New York State Court of Claims

New York State Court of Claims

SWIERCZ v. THE NEW YORK STATE THRUWAY AUTH., #2000-015-515, Claim No. 97301


The reckless disregard standard of conduct set forth in Vehicle and Traffic Law § 1103 applies to a snowplow operator who strikes a stranded vehicle on the shoulder of the road during the course of a snow storm when the salt spreader upon the snowplow is engaged at the time of impact.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Since the acts of negligence alleged in the claim relate to the maintenance and operation of the New York State Thruway the claim is dismissed, sua sponte, against the State of New York.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Allen Johnson & Lonergan, LLPBy: Michael J. Lonergan, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Vincent M. Cascio, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 21, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim was bifurcated and this decision addresses the liability issue

Interstate Route 84 is an east/west highway traversing Putnam County from the Newburgh Beacon Bridge to the Connecticut border. There are two lanes of travel in each direction with the right hand lane referred to in this decision as the driving lane and the left hand lane as the passing lane. Route 84 is patrolled by the New York State Police and maintained by the New York State Thruway Authority (Thruway Authority). During the course of the day on February 16, 1996, a snowstorm was in progress that eventually deposited almost ten inches of snow in the accident vicinity. At approximately 4:40 p.m. on February 16, 1996, the claimant[1]
was operating his tractor trailer in an easterly direction in the travel lane of Route 84 approximately 10 miles west of the New York/Connecticut border at eastbound milepost 56.9 in the Town of Kent, New York when an automobile attempted to pass the tractor trailer in the passing lane. The automobile began to spin, moved to the right and struck the passenger side front of the claimant's tractor trailer. Both vehicles pulled to the southern shoulder of the highway. Thereafter, Timothy Sims, a Thruway Authority Section Maintenance Supervisor assigned to the Fishkill office came upon the accident scene in the course of patrolling Route 84. Mr. Sims drove his vehicle onto the shoulder of the road to the rear of the tractor trailer and went to render assistance. He observed damage to the passenger side front bumper of the tractor trailer and attempted but was unable to contact the New York State Police due to excessive radio traffic. Mr. Sims advised both drivers to exchange the required vehicle and driver information and to leave the scene as soon as possible.
While claimant and the automobile operator were seated in the cab of the tractor trailer exchanging information a Thruway Authority snowplow operated by Adalberto Rosado arrived in the area while in the course of performing plowing and salting duties. Mr. Rosado attempted to pull the snowplow to the shoulder of the highway in front of the tractor trailer in order to inquire as to whether assistance was necessary. In the course of so doing, the claimant alleges that a portion of the snowplow struck the driver's side of the tractor trailer. This claim to recover for personal injuries and property damage was filed with the Clerk of the Court on November 7, 1997 and seeks to recover upon allegations of negligent conduct on the part of the snowplow operator. The claim was assigned to Judge Terry Jane Ruderman who, in a decision and order filed on May 12, 1999, denied the motion of the Thruway Authority for summary judgment dismissing the claim upon the argument that the snowplow operator's conduct did not constitute a "reckless disregard for the safety of others" as set forth in Vehicle and Traffic Law § 1103(b). Judge Ruderman determined that there was a question of fact as to whether the snowplow operator was "actually engaged in work on a highway" at the time of the incident, but did permit the Thruway Authority to serve an amended answer asserting the reckless disregard standard of care as an affirmative defense and the claim proceeded to trial. A review of the claim and claimants' bill of particulars establishes that neither document contains allegations of reckless conduct on the part of the Thruway Authority or Mr. Rosado. At the close of the evidence the defendant moved to dismiss the claim for failure to establish a prima facie case upon the issue of recklessness with regard to the conduct of the snowplow operator. Decision was reserved and that motion will now be addressed.

