New York State Court of Claims

New York State Court of Claims

HAZZARD v. STATE OF NEW YORK, #2000-018-001, Claim No. 99182, Motion No. M-60896


Synopsis


Motion for Summary Judgment to dismiss claim granted Claimant failed to show snowplow operator's conduct rose to the level of reckless disregard based upon Vehicle and Traffic Law

§1103(b).

Case Information

UID:
2000-018-001
Claimant(s):
KATHERINE E. HAZZARD
Claimant short name:
HAZZARD
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99182
Motion number(s):
M-60896
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ELIZABETH A. GRAZIANE, ESQUIRE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
OF THE STATE OF NEW YORK
EDWARD McARDLE, ESQUIRE
ASSISTANT ATTORNEY GENERALOF COUNSEL
Third-party defendant's attorney:

Signature date:
April 4, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Notice of Motion........................................................................................................1


Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General in

support with Exhibits A through G attached thereto..................................................2


Affirmation of Elizabeth A. Graziane, Esquire, in opposition, with Exhibits

A through O attached thereto......................................................................................3


Affidavit of Katherine E. Hazzard in opposition........................................................4


Affidavit of Darlene A. Euler, D.C., in opposition.....................................................5


Reply affirmation of Edward F. McArdle, Esquire, Assistant Attorney General

in support with Exhibit H attached thereto..................................................................6


Filed Documents:


Verified Claim..............................................................................................................7


Answer..........................................................................................................................8


Defendant brings this motion pursuant to CPLR 3212 seeking summary judgment based upon Vehicle and Traffic Law §1103(b). It is defendant's position that in order for claimant to establish liability for the injuries she allegedly sustained as a result of a motor vehicle accident involving a State snowplow, she must show that the snowplow operator's conduct rises to the level of reckless disregard for the safety of others. Defendant asserts that claimant's allegations, even taken as true cannot, as a matter of law, establish reckless conduct and the claim must be dismissed. In the alternative, defendant argues that claimant cannot prove that she has suffered a serious injury as defined in Insurance Law §5103; and as a result, the claim must be dismissed. Claimant opposes the motion, arguing that the reckless disregard standard is not applicable to this situation, and that based upon the objective medical evaluations and testing, claimant has met the minimum requirements to establish that there is an issue of fact as to whether claimant has suffered a serious injury.

The claim alleges that claimant suffered serious injuries (Insurance Law §5103) as a result of an accident which occurred at approximately 6:00 p.m., on November 24, 1997, when a New York State snowplow traveling westbound on State Route 5 in the Village of St. Johnsville, Montgomery County, struck claimant's vehicle with its wing blade while claimant was sitting inside her legally parked vehicle. Defendant denies the allegations and asserts two affirmative defenses: that claimant has not sustained a serious injury or economic loss greater than basic economic loss as defined in §5102(a) of the Insurance Law; and that if claimant is successful, defendant is entitled to a set-off for any amount claimant received from collateral sources pursuant to CPLR 4545.[1]

Defendant, in support of its motion, relies upon the finding in McDonald v State of New York (176 Misc 2d 130), for its position that Vehicle and Traffic Law §1103(b) exempts the operator of a snowplow engaged in work upon a highway from the rules of the road set forth in Title 7 of the Vehicle and Traffic Law and imposes civil liability for a motor vehicle accident only where the snowplow driver's conduct rises to the level of reckless disregard for the safety of others. Based upon the supporting documents defendant submitted, it seems the roadway was not wide enough to permit the snowplow to get around claimant's vehicle without crossing over the center line. In crossing over the center line, defendant's employee misjudged the space needed and struck claimant's car with the wing blade of the snowplow. The accident occurred while the defendant's employee was spot salting and plowing the roads. At the time of the accident, he had used most of the salt on his truck but was continuing to the county line three miles away. From these facts, defendant argues that Vehicle and Traffic Law §1103(b) applies and the driver's conduct was not reckless as a matter of law.

Claimant, in opposition, relies on the decision of Cottingham v State of New York (701 NYS2d 290) to argue that Vehicle and Traffic Law §1103(b) does not create an exception from the "rules of the road" for hazard vehicles, such as a snowplow (See, Vehicle and Traffic Law §117-a). Hazard vehicles pursuant to Vehicle and Traffic Law §1103(b) are exempt only from the rules of the road relating to stopping, standing and parking (See, Vehicle and Traffic Law §1202-a). As a result, the last sentence of Vehicle and Traffic Law §1103(b) which sets forth the heightened standard of care and does not mention hazard vehicles, does not apply to a snowplow driver, who can be held liable for ordinary negligence. (Cottingham v State of New York, supra at 299.)

