New York State Court of Claims

New York State Court of Claims

KLEINHAMMER v. THE STATE OF NEW YORK, #2001-005-530, Claim No. 96054, Motion Nos. M-61326, CM-61514


The claim of a fleeing suspect who was injured when he alighted from his vehicle and was struck by the pursuing patrol car is not prohibited because of the criminal nature of Claimant's actions but is dismissed because the police officer's operation of his vehicle was not reckless (V&TL 1104).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Elliot, Stern & Calabrese, LLP
By: Christopher J. Calabrese, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On April 19, 2000, the following papers, numbered 1 through 14, were read on motion by Defendant for summary judgment dismissing the claim and on cross-motion by Claimant for an order compelling the production of certain documents:

1, 2, 3, 4 Notice of Motion; Affirmation in Support, Affidavit and other Annexed Exhibits; Memorandum of Law and Annexed Exhibit

5, 6, 7, 8, 9, 10 Notice of Cross-Motion; Affidavit in Support and Annexed Exhibit; Affidavit of Adam Kleinhammer and Annexed Exhibits; Affidavit of Tammy Granata; Affidavit of Robert J. Brandon, M.D., and Memorandum of Law

11, 12 Reply affirmation on Motion No. M-61326 and Annexed Exhibit; Affirmation in Opposition on Cross-Motion No. CM-61514

13, 14 Amended Claim, Answer

Upon the foregoing papers, the motion is granted for reasons noted and the cross-motion is denied as moot.

Claimant suffered physical injuries when he was struck by a vehicle owned by the New York State Police and operated by State Trooper Russell D. Barber. The accident occurred on April 26, 1995, on Unity Street in Rochester, New York. Defendant has now moved for summary judgment dismissing the claim on the ground that, as a matter of law, the State cannot be held liable for Claimant's injuries. Claimant opposes the motion and, in addition, has cross-moved for an order compelling the production of certain documents identified at the deposition of the Trooper Barber.

In testimony at their depositions, Claimant and Trooper Barber gave slightly different accounts of the events leading up to the accident. Claimant acknowledged that at approximately 5:30 p.m. on April 26th, while sitting in his pick-up truck, he took some heroin through his nose (deposition of Adam Kleinhammer, p 26 [Notice of Motion, Ex 2]). Afterwards, with some heroin still on his person (id., p 46), he drove his fiancee to the grocery store and then to an auto glass shop to have his truck's window fixed. He left the glass shop approximately 9:00 p.m., traveling west on East Main Street. When he turned onto North Street, he saw a traffic jam ahead and turned onto a side street to avoid it. He went through an alley and had turned back toward North Street when he passed a State Police cruiser that was "sitting on up on the sidewalk" (id., p 36). Claimant stated that he probably panicked because of the presence of the officer and sped up, crossing North Street and turning, in succession, onto four other streets. During these maneuvers, Claimant admitted, he "possibly" ran through a stop sign (id., p 39). According to Claimant, the lights and siren on the State Police vehicle activated "as soon as I sped up." He estimated that his highest speed was around 45 miles per hour. When asked why he kept going, he stated, "I was in a stupid panic, and I don't even .... I couldn't tell you" (id., p 47).

Claimant understood that the cruiser's lights and siren were signals for him to stop his vehicle but he did not do so until he reached Unity Street, at which time, partly in response to his fiancee's pleading, he slammed on the brakes "hard," hard enough that they made a skidding noise (id., p 42). He then got out of the car and put his hands up "like I surrendered" (id., p 43). Photographs taken of the accident scene show that Claimant's truck came to rest in the right-hand driving lane of the roadway (Notice of Motion, Ex 1, Photo Exhibit 4). Claimant stated that after he got out of the truck, he faced toward the oncoming State Police vehicle, leaning against the pick-up's door, with his hands raised up to about shoulder height. He was in this position when he realized that the other vehicle wasn't going to stop: "He was coming at me and I dove out, because it was coming and I know the car was going to get me. I could tell he was going to cram me right into my vehicle" (deposition of Adam Kleinhammer, supra, p 44). Claimant said that he was originally no more than one step away from his vehicle but that he jumped further away in an effort to avoid being hit (id., p 48).

