DANIELS v. THE STATE OF NEW YORK, #2002-001-501, Claim No. 99062
ADRIENNE S. DANIELS The caption, which originally read "Adrienne S. Daniels, Individually and As Parent and Natural Guardian of Tyler Christian Daniels, An Infant v The State of New York," has been amended sua sponte to reflect the withdrawal of the infant's claim at trial.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
SUSAN PHILLIPS READ
Finkelstein, Levine, Gittelsohn & PartnersBy: Steven P. Shultz, Esq., Of Counsel
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Esq., Assistant Attorney General, Of Counsel
April 16, 2002
See also (multicaptioned
Claimant Adrienne S. Daniels ("claimant") seeks to recover damages for injuries
that she allegedly sustained on October 3, 1996 when the rear bumper of the car
that she was operating and in which her infant son was a back-seat passenger was
struck by the right front bumper of a car operated by James Contino ("Contino"),
a parole officer with the New York State Division of Parole. Contino was at the
time participating in a law enforcement operation to apprehend a parole
absconder known to be armed.
I. TestimonyA. Claimant's trial testimony and the
In the early afternoon of Thursday, October 3,
1996, claimant, a 31-year old homemaker who lived in Middletown, New York with
her husband, Fred, and 19-month old son, Tyler, was driving west on Clinton
Avenue, Albany, New York, on the way from a relative's house to see her mother,
who was at work at The W. Averell Harriman State Office Building campus located
in the western end of the City of Albany (T 23-25,
Claimant, who was wearing a seat belt,
and her son, who was riding in a car seat situated in the middle of the car's
back seat, were in the Albany area to visit her parents, and she was driving
their Volvo at the time (T 24-25).
Although not a double-lane street, Clinton Avenue is nearly broad enough to
accommodate two cars traveling abreast in both directions, as well as to provide
parking on both sides (T 26-27). Claimant described the traffic as she traveled
along Clinton Avenue as "steady" and observed cars parked along the curb of both
the eastbound and westbound lanes (T 29).
As claimant reached the mid-way point of the 200 block of Clinton Avenue
between its intersections with Swan Street and Lark Street (T 25-26), she
"noticed a van stopped ahead, and out of the back of the van jumped three or
four men that were dressed like SWAT team members," who were armed with "[b]ig
guns" (T 29). She pulled over to the right, came to a complete halt and, as she
turned around to check on her son, was unexpectedly jolted when a vehicle
knocked the middle rear bumper of her car (T 30, 60-61, 66, 71). Claimant
described herself as feeling "[l]ike I had been hit by a bomb" (T 30) and as
experiencing an impact that was "very intense, very strong. . . . like I had
been blasted" (T 80).
Claimant had noticed the vehicle that struck her car's rear bumper parked in
the west-bound lane of Clinton Avenue as she drove past, but did not observe it
again before the accident; therefore, she agreed that she could not say whether
or not any of the vehicle's emergency lights were illuminated at the time (T
33-34). When asked at her deposition if she could estimate the speed of the
vehicle that struck her car's rear bumper, claimant answered "No" (T 67-68),
which is consistent with her trial testimony that she observed this car before
the accident only when it was parked.
She also offered at trial, however, that the car that came into contact with
her car's rear bumper was traveling at a speed of 40 to 50 m.p.h. (T 67) at the
time, which is what she told the chiropractor who first treated her after the
accident (Dr. Claude D. Guerra) and "probably" told another chiropractor who
treated her ( Dr. James E. Trudeau); as well as what she told a chiropractor who
examined her for GEICO, the no-fault carrier (Dr. Raymond A. Ermacor) (T 68-69;
clt. exh. 2-000105, 000335, 000349, 000353). Claimant did not provide any
photographs or other evidence of the extent of any damage to the car that she
was driving (T 71-72); however, she estimated damage in the range of $250 when
filling out an "Accident History Questionnaire" on October 7, 1996 (clt. exh.
In the immediate aftermath of the accident, claimant felt "very groggy" and
"dazed" (T 31). She recalls someone "standing across the street at the time
[who] came over to the car and started to ask me if I was all right," and that
the driver of the vehicle that struck her car's rear bumper "backed up and drove
around me, kept on going" and "[a] few minutes later, another Police Officer ran
down to the car and asked me if I was all right," to which she responded that
she did not know (
). She was asked to move her car out of the flow of traffic and wait
(T 63); she gave an accident report before leaving the scene of the accident (T
When asked if she wanted an ambulance to take her to the hospital, claimant
declined (T 31-32). She described herself as "afraid," "nervous" and "a little
dazed" and as "having a hard time breathing" as well as feeling pain in her
chest, neck, lower back and shoulder (T 31); however, claimant feared that an
would scare my son to death. I didn't know what they would do with him while I
was in the ambulance. I was afraid to leave my mom's car on Clinton Avenue. I
just was really unsure of what to do because I was alone other than with the
Claimant drove to Albany Medical Center Hospital's emergency room, where she
was examined, underwent x-rays and received prescriptions for pain medication
and a muscle relaxer (T 35, 69). The x-ray reports disclosed no fractures or
dislocations of the right shoulder or thoracic spine (clt. exh. 2-0001-0007,
00013), and claimant's diagnosis was "back and shoulder strain" (clt. exh.