The Appellate Divisions of the Third Department (
Riley v County of Broome, 263 AD2d 267) and Fourth Department (Wilson v State of New York, ____ AD2d ____, 703 NYS2d 848) have held that the "reckless disregard for the safety of others" standard of Vehicle and Traffic Law § 1103 (b) applies to State or municipal vehicles actually engaged in highway maintenance work. In Wilson the Fourth Department held that Vehicle and Traffic Law § 1103 need not be pleaded as an affirmative defense to be available to the defendant. In the case of McDonald v State of New York, 176 Misc 2d 130, this Court held that a snowplow operator who was attempting a U-turn while halfway through her plowing "beat" was actually performing snow removal and was thus engaged in work upon a highway even though the snowplow operator was not actually plowing at the time that the impact occurred. When a claimant has neither alleged nor offered proof that a snowplow operator acted with reckless disregard a motion to dismiss the claim as a matter of law should be granted (Gawelko v State of New York, ____ Misc 2d ____, 2000 WL 943750). In the case of Szczerbiak v Pilat, 90 NY2d 553, 556, 557, the Court of Appeals set forth its interpretation of the "reckless disregard" standard of liability as follows:
This 'reckless disregard' standard of liability was interpreted and applied by this Court in the companion decisions of Campbell v City of Elmira, 84 NY2d 505, 620 NYS2d 302, 644 N.E.2d 993 and Saarinen v Kerr, 84 NY2d 494, 620 NYS2d 297, 644 N.E.2d 988, supra. In Saarinen, we equated 'reckless disregard' with the well-established tort concept of recklessness, which we 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.
The first witness to testify on claimants' behalf was Richard Fish, a Thruway Authority employee for over twenty-five years who was employed as a Maintenance Supervisor II in the Authority's Fishkill office at the time of the accident. Mr. Fish was the highest ranking supervisor in the Fishkill section and his duties included overseeing maintenance of Route 84 from the Newburgh Beacon Bridge to the Connecticut State line. For snow removal purposes, the East Fishkill section was divided into eight plowing routes or sections. Routes 1 through 4 covered plowing of the primary driving lanes on Route 84 while the remaining routes covered ramps, passing lanes and exits. Mr. Fish testified that claimant's accident occurred within the plow route designated as section 3. The snowplows used by the Thruway Authority in the Fishkill section were five to seven ton dump trucks equipped with salt and sand spreaders and front and side plows. Snowplow operators were trained through formal classroom sessions as well as on the job experience under the supervision of more senior employees.

Mr. Fish testified that he interviewed Mr. Rosado and recommended him for employment with the Thruway Authority. Rosado's title was Temporary Construction Equipment Operator and as a non-permanent employee he did not come with any of the job descriptions of light or heavy equipment operator as set forth in claimants' Exhibit 1. The Court received into evidence as Exhibit 3 Mr. Rosado's monthly training record with the Thruway Authority which disclosed that his supervised training began on December 18, 1995 and ended on April 8, 1996. In the course of that time, Mr. Rosado was trained in maintenance, compressor operation and snowplow operation. According to the witness, Exhibit 3 disclosed that Mr. Rosado had operated a snowplow without supervision on three occasions prior to February 16, 1996. The same Exhibit sets forth that, in addition to the classroom training, Mr. Rosado had received thirty-seven hours of supervised training in operating large dump trucks. Mr. Fish stated that Rosado had successfully completed the training process.

As stated earlier in this decision, a snowstorm occurred in the Fishkill section on February 16, 1996 and the Thruway Authority logbook of that date (Exhibit 8) discloses that Mr. Rosado was assigned to plow and salt section 3 of Route 84 during both shift 2 (7:00 a.m. to 3:00 p.m.) and shift 3 (3:00 p.m. to 11:00 p.m.).

Mr. Fish first learned of the accident as the result of a telephone call received from Timothy Sims. The following day Mr. Fish had a conversation concerning the accident with Mr. Rosado which resulted in Mr. Fish making a notation upon Exhibit 8 that "Rosado hit Tractor Trailer on Rt Shoulder while pulling off to see if assistance was needed". The witness testified that Exhibit 5 was a report of the accident prepared by Mr. Sims stating that the weather conditions at the time were heavy snow and winds with two inches of snow on the pavement. Mr. Sims stated in his accident report that there was no damage to the snowplow and that he observed damage to the hood and driver's side fender of the tractor trailer. Finally, the witness testified that snowplow operators were given no specific instruction as to where to position their vehicles when going to the aid of a motorist, but were trained in the use of the two-way radios with which the snowplows were equipped.