The account of events given by Trooper Barber (deposition of Russell D. Barber [Notice of Motion, Ex 1]) agrees with Claimant's in most relevant respects up to the point that the vehicles reached Unity Street and Claimant stopped and got out of his truck. Trooper Barber explained that he gave chase to Claimant's vehicle because it went through a stop sign and also because earlier in the evening there had been a "notifying item" about a light blue Chevy S-10 pick-up that had been stolen (id., p 16). He stated that he put on his lights and siren only after he realized that Claimant's vehicle had sped up and was going faster than the posted speed limit of 30 mph. He followed the vehicle through the several turns onto side streets, observing it run at least two other stop signs before it stopped, very abruptly, in the roadway on Unity Street. At that point, Claimant's vehicle had completed the turn onto Unity Street but Barber's patrol car was about 50 feet behind and was just starting to make the turn (id., p 22). By the time the lead vehicle came to a complete stop, the cruiser was about 30 feet behind. Realizing that he had to take evasive action if he wanted to avoid hitting the back of the truck, Barber swerved to the left, directing his vehicle toward a vacant lot. At the same time, he saw the door on the left-hand side of the truck open and Claimant emerge. According to Barber, Claimant took at least two steps away from the truck before he was struck by Barber's vehicle (id., pp 26-27). Barber's vehicle also came into contact with the outer edge of the open door of the pick-up truck. When questioned, Barber explained that he chose to swerve to the left of the truck, rather than to the right, because he thought that the vacant field would be safer (i.e., less likely to have pedestrians or traffic) than the roadway on the right and because he had a better view of the area to the left of the truck, as the truck partially blocked his view on the right (id., pp 27-29). There was some slight damage to the front of the State Police vehicle (id., Ex 5) and more significant damage to the right side in front of the wheel well (id., Ex 15).

Defendant moves for summary judgment dismissing this claim on two grounds, the first of which is that Claimant is precluded from recovering money damages because he was engaged in serious criminal conduct at the time he was injured. There is no dispute that in certain instances public policy prevents individuals from profiting from their own wrongful conduct (Manning v Brown, 91 NY2d 116 [passenger who was "joy riding" in a stolen automobile could not sue driver or vehicle's owner]; Barker v Kallash, 63 NY2d 19 [youth injured while constructing a pipe bomb]; Johnson v State of New York, 253 AD2d 274 [person escaping from police custody]; Matter of Graphic Arts Mut. Ins. (Leno), 251 AD2d 981, and Preston v State of New York, 152 AD2d 943 [injuries sustained while operating a vehicle without permission]). As I have stated in another decision, "the relevant inquiry is twofold – did the injuries for which recovery is sought arise from the claimant's participation in a criminal act and, if so, does that criminal act rise to the level of gravity required to invoke application of the bar to recovery?" (Verweire v State of New York, CtCl, April 23, 1999 [Claim No. 95987, Motion No. M-57174]).

Claimant acknowledges that he "probably" ran through at least one stop sign after he saw the patrol car and that he was at some point driving above the 35 mph speed limit, and he believed he had pled guilty to driving while ability impaired by drugs after his arrest. Defendant also asserts that Claimant was committing other wrongful acts: operating an unregistered vehicle, operating a vehicle with improper plates, unlicensed operation of a vehicle, operating an uninsured vehicle, reckless driving, failure to yield to an emergency vehicle, failure to submit to a chemical test, and criminal possession of a controlled substance.[1] While these are serious crimes and violations, they may not serve to trigger the public policy exception because all of the driving offenses involve "lawful activities regulated by statute," rather than "activities which are entirely prohibited by law" (Barker v Kallash, supra, 63 NY2d 19, 24). Wrongdoing that falls within the first group -- in other words, violation of a statute governing the manner in which lawful activities should be conducted -- may constitute negligence or contributory negligence, but it does not preclude the imposition of liability on others (id.; Humphrey v State of New York, 60 NY2d 742, 744). That occurs only when the injured party "has engaged in activities prohibited, as opposed to merely regulated, by law" and when his conduct "constitutes a serious violation of the law and the injuries for which [he] seeks recovery were the direct result of that violation" (Barker v Kallash, supra; Manning v Brown, supra, 91 NY2d 116, 121). Claimant's injuries did not come about because he was driving a stolen car, as in Manning (supra), and his injury was not a direct result of any of the other totally-proscribed activities in which he was purportedly engaged.[2]

Defendant also asserts that Claimant was injured while attempting to avoid police apprehension. It is well-settled that absconding or attempting to abscond from police custody is "such a serious violation of the law as to preclude any recovery for injuries resulting from such violation" (Johnson v State of New York, 253 AD2d 274, 280, supra, affirming 174 Misc 2d 193). Here, however, Claimant was never in police custody, and while he was attempting to avoid apprehension when he began fleeing in his car, he was not engaging in an escape. In fact, Claimant maintains emphatically that at the time he was injured, he had decided to "give up"and moved away from the truck only because he was trying to avoid being hit by the patrol car.

Consequently, on the facts presented in support of this motion, there is no basis for concluding that Claimant is barred from recovering for his injuries because they were a direct result of his commission of a serious criminal act. This is not to say, of course, that his behavior and the manner in which he operated his vehicle may not be considered as contributory negligence as far as determining ultimate liability for the event.

Defendant's second ground for asserting that the claim should be dismissed is that the operation of the State Police vehicle in this instance does not, and cannot, meet the standard of "recklessness" that is imposed by Vehicle and Traffic Law §1104 on drivers of authorized emergency vehicles when they are involved in emergency operations. Pursuant to that statute, such drivers may stop, stand, park and make turns without regard to the normally-applicable rules of the road; may go through stop signals after slowing down to assure the public's safety; and may drive at excess speeds as long as they do not endanger life or property. Such a driver is not, however, relieved of the duty to "drive with due regard for the safety of all persons" and or "from the consequences of his reckless disregard for the safety of others."