2-0009). She and her son, who was also examined, were released without
hospitalization and were driven to her parents' home by her mother (T 35-36,
Claimant described herself after the accident as
feeling sore, very groggy, nauseous from the medication, also I was having
headaches. I felt like depressed and very concerned about my son. He seemed
to--at that time, he seemed to be holding his right hip when he was playing and
walking, that worried me quite a bit. And just still in shock
Although claimant had intended to return to
Middletown with her son, she remained at her parents' home in the Albany area
for about six months "because it was more convenient. My husband, at the time,
was working a lot of hours. . . . my parents were able to help take care of me,
help take care of [my son], made it a lot easier" (T
According to claimant, she was totally confined to bed or the couch in her
parents' home for the first three days after the accident, and received no
visitors other than her husband and family (T 41, 69;
, T 70-71, 80-81 and clt. exh. 2-000287, which indicate that
claimant signed a medical authorization in her attorney's office on Friday,
October 4, 1996, the day after the accident). Then, "when [she] felt like [she]
could at least get off the couch" (T 41) after the first three days, she tried
to pick up her son, who weighed about 20 pounds at the time, and quickly
realized that her right shoulder and arm were too weak for her to do so when she
almost dropped him in the attempt (T 41-42).
On Monday, October 7, 1996, claimant visited a chiropractor, Dr. Claude D.
Guerra ("Guerra"), to whom she appears to have been referred by the attorney
with whom she met on Friday, October 4, 1996, the day after the accident (T
37-38, 43, 70-71; clt. exh. 2-00053, 000287). Guerra prescribed paid household
(principally childcare) assistance for four hours a day for seven days a week
(clt. exh. 2-00072, 00079-00083;
, clt. exh. 2-000199-000243), which was provided by a friend of
the family (T 39-41, 73).
He also certified
that claimant was "totally incapacitated" for the period October 7, 1996 through
April 7, 1997 (clt. exh. 2-00074-00078); and released her from his active care
on May 15, 1997, indicating that she should continue to see him as needed "per
exacerbation of pain" (clt. exh. 2-00057). The only specific accident-related
limitations that Guerra ever placed on claimant were "no heavy or overhead
lifting, no push-pull activity, avoid prolonged positions" (clt. exh.
2-00079-00083). Claimant acknowledged that she was still able to lift light to
medium weights if conveniently positioned, and to perform some household and
childcare duties in the months immediately following the accident (T 72-73; clt.
Soon after claimant came under Guerra's care, she underwent various diagnostic
tests at his insistence including thermography, performed on November 20, 1996;
electromyography, performed on October 31 and November 14, 1996; somatosensory
evoked potentials, performed on November 7, 1996; and MRIs of the lumbar and
cervical spine, performed on October 23 and 24, 1996 respectively (clt. exh.
2-00087-000103, 000129-000195). The results of these studies were interpreted
as within normal limits with a few exceptions: the MRI of the cervical spine
was interpreted to have revealed a "[s]mall central disc herniation at C4-C5
slightly indenting the thecal sac" (clt. exh. 2-000101); thermography was
interpreted to have shown decreased heat emission in digits 4 and 5 of both
hands (clt. exh. 2-00087, 000129); and (3) the C8 segmental somatosensory evoked
potential was interpreted as abnormal on the right side (clt. exh. 2-00095,
Guerra also referred claimant to Dr. Reynaldo P. Lazaro ("Lazaro"), an
associate professor of neurology at The Albany Medical College, who examined her
and wrote a report dated December 18, 1996 (clt. exh. 2-00085-00086). Lazaro
described claimant's subjective symptoms at the time of his examination as "pain
affecting her neck, shoulder and lower back and numbness and tingly sensation in
th and 5th digits on the right. The intensity of these symptoms has subsided
from a scale of 10 down to 6" (clt. exh. 2-00085). He noted that "[t]here is no
prior history of job-related or car accident-related injuries. She is currently
a homemaker taking care of her 1-year-old child, but in recent weeks she has had
difficulty performing household chores. Previously she worked as an operation
manager for three to four years" (id.
; but see
, T 74-76).
Lazaro noted that results from the diagnostic tests performed at Guerra's
laboratory were not available to him, and, upon his neurological examination of
claimant, he found decreased sensibility to pain in the fifth and fourth digits
of her right hand and medial forearm, and a tender right upper trapezius muscle
(clt. exh. 2-00086). His assessment was as follows:
[Claimant's] symptomalogy is consistent with post traumatic myofascial and
musculoskeletal pain in the right upper extremity and shoulder and sensory
cervical (C8) radiculopathy. . . . surgical evaluation is unnecessary. . . .
[and] the current treatment regimen she is receiving . . . is quite appropriate
because of the mechanical etiology of her symptom complex which in my opinion is
causally related to the 10/03/96 car accident. I cannot comment on its
permanency at this point
GEICO referred claimant for an independent chiropractic examination by Dr.
Michael Tirella ("Tirella") on February 12, 1997 (clt. exh. 2-000329-000333).
