New York State Court of Claims

New York State Court of Claims

ENDAYA v. THE STATE OF NEW YORK, #2001-015-529, Claim No. 99516


Claimant, whose car was struck from behind by a State Police cruiser on ice covered roadway failed to prove that the State Police Officer operated his vehicle with "reckless disregard" for claimant's safety as required by Vehicle and Traffic Law § 1104(e) and could not recover for personal injury sustained in the accident.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Mitchell H. Spinac, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 19, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this matter was bifurcated by order of the Court dated March 7, 2000 and the decision herein addresses only the liability issue.

The claim filed on December 18, 1998 alleges that the claimant sustained personal injuries at approximately 8:15 a.m. on November 30, 1997 when his vehicle was struck from the rear by New York State Trooper Michael E. Kopp while on the Phoenicia Bridge, State Route 28, Town of Shandaken, Ulster County, New York. At trial, the claimant testified that he was operating his Nissan Sentra automobile on Route 28 in a westerly direction returning to his home in Margaretville, New York, from his job as a lab technician at Benedictine Hospital. Claimant testified that he operated his vehicle at what he described as a normal speed of 40 to 45 miles per hour when he noticed a light rain beginning to fall causing ice crystals to form on his windshield. Claimant continued operating his vehicle in a westerly direction until he approached the Phoenicia Bridge which is located on Route 28 and which was described as a two lane bridge approximately two-tenths of a mile in length. As he approached the eastern end of the bridge claimant noticed several vehicles which had left the roadway, one of which was located in a ditch approximately 80 feet prior to the beginning of the bridge and positioned at a right angle relative to the road. Claimant stopped and spoke to at least one of the individuals and then proceeded onto the bridge with what he described as extreme caution. As he proceeded on the bridge at approximately one mile per hour his vehicle began to slide into the eastbound lane of traffic approximately 20 feet from the far or western end of the bridge. Claimant recovered control of his vehicle and then noticed a tractor trailer which had turned east onto Route 28 from its intersection with Route 214 and was approaching the western end of the bridge. The claimant flashed his high beams in order to warn the truck driver of the bridge's icy condition, and both the truck and the witness' vehicle came to a stop next to one another at the far western portion of the bridge. The claimant testified that he checked his rearview mirror and did not notice any vehicles approaching as he and the truck operator conversed regarding the condition of the bridge's road surface. As the claimant was warning the operator of the truck that caution was required in crossing the bridge he again looked in his rearview mirror and noticed a state trooper vehicle approaching. The claimant testified that the trooper car was proceeding at what he described as a "high rate of speed" with his emergency lights flashing. Claimant first saw the trooper's vehicle when it was approximately three car lengths behind him and stated that within one second the trooper's vehicle struck the back of his car. Claimant's car spun around and came to rest facing east in the westbound lane of traffic. According to claimant, the state trooper then exited his vehicle, slipped and fell. Claimant's car was a total loss having sustained severe damage to its rear end and the trooper car was damaged in its front end. Several photographs were received into evidence to show the positioning of the vehicles subsequent to the accident as well as the damage sustained but not for the purpose of establishing the weather conditions present at the time of the accident as the photographs were taken 30 to 45 minutes subsequent to the accident, during which time it continued to rain. It was claimant's testimony that the bridge was "a sheet of ice" at the time of the accident. On cross-examination the claimant testified that he left work at Benedictine Hospital at 7:00 a.m. on the day of the accident. He described his route of travel and stated that sleet and freezing rain began to fall as he reached the Town of Olive. Claimant operated his vehicle at between 50 and 55 miles per hour until reaching the Town of Olive when he reduced his speed to approximately 45 miles per hour due to prevailing weather conditions. As he approached the Phoenicia Bridge located on Route 28 he noticed one vehicle off the road to the left and two vehicles off the road to the right side. Claimant spoke to certain of the individuals whose vehicles had left the road and was informed to exercise caution in crossing the bridge due to its icy condition. Claimant experienced no problems controlling his vehicle while travelling on Route 28 up to the time that he stopped to address the operators of the vehicles who had left the road at the eastern entrance to the Phoenicia Bridge. While on the bridge claimant proceeded at a slow rate of speed and encountered difficulty in controlling his vehicle as he approached its western end. Claimant then noticed a tractor trailer turning onto Route 28, flashed his lights and came to a stop next to the truck in order to address its operator and warn him to exercise caution. Claimant confirmed his testimony given on direct examination that he first became aware of the approaching state trooper's vehicle when he glanced in his rearview mirror. When first viewed, the trooper vehicle was three car lengths behind the witness' car and impacted the vehicle's rear end approximately one second later. After impact the witness exited his vehicle and heard the trooper vehicle's siren for the first time. The witness stated that the siren continued to sound as it had become stuck in an on position as a result of the front end impact to the trooper vehicle.