This standard of recklessness has been interpreted to mean that the officer must have "‘intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome" (Saarinen v Kerr, 84 NY2d 494, 501). When confronted with an apparent threat to public safety, police officers are duty-bound to investigate and, short of such recklessness, are entitled to use "whatever means necessary . . . to overtake and stop" fleeing suspects (id., at 503). The same standard of care and measure of liability applies whether the plaintiff is struck by the police vehicle or the vehicle being chased and whether the injured party is a bystander, a passenger in the police vehicle, or, as here, someone in the vehicle is being pursued (see, Lopez v Town of Gates, 249 AD2d 934; King v Village of Cobleskill, 237 AD2d 689; Schieren v State of New York, 281 AD2d 828).

Determining whether an emergency vehicle has been driven recklessly requires assessment of the specific situation and manner in which the vehicle was operated (see, e.g., O'Connor v City of New York, 280 AD2d 309 [officer who approached an intersection at high speed, against the flow of traffic on a one-way street without sounding horn was reckless]), and "[t]he reasonableness of the officer's conduct must be gauged as of the time and under the circumstances in which he acted, not in retrospect" (Palella v State of New York, 141 AD2d 999, 1000; see also, King v Village of Cobleskill, supra, 237 AD2d 689). To qualify as "reckless," an officer's actions during a vehicular pursuit must be more than a momentary lapse in judgment, such as briefly looking away, and more than simply exceeding the speed limit (Szczerbiak v Pilat, 229 AD2d 977, 978; Lorber v Town of Hamburg, 225 AD2d 1062, 1064). When there is no possibility, given the facts of a particular situation, that the officer's actions could rise to the level of recklessness needed to impose liability, it is appropriate to grant summary judgment dismissing a claim (Lorber v Town of Hamburg, 225 AD2d 1062, supra).

Claimant contends that Trooper Barber operated the State Police vehicle in a reckless manner because he continued the pursuit after Claimant's vehicle had come to a stop and because he directed the vehicle to the left of the truck, where Claimant was standing, rather than to the right. This account of events entirely overlooks the short space of time involved and the need for instantaneous decisions on the part of the operator of the second vehicle. Claimant himself acknowledges that when he brought his vehicle to a stop on Unity Street, he did so very abruptly, quickly enough to cause his tires to "squeal." He also got out of the truck immediately and had barely finished raising his hands before the patrol car was almost on him as he stood in front of the open door. Claimant also acknowledges that he took one or two steps away from the truck in an effort to avoid the oncoming car, although this in fact placed him in the path of the oncoming vehicle. Nothing in the account of Claimant or his passenger conflicts with the testimony of Trooper Barber that he made the decision to go to the left of the truck before, not after, Claimant began to open the door. Just as Claimant may have made a tragic misjudgment in getting out of his truck or in moving more directly in front of the patrol car, it may be possible -- in hindsight -- to say that Trooper Barber made a misjudgment when he tried to avoid any collision by going to the left, instead of the right, of the truck. A misjudgment of that nature, resulting from a decision that had to be made in response to unanticipated changes (the truck's sudden stop, Claimant's decision get out of the truck and then move further to his right) is a far cry from the type of intentional indifference to probable harm that must be proven before liability can be imposed. The case on which Claimant places principal reliance, Rouse v Dahlem (228 AD2d 777), is almost totally inapplicable, as the evidence in that case established the police officer intentionally crossed into the oncoming lane of traffic in an effort to block the path of the motorcyclist he had been pursuing, raising an issue of fact as to whether he had done so in a manner that made a collision likely, if not unavoidable. Here, even if we consider the facts in the light most favorable to the Claimant, there was nothing in Trooper Barber's actions that could be considered an intentional, conscious disregard of a known serious risk of harm.

Because there can be no liability under the standard established by §1104 of the Vehicle and Traffic Law, Defendant's motion is granted and the claim is dismissed. Claimant's cross- motion is denied as moot.

September 6, 2001
Rochester, New York

Judge of the Court of Claims

[1] It is not clear whether Claimant was actually charged with these crimes or defense counsel is assuming that he could have been charged with them, based on the events that occurred (see Defendant's Memorandum of Law, pp 4-5).
[2] It is not necessary to decide whether, as counsel for Defendant suggests, there is a distinction to be made between an event being the "direct result" of some activity or "proximately caused" by that activity. There may be some merit to this argument, as evidenced by the holding in Manning (supra), where the injured party participated in taking the vehicle but was not the driver, and Reno v D'Javid (42 NY2d 1040), where the injured party submitted to an illegal abortion that was then negligently performed. In the instant case, there is no such close connection – however that connection is characterized – between Claimant's totally-proscribed activities and the injuries he suffered.