Mr. Timothy Sims testified that he was employed by the Thruway Authority for twelve years and held the title of Section Maintenance Supervisor I in the Fishkill section on February 16, 1996. Sims testified that Mr. Fish was his immediate superior and that his duties included designating work assignments for highway maintenance crews as well as assigning training to be received by new employees, such as Mr. Rosado. The witness oversaw Mr. Rosado's training during 1995 to February of 1996. On February 16, 1996, Mr. Sims worked the 3:00 p.m. to 11:00 p.m. third shift and was patrolling Route 84 in a pickup truck when he came upon a tractor trailer and car parked upon the southern shoulder of the interstate at a point located within section 3 which was, according to Sims, assigned to Adalberto Rosado on the day of the accident. Snowplow operators and supervisors were given no instructions with respect to when to render assistance to motorists and the witness knew of no specific rules regarding where a Thruway employee should park his vehicle when rendering assistance to a motorist. Mr. Sims parked his truck on the shoulder of the road behind the tractor trailer and activated his emergency lights to warn oncoming vehicles. He then exited his vehicle and approached the tractor trailer where he observed the claimant attempting to bend a damaged portion of the passenger side front bumper away from the truck's front tire. Mr. Sims unsuccessfully attempted to call a State Trooper to investigate the accident and thereafter left to complete the remainder of his rounds.

Approximately one hour later, Mr. Sims received a radio call relating a possible accident involving a snowplow at the site of the first incident. Sims returned to that location where he encountered a State Trooper and inspected the snowplow for damage. The snowplow was undamaged and the trooper permitted Mr. Rosado to resume his snowplowing duties. After the trooper left the accident scene, Mr. Sims again informed the claimant of the danger of being parked on the shoulder of the highway especially with the poor visibility caused by the storm. Mr. Swiercz showed Mr. Sims the damage to the driver's side front of the tractor trailer. The following day Mr. Sims prepared the accident report received into evidence as Exhibit 5, as well as the Supervisor's Report On Equipment Incident/Accidents received into evidence as Exhibit 6. Mr. Sims testified that the accident description set forth in Exhibit 6 which read, "The vehicle operator misjudged his vehicle clearance when he passed a tractor trailer that was parked on the right hand shoulder" was an assumption on his part as to what had occurred.

Adalberto Rosado testified that he had performed heavy snowplowing on several occasions prior to his employment with the Thruway Authority, albeit using smaller snowplows than the one he operated while employed by the Thruway Authority. He received temporary employment with the Thruway Authority during the summer of 1995 in bridge construction work and was called back for employment during the 1996 winter season. He was trained in the operation of snowplows through classroom sessions and on the road training with an instructor and had plowed alone on four occasions prior to the accident of February 16, 1996. Mr. Rosado's plow route varied during the winter of 1995-1996. Although he was primarily assigned to section 4 he testified that he had also plowed section 3 prior to February 16, 1996. On the day of the accident, Mr. Rosado reported to work and was assigned to plow section 3. His truck was equipped with a front plow and a wing plow which were raised and lowered by the use of levers. He successfully plowed and salted section 3 on two separate runs before returning to the terminal to check his plow blades and reload with sand. During that stop, Supervisor Sims advised Rosado about a tractor trailer accident and told Rosado to go and check the accident scene. Mr. Rosado left the terminal and entered Route 84 approximately 20 miles from the accident scene. He was within section 3 for approximately 3 to 4 miles before he observed the tractor trailer parked on the shoulder of the road. Rosado testified that he was plowing snow with his front plow as he approached the accident scene and that his lights were on and his wing plow was raised. It was at this point brought to Mr. Rosado's attention that at his examination before trial he had testified that he had placed the front plow in an up position approximately 2 minutes prior to the incident. Mr. Rosado determined to pull over and inquire whether assistance was necessary and in doing so drove past the tractor trailer and onto the southern shoulder of Route 84. According to Rosado his wing plow extends approximately twelve inches beyond the side of his truck when it is in an "up" position. He pulled his vehicle to a halt, activated his emergency lights and began to walk back to the tractor trailer when he was met by Mr. Swiercz who told him that the snowplow had hit the tractor trailer on the driver's side front bumper. Rosado returned to his vehicle and tried to radio Sims for assistance. Another Thruway worker overheard the radio transmission and contacted Sims.

Mr. Rosado did not believe that he had hit the tractor trailer and upon Sims arrival told him that no one other than Mr. Swiercz was making that claim. He told both Sims and the investigating State Trooper that he did not believe he had struck the vehicle, although Mr. Swiercz accused him of doing so. Mr. Rosado testified that at the time of the accident the salt and sand spreader in his vehicle was engaged and in operation.