Claimant then presented the testimony of Michael Kopp, a New York State Trooper and the operator of the trooper vehicle involved in the accident at issue here. Trooper Kopp joined the New York State Police in October, 1996 and was assigned to the Hurley Barracks in the late summer of 1997. According to Trooper Kopp he was assigned patrol duties on November 30, 1997 in that area of Route 28 located between the Town of Olive and Phoenicia, New York. At approximately 8:00 a.m. Trooper Kopp was dispatched to respond to a personal injury motor vehicle accident in the Town of Shandaken. At the time he received the E-911 dispatch the trooper was conducting routine patrol on Route 28 and operating his vehicle at approximately 55 miles per hour. The trooper described the weather conditions at the time as drizzle or misting rain and stated that upon receiving the dispatch he proceeded to accelerate to a speed in excess of 55 miles per hour in response. The windshield wipers of the trooper vehicle were on and set at their lowest setting and visibility was good. The witness proceeded on Route 28 in a westbound direction when, in approaching the Phoenicia Bridge, he noticed a vehicle on the shoulder of the roadway at a 45 degree angle. Trooper Kopp slowed his vehicle to approximately 40 miles per hour as he passed the disabled vehicle and proceeded onto the bridge. The witness continued in a westerly direction and as he approached the halfway point of the bridge his vehicle began to slide. He tried to regain control of his vehicle by pumping his brakes, looked up, and noticed the claimant's car and tractor trailer both stopped at the western end of the bridge. Unable to regain control of his vehicle the trooper's car impacted the rear of claimant's vehicle which then spun around coming to rest in an easterly direction within the westbound lane of traffic. After striking the claimant's vehicle the trooper car then impacted the side of the tractor trailer and came to rest in a position perpendicular to the center line and across the westbound lane of traffic. The witness testified that when he entered the bridge he did not understand the surface of the road to be icy but, rather, wet due to the light misting rain. The witness concluded his direct testimony by stating that he had not traveled over the bridge previously that day. On cross-examination Trooper Kopp stated that the speed limit on the Phoenicia Bridge is 55 miles per hour. He received an E-911 dispatch at approximately 8:00 a.m. while traveling westbound on Route 28. He continued west on Route 28 in response to the call and traveled over a bridge prior to reaching the Phoenicia Bridge. He experienced no problems controlling his vehicle while traversing the bridge. He described the Phoenicia Bridge as a two lane bridge containing a slight curve which slopes slightly downhill from east to west. The trooper had no problem controlling his vehicle during the course of his travel on Route 28 prior to reaching the Phoenicia Bridge.

At the conclusion of claimant's case the defendant moved to dismiss the claim for failure to establish a
prima facie case. Decision on the motion was reserved.
The defendant presented the testimony of Gary Scheringer who has been employed by the State Department of Transportation for 29 years, most of which he has been stationed at the Department's Mount Tremper Office located approximately five miles east of the Phoenicia Bridge on Route 28. In November, 1997 Mr. Scheringer was employed by the Department as a Highway Maintenance Supervisor II. Mr. Scheringer laid the foundation for admission of defendant's Exhibit C, a storm log maintained by the Mount Tremper Office. Exhibit C indicates that on November 30, 1997 a storm involving rain, sleet and freezing rain began at 7:30 a.m. and concluded at 10:30 a.m.