Vehicle and Traffic Law §1103(b) provides:

Unless specifically made applicable, the provisions of this title,

except the provisions of sections eleven hundred ninety-two through

eleven hundred ninety-six of this chapter, shall not apply to persons

teams, motor vehicles, and other equipment while actually engaged

in work on a highway nor shall the provisions of subsection (a) of

section twelve hundred two apply to hazard vehicles while actually

engaged in hazardous operation on or adjacent to a highway but

shall apply to such persons and vehicles when traveling to or from

such hazardous operation. The foregoing provisions of this subdivision

shall not relieve any person, or team or any operator of a motor vehicle

or other equipment while actually engaged in work on a highway from

the duty to proceed at all time during all phases of such work with due

regard for the safety of all persons nor shall the foregoing provisions

protect such persons or teams or such operators of motor vehicles or

other equipment from the consequences of their reckless disregard

for the safety of others.


In Somersall v New York Telephone Co, (74 AD2d 302, rev'd on other grounds 52 NY2d 157) a case arising from an accident involving a telephone repair truck, the First Department read the language of Vehicle and Traffic Law §1103(b) literally and found that the statute created two classes of vehicles: a work class and a hazard class. The work class was held to be exempt from all provisions of Title 7 of the Vehicle and Traffic Law and the hazard class was held to only be exempt from §1202-a. The telephone repair truck, as a snowplow, is a hazard vehicle under Vehicle and Traffic Law §117-a. Although not addressing whether the heightened standard of care contained in the last sentence of §1103-b applied to hazard vehicles, the Somersall Court tacitly relied upon principles of ordinary negligence.

In McDonald v State of New York, supra, the issue of the application of the heightened standard of care in Vehicle and Traffic Law §1103(b) was specifically raised as a result of claimant's accident with a snowplow. Judge Collins found that Vehicle and Traffic Law §1103(b) is ambiguous, and after a scholarly analysis of its legislative history combined with the rules of statutory construction, he arrived at the conclusion that the legislature in enacting the statute did not intend to create two mutually exclusive classes of vehicles as the Court had found in Somersall, supra. Judge Collins determined that the legislature intended the same exemptions for hazard vehicles as for other work vehicles engaged in work on a highway, and as a result snowplows engaged in the task of snowplowing, salting, or sanding on a highway are subject to the reckless disregard standard of care set forth in the statute. (Accord, Wilson v State of New York, Ct. of Claims filed September 30, 1998, J. McNamara, Claim No. 93508, aff'd 703 NYS2d 848; Gifford v State of New York, Ct. of Cl., filed April 6, 1999, J. Midey, Claim No. 95815, Motion Nos. M-58452 and CM-58508)

In Cottingham v State of New York, supra, Judge Bell arrived at a different conclusion from Judge Collins. Judge Bell followed the Court in Somersall, supra, finding that the legislature created a separate class of vehicles, the hazard class, which it did not exempt from all of the provisions of Title 7 of the Vehicle and Traffic Law. With this more literal reading of §1103(b), Judge Bell found that since the hazard class was not separately identified as being subject to the heightened standard of care, ordinary negligence principles applied. (Cottingham v State of New York, supra at 299.)

More recently, particularly since the filing of defendant's motion, the applicability of the heightened standard of care to hazard vehicles under Vehicle and Traffic Law §1103(b) has been addressed by the Appellate Division, Third Department in the case of Riley v County of Broome (700 NYS2d 573). In that case, a street sweeper owned by Broome County was sweeping the road when the sweeper was back-ended by the plaintiff. The Supreme Court charged the jury with the heightened standard of care set forth in Vehicle and Traffic Law §1103(b) and the jury found that the operator of the street sweeper was not reckless in his operation. As Judge Collins' found in McDonald, supra, the Appellate Division reviewed the legislative history of Vehicle and Traffic Law §1103(b) and concluded that the Legislature intended the statute to exempt from the "Rules of the Road" those engaged in highway maintenance, including hazard vehicles, and to limit the liability of those engaged in such maintenance operations to situations where the operators' conduct rises to the level of a reckless disregard for the safety of others. The Appellate Division, Fourth Department implicitly agreed in affirming the decision in Wilson v State of New York, supra, 703 NYS2d 848.

Based upon these Appellate Division decisions and under the circumstances of this case, the snowplow, a hazard vehicle, was actually engaged in work upon a highway, and as such the provisions of Vehicle and Traffic Law §1103(b) apply. As a result, claimant must show that defendant's employee operated the snowplow with reckless disregard for the safety of others.

The Court of Appeals in Szczerbiak v Pilat, (90 NY2d 553) defined "reckless disregard" as equivalent to the concept of recklessness, which has been described 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, supra at 557) The undisputed facts in this case show that the driving lane was not wide enough for the snowplow to get around claimant's vehicle without crossing over the center line. The snowplow driver attempted to pull around the claimant's parked vehicle by crossing over the center line; however, he misjudged the distance needed and struck claimant's vehicle with the raised wing blade of his snowplow. The accident occurred at night with blowing snow. There is no interpretation of these facts which could support a finding of reckless conduct. As a result, the Court must grant defendant's motion for summary judgment and dismiss the claim.

Given the Court's decision above, the issue of whether claimant suffered a serious injury will not be addressed. Defendant's motion is GRANTED and the claim is DISMISSED.



April 4, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]
Pursuant to Wilson v State of New York, (703 NYS2d 848) the Vehicle and Traffic Law §1103(b) heightened standard of care need not be pleaded as an affirmative defense.