Mr. Rosado conceded that he prepared the accident description contained in Exhibit 4, as well as filling out the MV-104 received into evidence as Exhibit 7. He testified that there was no indication in either Exhibit 4 or Exhibit 7 that his vehicle was engaged in plowing at the time of the collision. Mr. Rosado described the weather conditions as heavy snow and wind with poor visibility.

The final witness was Mr. Swiercz who testified that from 1984 to the time of the accident he was self-employed as a long haul truck driver operating his own tractor trailer and had been employed as a truck driver in Europe prior to immigrating to the United States in January of 1983. On the day of the accident he was traveling eastbound on Route 84. The claimant described the condition of the roadway as "very slippery"[2]
. It was snowing and approximately two to three inches of snow had accumulated on the road. At a point approximately ten miles from the Connecticut State line an automobile tried to pass his tractor trailer, began to spin and struck the passenger side front bumper of the tractor trailer. Mr. Swiercz passed the car, applied his brakes, and pulled his tractor trailer onto the southern shoulder of Route 84. He exited the vehicle and observed that the passenger side front bumper was bent inward towards the tire. He approached the driver of the automobile and advised him that the automobile had struck his truck. Supervisor Sims arrived on the scene, parked his pickup truck behind the tractor trailer and engaged in fifteen minutes of conversation with Mr. Swiercz. Sims advised Mr. Swiercz and the driver of the automobile to exchange the required accident information and then leave the scene. Swiercz and the other driver entered the trailer of claimant's vehicle to exchange paperwork. Both were sitting in the truck when Mr. Swiercz heard a "boom, boom, boom". Swiercz felt an impact and saw the snowplow pass on the left side of his vehicle. The snowplow pulled over onto the shoulder of the road and parked. According to Mr. Swiercz the snowplow operator exited his vehicle and approached the claimant's truck stating "I hit you, I hit you". Swiercz then exited his vehicle to examine the damage and discovered damage to the driver's side front bumper and hood. The snowplow driver advised Mr. Swiercz that he would call the police and went back to the snowplow to do so. Swiercz re-entered his truck cab to finish the exchange of paperwork with the driver of the automobile. When that task was completed, the automobile operator left the accident scene while Mr. Swiercz remained in his vehicle to await the police. Approximately 10 minutes later a trooper arrived at the scene, followed by Mr. Sims. Mr. Swiercz stated that his emergency flashing lights and headlights of his tractor trailer were turned on prior to the impact with the snowplow.
After reviewing the testimony and exhibits the Court concludes that the claimants have failed to establish that the snowplow operator operated his vehicle with reckless disregard for the safety of others at the time of this collision. Initially, the Court determines that Mr. Rosado was engaged in maintaining Route 84 within his assigned section immediately prior to the impact so as to bring into play the reckless disregard standard. Although there is conflicting testimony as to whether the front plow was lowered in the minutes before the accident, Mr. Rosado's testimony that the salt/sand spreader was engaged and in operation at the time of the accident was uncontradicted. The Court finds Mr. Rosado to be a credible witness with respect to that testimony. A snowplow engaged in salting or sanding a snow covered highway during a substantial winter storm is certainly engaged in maintenance work thereon for the purposes of Vehicle and Traffic Law § 1103 (b).

Having established that the reckless disregard standard of conduct applies, the question becomes whether there is any credible evidence in the record of such activity on the part of Mr. Rosado. The testimony of Mr. Fish and Mr. Sims was of no relevance upon that issue as they did not witness the accident or the manner in which Mr. Rosado operated his snowplow in the moments before the accident occurred. Likewise, Mr. Swiercz's testimony was of little use as he also did not observe the operation of the snowplow prior to the contact, as he first became aware of the collision upon hearing and sensing the impact. According claimants' evidence every favorable inference the best that can be determined from this record is that Mr. Rosado may have misjudged the distance between his wing plow and the tractor trailer in the course of attempting to pull off the road and render assistance. While such conduct may rise to the level of negligence, it certainly does not amount to a reckless disregard for the safety of others. As a consequence, the dismissal motion must be granted.

The Clerk is directed to enter a judgment in accord with this decision.

July 21, 2000
Saratoga Springs, New York

Judge of the Court of Claims

[1]Claimant in the singular refers to Kazimierz Swiercz.
[2]All quotations are from the Court's trial notes.