Claimant's Affidavit in Opposition, Attorney Affidavit in Opposition, with
Memorandum of Law in Opposition 7
This claim arose out of a motor vehicle accident which occurred on April 24,
1999, involving a vehicle operated by Milton J. White, one of the claimants
and a marked patrol vehicle operated
by New York State Trooper Casey Dolan.
On this date, at approximately 2:00 p.m. in the afternoon, claimant was
proceeding northbound on Lawville Road, in the Town of Wolcott, Wayne County,
near the intersection of New York State Route 104. Mr. White had slowed his
vehicle below the speed limit in order to turn left, across the southbound lane
of traffic, into the driveway of a residence located on the west side of
Lawville Road. As he made his turn, his vehicle was struck on the driver's side
by a patrol car operated by Trooper Dolan. Trooper Dolan had been also
proceeding northbound on Lawville Road, behind the White vehicle, and had begun
to pass that vehicle on the left by entering the southbound lane of traffic when
the collision occurred.
At the time of the accident, the weather was clear and the road pavement was
dry. The centerline of the roadway was striped to permit passing for vehicles
traveling northbound on Lawville Road.
In their claim, claimants allege that Trooper Dolan acted in a reckless and
negligent manner causing the injuries suffered by claimants. Mr. White alleges,
in addition to a property damage claim for his automobile, that he suffered
conscious pain and suffering, and mental anguish and emotional distress as a
result of this accident. In her derivative claim, Kathleen J. White also
alleges emotional and mental anguish, as well as property damage and economic
expenses. Claimants also allege that their civil and constitutional rights were
Defendant contends that it is entitled to summary judgment dismissing the claim
as a matter of law, based upon the qualified privilege provided by New York
State Vehicle and Traffic Law, § 1104(e), which exempts operators of
emergency vehicles from strict adherence to the rules of the road. Pursuant to
§ 1104(e), an operator of an authorized emergency vehicle may only be held
accountable if he or she operates the vehicle with "reckless disregard for the
safety of others".
Trooper Dolan testified in his deposition that just before the accident he had
received a radio dispatch to respond to a brush fire in Wolcott, and that he
then turned onto Lawville Road from New York State Route 104 to proceed to the
scene of the fire to render assistance. Shortly after turning onto the road,
Trooper Dolan came upon the White vehicle, also proceeding northbound. Trooper
Dolan stated that he observed the White vehicle proceeding slowly, and that he
therefore decided to pass the vehicle. He further stated that as he began to
pass, he also started to activate his emergency lights when the White vehicle
unexpectedly made a sudden lefthand turn in front of him, at which point the
vehicles collided. In his deposition, Trooper Dolan also testified that Mr.
White's rear lefthand turn signal was not blinking when he began to overtake
Based on the foregoing, defendant therefore contends that Vehicle and Traffic
Law § 1104(e), and the "reckless disregard" standard provided therein, is
applicable to the facts of this claim, and further, that Trooper Dolan's conduct
cannot be viewed in any way to have exceeded this "reckless disregard" standard.
Claimants, on the other hand, have questioned the credibility of Trooper Dolan
as to whether he was in fact dispatched to the brush fire at the time of this
collision, and that if Trooper Dolan was in fact not responding to this
situation, he is not entitled to the protection provided by § 1104(e).
Additionally, claimants contend that Mr. White's lefthand turn signal had been
activated by him, that it was functioning properly, and that Trooper Dolan's
attempt to pass the White vehicle on the left, as said vehicle attempted to make
a properly signaled left turn, amounted to reckless conduct in any event.
It is now well settled that the conduct of a police officer, when engaged in
emergency operations, must be evaluated under this "reckless disregard" standard
(Saarinen v Kerr, 84 NY2d 494). This qualified privilege allows these
officers to drive through red traffic lights, stop signs, and to exceed the
speed limit (Szczerbiak v Pilat, 90 NY2d 553). Furthermore, a police
officer on patrol, when responding to a radio dispatch, is, as a matter of law,
involved in an emergency operation, even if the emergency lights and sirens on
the police vehicle have not been activated (Criscione v City of New York,
97 NY2d 152).
In this claim, it is undisputed that a call regarding a brush fire had been
made, creating an emergency situation. The deposition testimony of Trooper
Dolan established that he received a radio dispatch regarding the fire, that he
had acknowledged the dispatch, and that he was traveling to the scene when the
accident with Mr. White occurred. The facts of this claim, therefore, fit
squarely into the qualified privilege provided by § 1104(e), and the
actions of Trooper Dolan in responding to the dispatch must therefore be
considered under the "reckless disregard" standard.
The "reckless disregard" standard has been defined as the "conscious or
intentional doing of an 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,
and done with conscious indifference to the outcome." (Szczerbiak v
Pilat, supra, at 557). Claimants argue that the conduct of Trooper
Dolan in responding to a brush fire, by passing the White vehicle on the left,
after Mr. White had activated his lefthand turn signal and slowed his vehicle in
order to make his intended lefthand turn, can be considered to be reckless.
Even after viewing the facts of this claim in a light most favorable to
claimants, however, and accepting Mr. White's statement that he had properly
activated his left turn signal (and that the rear lefthand turn signal was
operational), the actions of Trooper Dolan in passing the White vehicle in a
permitted passing zone, cannot be found to be a violation of the "reckless
disregard" standard of care. It is undisputed that the speed limit on Lawville
Road at this location was 55 miles per hour (since there were no posted speed
limit signs), that the weather was clear and the pavement was dry, and that the
pavement was marked so as to permit passing for vehicles proceeding northbound
on this road. Considering all of the circumstances, the Court must find that
the actions of Trooper Dolan cannot be found to have risen to the level of
recklessness in order for liability to attach (see, Szczerbiak v Pilat,
Finally, with regard to the remaining causes of action alleged by claimants,
the Court notes that there can be no recovery against the State for the tort of
intentional infliction of emotional distress, as such has been held to be
against public policy (Wheeler v State of New York, 104 AD2d 496).
Additionally, claimants have not made any allegations in their claim sufficient
to invoke the limited jurisdiction of this Court to hear "constitutional tort"
claims (see, Brown v State of New York, 89 NY2d 172). Accordingly, these
causes of action must be dismissed as well.
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-66501 is hereby GRANTED; and it is further
ORDERED, that Claim No. 102332 is hereby DISMISSED.