Tirella recorded claimant's subjective symptoms as "neck and upper back pain
with pain into the right shoulder and arm and numbness and tingling of the right
arm. . . . at a level 8 on a pain scale" (clt. exh. 2-000331). As for past
medical history, claimant denied any history of similar pain prior to the
accident, but "[t]here was one other automobile accident that she recalls in
1989, and although she states that there were no apparent injuries, she did
receive physical therapy for a short period of time for some sort of soft-tissue
Based on the history related to him by claimant, his examination of her and a
review of her medical records, including the reports of the diagnostic tests
ordered by Guerra the previous fall, Tirella diagnosed "[c]ervical and thoracic
sprain/strain syndrome with cervical disc syndrome" causally related to the
automobile accident on October 3, 1996 (clt. exh. 2-000333). He recommended
continuation of claimant's chiropractic care, which he considered to have
benefitted her, and a re-evaluation of her condition after two to three months
). Further, Tirella considered claimant disabled and in continuing
need of household assistance "dressing and bathing her son, doing the laundry,
shopping, cooking, and cleaning"; and recommended a home exercise regimen for
Dr. Raymond A. Ermacor ("Ermacor") performed the chiropractic re-evaluation of
claimant for GEICO on June 18, 1997 (clt. exh. 2-000335-000341). At that point,
she complained of neck, shoulder and back soreness, specifically in the upper
back, and stated that "she has aching and soreness and previously had some
numbness and tingling into the right upper extremity to include the last two
digits of the right hand," but "now . . . she just has tingling in that area and
numbness into the 5
th right digit, which is improving and comes intermittently" (clt. exh.
2-000335-000337). The medical records that Ermacor reviewed included the
reports of the x-rays taken on the day of the accident, the diagnostic tests
ordered by Guerra in the fall of 1996 and additional x-rays that he indicated
were taken on January 3, 1997 at Albany Memorial
which are not part of the medical
record submitted into evidence. According to Ermacor, the reports of these
January x-rays of claimant's cervical spine made "findings compatible with
spasm, advanced degenerative changes of C3-C6 with disc narrowing and associated
spurring" (clt. exh. 2-000337).
Ermacor's diagnosis was "[c]ervical sprain/strain with accompanying
radiculopathy into the right upper extremity, specifically the C8 distribution.
Also, diagnosis of lumbar sprain/strain, which is now resolved" (clt. exh.
2-000341). He considered that this condition was causally related to the
accident "[a]ssuming that the history as given by the claimant is accurate and
true"; that she had recovered sufficiently not to require continued household
assistance; and recommended once monthly chiropractic care for four months
Claimant last received
chiropractic treatment for injuries allegedly related to the accident of October
3, 1996 in the fall of 1997 in Chesapeake, Virginia, where she and her family
had moved from Middletown, New York (T 74; see also
, T 43-44; clt. exh.
Claimant acknowledged that she had been involved in an automobile accident
prior to October 3, 1996: in 1988 or 1989 while she was stopped at a toll booth
on a highway in Richmond, Virginia, another car struck the rear of her vehicle
(T 47-48, 75). As a result, claimant received injuries, including a strained
neck, and went on disability leave from work and received physical therapy for
six months (T 48, 75-76).
After her six-month period of disability leave, claimant returned to her job as
a mail carrier for the U.S. Postal Service, which required her to carry a sack
of mail weighing 40 to 50 pounds over her right shoulder for a distance of 16
miles each workday (T 49-50). She continued in this job for three years after
the accident in 1988 or 1989 (T 50).
Claimant contends that she fully recovered from her injuries from this earlier
accident (T 48-49): prior to her pregnancy in 1994, she played racquetball and
basketball and swam; after her son's birth she swam and walked, but she always
planned to take up racquetball again (T 50-51). In addition, she performed a
wide array of household duties: yard work, vacuuming, mowing, laundry, cooking,
cleaning, mopping, sweeping and window washing (T 51).
By contrast, claimant contends that she has never fully recovered from the 1996
accident, and is "not the same person" (T 59) she once was: she lacks the
strength, stamina and range of motion that she had previously enjoyed; she has
never regained her former athletic prowess (T 53-55;
, T 84-86). As claimant described her current condition:
My physical capabilities are very limited, still are very limited. I mean, I
swim still, I play racquetball about once a week or so. I play basketball, but
not as much as I would like to because afterwards I have shoulder pain. As far
as cleaning, I do some housework, but I don't do it all in one day because I
suffer afterwards from pain and soreness. I'm just not the same
She complained at trial principally about her
continuing susceptibility to right shoulder pain (T 52,
Dr. James R. Storey ("Storey"), a neurologist, examined claimant for defendant
on June 28, 2000 (def. exh. A). Her major complaint was continuing pain in her
right shoulder (def. exh. A, p 3). Claimant's neurologic examination was
normal; and Storey discounted the significance or value of the three less than
completely normal findings reported from the raft of diagnostic tests performed
on claimant in the fall of 1996. Specifically, he described the reported disk
bulge at C4-5 as "so small as to be even questionably present. . . . probably
within the normal range and . . . certainly of no clinical significance"; noted
that only one (the C8 segmental somatosensory evoked potential) of multiple
electrophysiologic tests was questionable, but that another such test covering
virtually the same pathway was normal and that the difference on which the
abnormal reading was based was not statistically significant; and commented that
"The American Academy of Neurology in [its] practice guidelines does not
consider [thermography] to be a useful study" (
, p 4). Storey concluded that claimant had "suffered some
musculoskeletal strain as a result of the motor vehicle accident. The majority
of her symptoms improved over time as would be expected. Her only residual at
this time is supraspinatus tendinitis without evidence of neurologic injury"
).B. Contino's deposition testimony
3, 1996, Contino, a veteran parole officer with the New York State Division of
Parole ("the Division") who was then assigned to the Bureau of Special Services
Absconder Search Unit in the Division's Albany office (DT-C
participated in a joint operation carried
out by the Division with the Federal Bureau of Investigation and the City of
Albany's Police Department to apprehend a parole absconder for whom the
Division's New York City office had issued an arrest warrant, and who had sold
crack cocaine earlier that day to an undercover parole officer (DT-C 13-15, 24).
