New York State Court of Claims

New York State Court of Claims

CONNER v. THE STATE OF NEW YORK, #2002-009-45, Claim No. 105641, Motion No. M-64978


Defendant's motion to dismiss the claim for failure to state a cause of action was denied, on the basis that claimant, who was injured in a stolen police car operated by her husband, had alleged sufficient facts to assert a claim based upon an alleged breached of the State's duty to provide her with reasonable protection.

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:
Defendant's attorney:
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order dismissing the claim for failure to state a cause of action.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Gordon J. Cuffy, Esq., Assistant Attorney General, with Exhibits 1,2

Affidavit in Opposition of Jennifer A. Conner 3

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 seat.

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.[1]

Accordingly, therefore, it is

ORDERED, that Motion No. M-64978 is hereby DENIED.

September 30, 2002
Syracuse, New York

Judge of the Court of Claims

[1] Claimant's counsel, in his Affirmation (see Item 4, p. 5), has raised a question of fact as to whether Trooper Donselaar's actions are entitled to be evaluated under the "reckless" standard of Vehicle and Traffic Law, § 1104, and even if so, whether such actions might be considered reckless, as well as negligent. The determination as to whether § 1104 applies cannot be made solely upon the papers currently before the Court.