Affirmation in Opposition of Robert K. Greenough, Jr., Esq. 4
In the filed claim, claimant alleges that she sustained personal injuries when
she was injured in a motor vehicle accident which occurred on February 24, 2000,
at approximately 9:50 p.m., in the Town of Sterling, County of Cayuga. As the
basis of her claim for negligence, claimant alleges that a New York State
Trooper, one Eric N. Donselaar left his State Police vehicle unattended, with
the engine running and the keys in the ignition, and with claimant restrained in
the back seat of the vehicle. The vehicle was then stolen and subsequently
involved in an accident in which claimant was injured.
There are no disputes as to the essential facts surrounding this claim. On
February 24, 2000, at approximately 9:45 p.m., claimant was a passenger in a
motor vehicle operated by her husband, Gary P. Conner. Mr. Conner was stopped
for speeding by Trooper Donselaar, who administered a field sobriety test to Mr.
Conner and then arrested him for driving while intoxicated (DWI). At some point
in time, claimant left the vehicle in which she had been a passenger and
approached the police vehicle, at which time she became aware that her husband
had been arrested and that a tow truck was on route to tow the Conner vehicle.
At that point, claimant then ran back to her vehicle and drove away. Trooper
Donselaar pursued claimant, with her husband in his vehicle, and apprehended her
when she lost control of her vehicle and drove off the road. Trooper Donselaar
then placed claimant under arrest, handcuffed her, and placed her in the rear
seat of his vehicle. Before placing claimant in the rear seat, claimant's
husband, who had been in the rear seat, had to exit the vehicle, as Trooper
Donselaar apparently intended to place Mr. Conner in the front passenger
At this point, a question of fact occurs as to what Trooper Donselaar did next.
Trooper Donselaar states that he then began to walk around the rear of his
vehicle so that he could get back into his driver seat. Claimant, however,
states that Trooper Donselaar did not immediately walk back to his vehicle, but
instead walked back to the Conner vehicle, which had gone off the road, since
the engine of that vehicle was still running, the lights were still on, and the
door was open. In any event, while Trooper Donselaar was outside of his
vehicle, Mr. Conner jumped over the console in the middle of the front seat, and
drove off in the police vehicle with claimant, restrained by handcuffs, sitting
in the back seat.
A high speed, multi-county car chase then ensued, and Mr. Conner eventually
crashed the State Police Trooper's vehicle, hitting a tree. Claimant sustained
injuries, including a fractured ankle, in this accident. Immediately following
the accident, claimant, who had originally been placed in the rear seat of the
police vehicle by Trooper Donselaar, was found in the right front passenger
seat, with her seatbelt on, and with the handcuffs broken. In her affidavit
(see Item 3), claimant states that she feared for her life and climbed into the
right, front passenger seat so that she could restrain herself with a seatbelt,
and that the handcuffs must have been broken during the accident.
Claimant contends that the actions of Trooper Donselaar, by leaving his keys in
the ignition of his vehicle, and the engine running, created the opportunity for
Mr. Conner to unlawfully drive off in the vehicle, and that such actions
constitute negligence. She contends that once she was placed under custody, the
State had a duty to reasonably protect her, which duty was breached when her
husband drove off and eventually crashed the State Police vehicle.
Defendant now seeks to dismiss this claim for failure to state a cause of
action under CPLR Rule 3211(a)(7). Defendant argues, alternatively, that
the claim should be dismissed since (1) claimant cannot benefit from her own
criminal conduct, (2) the owner of a stolen vehicle is not liable for actions of
a thief, or (3) the trooper's actions cannot be viewed as "reckless" under the
provisions of Vehicle and Traffic Law, § 1104.
It is well-settled that in considering such motions, the claim must be
liberally construed, the allegations made therein must be assumed to be true,
and every favorable inference must be given to the claimant.
In this claim, it is undisputed that claimant suffered her injuries while a
passenger in a stolen State Police vehicle, following her arrest and after being
taken into custody. These allegations , supported by undisputed facts, are
sufficient, on their face, to establish a claim based upon a breach of the
State's duty to provide her with reasonable protection.
This finding, however, should not be construed by claimant as any indication
that she will ultimately be successful with her claim, since it only allows
claimant to withstand defendant's motion to dismiss. The conduct of Trooper
Donselaar must be evaluated under the totality of the circumstances which
occurred that evening, as to whether his actions at the time constituted
negligence, or even recklessness.
Accordingly, therefore, it is
ORDERED, that Motion No. M-64978 is hereby DENIED.