Upon learning that the absconder intended to leave Albany for New York City that
day, representatives from these three law enforcement agencies met and devised a
plan to apprehend him (DT-C 25-26). Several things were known, all of which
were factored into this plan: that the absconder was armed; that he was
traveling to New York City by bus; that he was going to be picked up by a cab
operated by a certain taxicab company to be taken to the bus station; that he
was taking cover in an apartment in a particular building on Clinton Avenue, the
location at which he was to be picked up by the cab (DT-C 13-14, 24, 29).
Contino and another parole officer staked out the building from an automobile
parked facing west next to the curb of the westbound lane of Clinton Avenue;
they were positioned about 200 feet east of the building, which was on the same
side of the street (DT-C 14, 16, 34). Members of the Albany Police Department's
Emergency Service team, outfitted in tactical gear--"[b]lack suits, black
helmets, carrying long arms [shotguns and submachine guns], as well as
handguns"--were stationed in a closed, unmarked van in the vicinity of the
building (DT-C 14;
, DT-C 28-29, 37). Marked police cars were also out of sight but
nearby "to provide a visible presence of the police, uniforms, what have you,
since [Contino and his fellow parole officer] were in plain clothes. And the
tactical team [members] were in tactical uniforms" (DT-C 23).
All three law enforcement agencies were in radio contact (DT-C 15). Knowing
that the absconder was armed, law enforcement personnel were particularly
concerned that he might take the cab driver hostage or take over the cab (DT-C
The plan devised by the law enforcement personnel called for Contino and his
partner to radio the other agencies when the cab arrived to pick up the
absconder, and again when he left the building (DT-C 17-18, 32-33). Once
alerted that the absconder had left the building, the tactical team was supposed
to drive the van down Clinton Avenue from west to east and pull it up behind the
cab, which would prevent the cab from backing up and also block eastbound
traffic (DT-C 14-17, 22). As soon as he saw the tactical team exiting the van,
Contino was supposed to move his vehicle out of its parking place on the curb of
the westbound lane of Clinton Avenue, make a U-turn and block the cab from the
). Contino also "seem[ed] to recollect" that one marked police car
would follow behind the van, and another would back him up (DT-C 27); he was
uncertain whether or the degree to which marked police units were supposed to
block or control eastbound or westbound traffic on Clinton Avenue as events
unfolded (DT-C 22-23, 27-29).
Because the absconder was armed, the members of the tactical team were to
arrest him and then turn him over to the custody of Contino and his partner
(DT-C 15, 24-25). The participants in this plan tried to time and coordinate
all their actions in such a way that the absconder was arrested when he was very
close to but not yet in the cab, and thus to reduce the potential for
hostage-taking and danger to the public (DT-C 39-41).
As Contino and his partner waited and watched, the cab pulled up on Clinton
Avenue across from the building and honked (DT-C 17). Contino radioed other law
enforcement personnel to alert them to the cab's arrival, and turned on his
car's engine (DT-C 17-18, 32). At the time, traffic in the westbound lane of
Clinton Avenue was moving along at about 30 to 35 m.p.h. (DT-C 31-32).
Eastbound traffic had cleared away after having been stopped behind a school bus
for a time (DT-C 19-21, 29).
Contino radioed other law enforcement personnel when a female left the building
and walked towards the cab, and again when a male came out and looked up and
down the block (DT-C 32-33, 37-38). As the male started to cross the street and
headed towards the cab, Contino looked out his sideview mirror and saw perhaps
three westbound vehicles approaching from behind him; he waited for them to pass
by before moving out of his parking place into the westbound travel lane (DT-C
, DT-C 40-42).
As it turned out, claimant was driving the last of these three vehicles (DT-C
33). Contino recounted what happened after she drove past him as follows:
And I began. I signaled and I began to pull out. At the same time, we plugged
in our red light that [his partner] placed on the dashboard. And I turned on
the emergency lights.
As I pulled into the lane, the traffic came to an abrupt stop. I stopped.
Backed up, attempted to pull around [claimant's] vehicle.
And as I pulled around [claimant's] vehicle, my right front bumper tipped her
left rear bumper. I then proceeded in front of the cab, placed my handcuffs on
the individual who was arrested. Took custody of him.
[My partner] assisted me. Another officer took custody of the female. And
someone else took custody of the bag, a suit case or a satchel that the male
individual was carrying.
We then took the two people, the male and the female, up to the apartment since
we had a search warrant for the apartment. In the apartment the bag was
searched and a pistol was found in the bag.
Shortly thereafter a uniform officer came up to tell me that [claimant] had
stopped him and had indicated that her vehicle had been involved. And he asked
who drove the Dodge Dynasty. And I told him it was mine.
I thought he was going to ask me to move the car. But he indicated [claimant]
had told him that our vehicles had come in contact and that she wanted to file
an accident report.
