driver acknowledged in
his deposition that he was following so closely behind the other vehicle that
when it stopped in front of him, he thought he was going to hit it. Applying
the brakes strongly -- the accident avoidance maneuver he felt he had to take to
avoid a collision -- caused the water to slosh forward, the brakes to fail and
the sweeper to careen out of control toward Claimant's truck. In other words,
the inadequate following distance left by the sweeper operator was the first
link in the chain of events that brought about the accident.
Vehicle and Traffic Law §1129(a) provides that "[t]he driver of a motor
vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such vehicles and the traffic upon
and the condition of the highway." Failing to maintain an adequate following
distance, in the absence of an adequate explanation, constitutes negligence as a
matter of law (Aromando v City of New York, 202 AD2d 617; Zakutny v
Gomez, 258 AD2d 521; Marlow v Bd. of Education of Ogdensburg City School
Dist., 182 AD2d 889, 890). This is so even if a sudden unexpected stop by
the leading vehicle makes it impossible for the trailing vehicle to stop safely
(Johnson v Phillips, 261 AD2d 269, 271; Mascitti v Greene, 250
AD2d 821, 822; Bando-Twomey v Richheimer, 229 AD2d 554, 555). Moreover,
liability may attach for a violation of Section 1129(a) even if the resulting
collision is not between the leading vehicle and the following one (Darmento
v Pacific Molasses Co., 81 NY2d 985).
Defendant does not dispute that its sweeper was driving too close to the car it
was following. Indeed, it has submitted the affidavit of a Supervising Bridge
Engineer which shows that the weight and positioning of the water tank makes a
sweeper more difficult to stop than other vehicles and that stopping a
water-bearing sweeper suddenly can cause it to react unpredictably. This
evidence only underscores the gravity of the risk Defendant's sweeper driver
took when he followed too closely behind another vehicle.
Defendant has articulated two factual issues that it believes require a trial:
whether the sweeper operator took reasonable actions to avoid a collision with
another automobile; and, whether the sweeper handled differently because it was
carrying water for sweeping. I conclude that these issues do not raise a
material issue of fact.
First, there is no question that the sweeper behaved differently because it was
full. The operator's deposition and the affidavit of the Supervising Bridge
Engineer established this. Rather that absolving Defendant from negligence,
however, this circumstance merely obliged the sweeper operator to adapt his
driving technique. Second, a finding that the sweeper operator acted
reasonably in trying to stop the sweeper to avoid a collision would not change
the fact that the emergency itself was caused by his failure to maintain an
adequate following distance.
For the reasons stated above, Claimant is granted partial summary judgment on
the issue of negligence. A trial will be scheduled as soon as practicable to
determine whether Claimant has suffered an injury that is compensable under the
Insurance Law and, if so, to ascertain the extent of his damages
(see, Insurance Law §5104).