The defendant also presented the testimony of Walter Bink, the operator of the tractor trailer involved in the accident. Mr. Bink was operating his tractor trailer on Route 214 when he turned onto the eastbound lane of Route 28 and approached the Phoenicia Bridge. Mr. Bink stated that at the time of the accident his vehicle was stopped at the western end of the bridge in the eastbound lane of traffic next to the claimant's vehicle which was stopped in the westbound lane. As they came to a stop next to each other, the claimant began to inform Mr. Bink that the bridge was icy and that he should exercise caution. The witness then heard a siren and as he looked up noticed a state trooper vehicle approaching. The trooper vehicle was located at approximately the halfway point of the bridge and was "fish tailing" when first observed by Mr. Bink. The trooper vehicle struck the rear of claimant's vehicle and then impacted the side of the tractor trailer. Immediately following the accident the witness exited his truck and assisted the state trooper to the side of the road.

Vehicle and Traffic Law § 1104 grants drivers of "authorized emergency vehicles" a qualified privilege to disregard the ordinary rules of prudent and responsible driving (
Szczerbiak v Pilat, 90 NY2d 553). Notwithstanding this privilege, paragraph (e) of section 1104 provides that "[t]he foregoing provisions 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."
The Court of Appeals in the companion decisions of
Saarinen v Kerr, 84 NY2d 494, and Campbell v City of Elmira, 84 NY2d 505 interpreted and applied the "reckless disregard" standard of liability to the operation of authorized emergency vehicles.
Saarinen, (at p. 501) the Court of Appeals stated:
This standard demands more than a showing of a lack of 'due care under the circumstances' - the showing typically associated with ordinary negligence claims. It requires evidence that ' the actor has 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 (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500.
That same standard was recently applied by a trial court on a CPLR 4401 motion made at the close of plaintiff's evidence in a case involving a bicyclist struck by a police officer responding to an emergency call. In its decision affirming the trial court's dismissal of the action the Court of Appeals held that it is appropriate for the trial court to grant such a motion where the Court "finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party"
(Szczerbiak v Pilat, 90 NY2d 553, 556). The Court further stated that in considering the motion the trial court "must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (id.).
Affording the instant claimant the benefit of all favorable inferences drawn from the facts of this case and considering such facts in the light most favorable to the claimant there is simply no evidence demonstrating that Trooper Kopp's operation of his state police vehicle was an intentional 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. Trooper Kopp's unrefuted testimony shows that on his way to the accident scene he had crossed another, although admittedly shorter, roadway bridge without incident and that while the road was wet and temperatures hovered around the freezing mark, he was unaware of the icy condition of the subject bridge until his vehicle began its slide into the rear of claimant's vehicle. Neither the claimant nor Trooper Kopp experienced any difficulties in controlling his vehicle while travelling upon Route 28 prior to reaching the Phoenicia Bridge. While the vehicles which had left the roadway at the eastern approach to the bridge provided some indication of potentially icy conditions, the Court is mindful that the trooper was en route to a personal injury accident; the vehicle's lights and siren were engaged; and that Trooper Kopp's testimony that he slowed his vehicle to approximately 40 miles per hour upon seeing the vehicles to the side of the road and proceeded onto the bridge at that speed was uncontroverted. Finally, there was no testimony establishing that the trooper knew or should have known that there would be vehicles stopped in both lanes of traffic at the far end of the bridge. Under the facts presented at trial, there is no rational basis upon which to conclude that Trooper Kopp operated his vehicle with the type of knowing disregard required under Vehicle and Traffic Law § 1104(e) to establish the defendant's liability.

Absent such a showing, the defendant's motion to dismiss the claim must be granted.

Let judgment be entered accordingly.

January 19, 2001
Saratoga Springs, New York

Judge of the Court of Claims