So I then went downstairs with him and gave him the necessary information for
the accident report
The emergency light placed on the dashboard had been sitting on the floor or
the seat of the car (DT-C 34-35). This red, 360-degree light plugs into the
car's cigarette lighter; the other emergency lights referred to by Contino were
the four-way hazard lights that are standard equipment on an automobile (DT-C
When asked why westbound traffic stopped abruptly, Contino speculated "[t]hat
when they saw the tactical team exit the vehicle with their tactical gear, that
they were concerned. Possibly panicked" (DT-C 36). He had just pulled his car
out into traffic and was traveling at a speed of perhaps 15 m.p.h. when the
westbound traffic both ahead of and behind him came to this dead stop, so he
"didn't have much room to maneuver" (DT-C 43). He backed his vehicle up and cut
his wheel towards the curb; he was just pulling away from the curb and had
reached a speed of only perhaps 5 m.p.h. "when my right bumper came in contact
with the left rear bumper of [claimant's] vehicle. Just barely tipping it"
(DT-C 43). Contino was "shocked and surprised" when he learned that claimant
"wanted to file a police report because it would barely be considered an
) In the same vein, Contino testified that he only "heard a little
tip" and "felt no contact" from this "non-accident" (DT-C 44-45, 48).
Afterwards, Contino and another officer checked his vehicle for damage and
observed none: "There was no broken glass. There was no piece of molding.
There was no obvious sign of damage to my vehicle or her vehicle" (DT-C 45).
Contino also looked on the roadway for molding or glass or skid marks, and again
saw nothing (
He asked claimant if she was all right, and "[s]he said she was upset" (DT-C
46). He asked if she wanted an ambulance, which she turned down (
). Contino also asked about her son, whom he thinks was standing in
the car's back seat, and he believes that claimant responded that her child was
also upset (DT-C 46-47).
Photographs of the Dodge Dynasty that Contino was driving on October 3, 1996
were taken on October 24, 1996, three weeks later (def. exhs. B-I). These
photographs disclose some slight damage: a barely perceptible scrape on the
vehicle's right front bumper molding (def. exhs. B, C, F and G) and a piece
missing from the molding beneath the right front turn signal/side marker light
above the bumper (def. exhs. D, E and F). This damage was repaired on November
5, 1996 at a cost of $217.35 (def. exh. J).
II. DiscussionA. Standard of care and other
issues related to negligence
The parties dispute the standard of
care applicable to Contino's operation of his car. Defendant argues that the
correct standard is reckless disregard for the safety of others as established
by statute for the operator of an authorized emergency vehicle, such as a police
vehicle, involved in an emergency operation (Vehicle and Traffic Law
§§ 101, 114-b, 132-a, 1104); and that claimant has failed to prove
that Contino breached this standard. Claimant advocates the common-law standard
of ordinary negligence, arguing that section 1104 does not apply because Contino
was neither actively chasing the absconder nor responding to an emergency call
when the accident occurred. Claimant contends that Contino acted negligently
when he misjudged the distance between his vehicle's right front bumper and her
vehicle's rear bumper, and that she was in no way responsible for the ensuing
accident; and further that the police negligently discharged their general
duties by the manner in which they chose to arrest the absconder, and thus
breached a special duty owed to her.
Vehicle and Traffic Law § 1104 permits the driver of an "authorized
emergency vehicle," which is defined by section 101 to include a "police
vehicle" as defined by section 132-a, when involved in an "emergency operation,"
which is defined by section 114-b, to proceed past red traffic signals and stop
signs; exceed the speed limit; and disregard regulations governing directions of
movement or turning, stopping, standing or parking so long as certain specified
precautions are observed (Vehicle and Traffic Law, §§ 1104 [a], [b]).
These provisions do not, however, "relieve the driver . . . from the duty to
drive with due regard for the safety of all persons, nor . . . protect the
driver from the consequences of his reckless disregard for the safety of others"
(Vehicle and Traffic Law § 1104 [e]).
Observing that "[d]rivers of emergency vehicles have a primary obligation to
respond quickly to preserve life and property and to enforce the criminal laws"
Saarinen v Kerr
, 84 NY2d 494, 497) and that "the evident legislative
purpose" of section 1104 is to "afford operators of emergency vehicles the
freedom to perform their duties unhampered by the normal rules of the road"
, at 502), the Court of Appeals has held that "a police officer's
conduct in pursuing a suspected lawbreaker may not form the basis of civil
liability to an injured bystander unless the officer acted in reckless disregard
for the safety of others," which equates with the tort concept of recklessness
and thus "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" (id.
, at 501, quoting Prosser and
Keeton, Torts § 34, at 213 [5th ed.]; see also
, Campbell v City
, 84 NY2d 505; Szczerbiak v Pilat
, 90 NY2d 553). This
standard "requires a showing of more than a momentary judgment lapse" and so is
"better suited [than is a standard of ordinary negligence] to the legislative
goal of encouraging emergency personnel to act swiftly and resolutely while at
the same time protecting the public's safety to the extent practicable"
, at 502).
Here, the parties do not dispute that Contino's vehicle was a "police vehicle"
as defined by Vehicle and Traffic Law § 132-a and therefore an "authorized
emergency vehicle" as defined by Vehicle and Traffic Law § 101 for purposes
of Vehicle and Traffic Law § 1104. Nor does claimant seem to suggest that
Contino acted recklessly; rather, she contends that because Contino was carrying
out a "planned mode of operation" (
Jansen v State of New York
, 60 Misc 2d 36, 42, affd
32 AD2d 889)
to box in the taxicab, which was at a standstill and not a threat to public
safety, he was not involved in an "emergency operation" as defined by Vehicle
and Traffic Law § 114-b and so his actions do not enjoy the exemption from
ordinary negligence conferred by Vehicle and Traffic Law §
In support of her position
, claimant quotes at length from Jansen
, which was decided
in 1968 when different although similar provisions of the Vehicle and Traffic
Law were in effect. In Jansen
, two troopers who were in radio contact
while speeding after a stolen car devised a plan to box the fleeing vehicle in
between their two cars at an oncoming intersection where the highway's
southbound lanes narrowed and the north and southbound lanes were divided by a
traffic island. As they approached the intersection and carried out this
tricky, agreed upon maneuver, which was apparently intended to force the fleeing
vehicle into the traffic island, the fugitive deliberately veered into the
trooper's car on his left, both cars careered left across the median into the
northbound lanes and the fleeing vehicle hit claimant's car, which was stopped
at the intersection in the left-hand turn lane.
The Court drew a distinction between the privileges afforded by section 1104 to
"the permissible manner of operation" of an emergency vehicle and "the conduct
or actions of police officers in the general discharge of their duties," to
which the rules of ordinary negligence were said to apply (
, at 41), and found section 1104 inapplicable to
these facts because the accident was, at least in part, proximately caused by
the officers' "somewhat bizarre" plan (Jansen
, at 43). The
Court found the officers negligent for failing to abandon their ill-advised
scheme once they saw claimant's automobile stopped at approximately the point
where they intended to box in the fugitive. Claimant argues that Contino was
similarly engaged in a predetermined mode of operation, and was likewise
negligent for failing to abort his plan to make a U-turn on Clinton Avenue once
the westbound traffic abruptly stopped.
's precedential currency has depreciated in value since 1968,
however. In 1970 the Legislature substantially amended the provisions of the
Vehicle and Traffic Law governing emergency vehicles (see
, L 1970, ch
197). Of particular importance to this case, subdivision (a) of section 1104
was amended to make the section's privileges available to "[t]he driver of an
authorized emergency vehicle, when involved in an emergency operation
(italics indicate addition in text); and new section 114-b was added to the
Vehicle and Traffic Law to define an "emergency operation." This latter
provision, which has been amended several times since 1970 to call out new
activities that fall within its scope, currently defines an "emergency
[t]he operation, or parking, of an authorized emergency vehicle, when such
vehicle is engaged in transporting a sick or injured person, transporting
prisoners, delivering blood or blood products in a situation involving an
imminent health risk, pursuing an actual or suspected violator of the law, or
responding to, or working or assisting at the scene of an accident, disaster,
police call, alarm of fire, actual or potential release of hazardous materials
or other emergency. Emergency operation shall not include returning from such
The question in this case thus becomes the meaning of the word "pursuing" in
the phrase "pursuing an actual or suspected violator of the law" and in the
overall context of the Vehicle and Traffic Law. The word "pursue" commonly
means "to follow in order to overtake, capture, kill, or defeat" or to "chase"
(Merriam-Webster's Collegiate Dictionary, 950 [10
th ed]). Further, although the words "pursue" and "chase" are closely related
in meaning, "CHASE implies going swiftly after and trying to overtake something
fleeing or running <a dog chasing
a cat>" whereas "PURSUE suggests
a continuing effort to overtake, reach, or attain <pursued
criminal through narrow streets>" (id.
, at 193 [emphasis in
Contino and the other law enforcement personnel were obviously "pursuing" the
parole absconder on October 3, 1996 because they were engaged in a continuing
effort to overtake and apprehend him. When the accident occurred, they were in
the midst of carrying out a plan devised to capture him before he had the
opportunity to reach a cab and flee from his hideaway on Clinton Avenue to the
Albany bus station and then on to New York City. Claimant, however, essentially
asks the Court to read the word "pursuing" in section 114-b as limited to those
situations where the driver of an authorized emergency vehicle is "pursuing" in
the particular sense of "chasing"; i.e., going swiftly after another vehicle in
which an actual or suspected criminal is, in fact, fleeing.
The Court of Appeals in
Criscione v City of New York
(97 NY2d 152) recently addressed a similar
plea to qualify a phrase used in section 114-b. The specific question in
was whether the driver of a patrol car involved in an
automobile accident, who was enroute to the location of a 911 call regarding a
family dispute to which he and his partner had been summoned by a police
dispatch, was undertaking an "emergency operation" within the meaning of Vehicle
and Traffic Law § 114-b at the time. Consistent with police department
policy, the police officers considered the police dispatch that relayed the 911
call to be a "non-crime," "non-emergency" call and thus they did not increase
their patrol car's speed or activate the siren or turret lights while driving to
The City argued that because section 114-b defines an "emergency operation" to
include the response to a "police call" and the officers were responding to a
911 call for assistance relayed to them by a police dispatch, this 911 call was
a "police call" and the officers were therefore involved in an "emergency
operation" when the traffic accident occurred. Plaintiff urged the Court to
interpret section 114-b less literally so as to take into consideration the
nature of the Police Department's own classification of this particular dispatch
as a "non-crime," "non-emergency" call.
The Court declined plaintiff's invitation to engraft the suggested nuance on
the phrase "police call": "Although section 114-b does not define the phrase
‘police call,' we see no reason why a radio call to officers on patrol by
a police dispatcher regarding a 911 complaint should not fall squarely within
the plain meaning of that term, nor do we discern any legislative intent to vary
the definition of ‘emergency operation' based on individual police
department incident classifications" (
, at 157). Further, whether the police officer
driving the patrol car had violated any departmental policy in responding to
this particular police call "‘would [merely] be an important, although not
dispositive, factor in determining whether [he] had acted recklessly'"
, at 158, quoting Saarinen
at 503, n 3).
Similarly, this Court sees no reason to qualify or narrow the meaning of the
word "pursuing" as used in Vehicle and Traffic Law § 114-b. It would
hardly promote the legislative purpose informing section 1104 or public safety
to deem this provision's exemption from ordinary negligence inapplicable to
Contino, whose method of pursuit was, after all, aimed at short-circuiting a
potentially more dangerous chase.
Next, to the extent that claimant attributes her accident to an ill-contrived
plan, whether to capture the absconder on Clinton Avenue or elsewhere and
exactly how to go about doing it were "matter[s] of governmental policy that
‘may not be reviewed in a personal injury action founded on negligence,'
at least in the absence of irrationality" (
, at 504, quoting McCormack v City of New
, 80 NY2d 808, 811). Insofar as Jansen
may be read to suggest
otherwise, it is clearly no longer good law.
Claimant also states, without elaboration, that the police breached a special
duty owed to her. This is not a case, however, where claimant suffered injuries
as a result of an alleged failure to furnish her with police protection (
Cuffy v City of New York
, 69 NY2d 255 [setting forth elements of special
duty exception to general rule that municipality is not liable in tort for
injuries resulting from simple failure to provide police
As a final matter, the Court does not find claimant to be blameless: she braked
her car to a full stop in moving traffic. She does not contend that she was
forced to do so because westbound traffic ahead of her halted abruptly, or that
her forward progress was otherwise impeded in any way. She does not claim that
she tried to pull her vehicle over to the right because she heard a siren (there
was none) or because she saw any flashing emergency lights (she does not seem to
have seen the emergency light on the dashboard of Contino's car [T 33-34]).
Rather, claimant testified that she brought her car to a standstill because she
saw "three or four men . . . dressed like SWAT team members" and armed with
"[b]ig guns" exit from the back of the van, which was pulled up in the opposite,
eastbound lane (T 29). While this sight was no doubt startling and might have
caused an observant and cautious motorist to slow down temporarily, it presented
no reason for claimant to stop her car outright in moving traffic, an action
that inevitably placed her and motorists following behind her at risk for a
B. Serious injury
New York's no-fault law precludes recovery for non-economic loss arising out of
negligence in the use or operation of an automobile unless the injured party has
suffered a "serious injury" as defined by statute (Insurance Law §§
5102 [d], 5104). Here, claimant contends that she meets this threshold because
she suffered a medically determined injury or impairment to her neck and back,
and particularly her right shoulder and right hand, of a non-permanent nature,
which prevented her from performing substantially all of the material acts that
constituted her usual and customary daily activities for 90 of the 180 days
immediately following the accident on October 3, 1996 (the so-called "90/180-day
rule" of Insurance Law § 5102 [d]).
In order to prove a serious injury within the meaning of the 90/180-day rule,
claimant must establish that she has been "curtailed from performing [her] usual
activities to a great extent rather than some slight curtailment" (
Licari v Elliott
, 57 NY2d 230, 236); that her inability to perform
"substantially all" of her customary and usual daily activities was "medically
indicated" (Relin v Brotherton
, 221 AD2d 840, 841); that medical proof
connects the purported inability to engage in her customary and usual daily
activities to her alleged accident-related injuries (Honig v State of New
, 235 AD2d 779); and that this medical proof consists of "objective
medical findings" and not just claimant's subjective complaints of pain
(Bennett v Reed
, 263 AD2d 800).
Claimant has not established these
elements on the testimony (no physician testified on claimant's behalf) or other
evidence, most notably the medical record, which the Court has extensively
As an initial matter, the evidence establishes that, despite what claimant
consistently recounted to various health-care providers, her vehicle was not
struck by a car traveling at a speed of 40 to 50 m.p.h. Contino's description
of how the accident occurred, which is supported by the minimal visible damage
to his vehicle, leads the Court to conclude that he was driving at a very slow
rate of speed (he estimated 5 m.p.h.) when the front right bumper of his car
"tipped" the rear bumper of claimant's vehicle as he was pulling around her
after having come to a complete stop when the westbound traffic in front of him
Further, assuming that the various chiropractors who treated or examined
claimant and Lazaro, the neurologist to whom Guerra referred her in December
1996, took a complete history and accurately reported what she told them,
claimant was less than forthcoming. She had been involved in a rear-end
collision six or seven years earlier, as a result of which she suffered a
strained neck and went on disability leave and received physical therapy for six
months (T 47-48, 75-76). Nonetheless, claimant denied any prior
accident-related history when she was examined by Lazaro (clt. exh. 2-00085);
she acknowledged the accident and a "short period" of physical therapy (although
seemingly not the disability leave) to Tirella, a chiropractor, but disclaimed
any "apparent injuries" (clt. exh. 2-000331). Moreover, claimant seems not to
have fully informed any of her doctors of her potentially relevant job history:
she testified that she worked as a mail carrier both before and after the
earlier automobile accident, a job that required her to carry a sack of mail
weighing 40 to 50 pounds over her right shoulder--the shoulder in which she
continues to complain of pain--for a distance of 16 miles each day.
Next, claimant was capable of driving herself to Albany Medical Center Hospital
after the accident. She was found to have sustained no fractures or
dislocations of the right shoulder or thoracic spine (clt. exh. 2-0001-0007,
00013) and was diagnosed as having suffered "back and shoulder strain" (clt.
exh. 2-0009) for which pain medication and a muscle relaxer were prescribed.
The only specific accident-related limitations that Guerra, the chiropractor
who treated claimant for several months, ever imposed on her were "no heavy or
overhead lifting, no push-pull activity, avoid prolonged positions" (clt. exh.
2-00079-00083). Claimant was not confined to bed except for perhaps the first
three days after the accident (T 41, 69;
, T 70-71, 80-81 and clt. exh. 2-000287); she stayed with her
parents for the six months after the accident because it was "more convenient"
since her husband was working long hours (T 37); she was always able to care for
herself, but was unable to perform some unspecified household duties (T 72-73;
clt. exh. 2-000110). She was not, however, able to lift her son, who weighed
about 20 pounds at the time, and she received medically authorized
household/childcare assistance for four hours a day for five days a week from
October 1996 until about mid-June 1997. But these restrictions and the
provision of household/childcare assistance alone are insufficient to establish
serious injury pursuant to the 90/180-day rule (Curry v Velez
, 243 AD2d
442 [on motion for summary judgment, plaintiff failed to raise a triable issue
of fact with respect to the 90/180-day rule when she missed four weeks of work
after her accident and was thereafter only restricted from lifting heavy
packages]; Coon v Brown
, 192 AD2d 908 [need for home health assistance,
even if continuing for statutory period, does not in and of itself establish an
inability to perform substantially all of one's customary and usual daily
Guerra certified claimant as "totally incapacitated" for the period October 7,
1996 through April 7, 1997 (clt. exh. 2-00077-00078), but he never opined that
claimant was unable to engage in substantially all of her customary or usual
daily activities for 90 of the 180 days following the accident, or related any
disability to objective medical findings. Moreover, Storey, defendant's medical
expert, expressed his opinion that, based on a neurological examination of
claimant and his independent review of the diagnostic tests performed on her in
the fall of 1996, she had only "suffered some muscoloskeletal strain" as a
result of the automobile accident, which improved with time (def. exh. A). This
finding is completely consistent with the diagnosis made by the physicians who
examined claimant at Albany Medical Center Hospital immediately after the
accident took place.
In summary, claimant's proof of serious injury consists principally of
subjective assertions of accident-related pain, which has persisted such that
she is "not the same person" she once was (T 59). The testimony and evidence,
however, fall far short of the proof required to establish a serious injury for
purposes of the no-fault statute's 90/180-day rule.
Based on the foregoing, the
Court holds that as a matter of law Contino, the driver of an authorized
emergency vehicle, was involved in an emergency operation when the right front
bumper of his vehicle touched the rear bumper of claimant's car (Vehicle and
Traffic Law § 1104 [a]); and further that, again as a matter of law, he did
not act with reckless disregard for the safety of others during this emergency
operation (Vehicle and Traffic Law § 1104 [e]). In any event, claimant has
not made a threshold showing of serious injury within the meaning of the
90/180-day rule of the no-fault statute (Insurance Law § 5102 [d]). The
Court therefore now grants defendant's motion to dismiss the claim for failure
to establish a prima facie case of negligence, which was made at the close of
claimant's proof and on which decision was reserved. Any motions on which the
Court previously reserved judgment or which were not previously decided are
denied. The Chief Clerk is directed to enter judgment accordingly.
April 16, 2002
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims
"T" followed by a number(s) refers to the
corresponding page(s) of the trial transcript.
The records indicate that GEICO paid for
childcare for claimant from 7:00 A.M. until 11:00 A.M. for five days a week
(clt. exh. 2-000199-000239); claimant testified, however, that she received paid
assistance from about 9:00 A.M. until 4:30 P.M. daily (T 41-42).
Ermacor may have meant Albany Medical Center
rather than Albany Memorial Hospital: he identified claimant's x-rays of
October 3, 1996 as having been taken at Albany Memorial Hospital when they were,
in fact, taken at Albany Medical Center.
As noted previously, Guerra had released
claimant from his active care the previous month (clt. exh. 2-00057).
"DT-C" followed by a number (s) refers to the
corresponding page(s) in the transcript of Contino's deposition, conducted on
June 27, 2000 (clt. exh. 1).
This circumstance had caused a potential
revision to the plan, according to Contino: "And when I saw the school bus, the
plan was changed. If the school bus should be there [when the taxi arrived], we
were not going to attempt to arrest that individual at that point in time. We
were going to follow him to the bus station" (DT-C 29; see also
, DT-C 19,