New York State Court of Claims

New York State Court of Claims

Johnson v. STATE OF NEW YORK, #2003-018-266, Claim No. 99250, Motion No. M-66959


Case Information

JANET JOHNSON, As Administratrix of the Estate of LUIS A. ROLON
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 of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 21, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant brings a motion for summary judgment pursuant to CPLR 3212. Claimant opposes the motion.

This is a claim for wrongful death arising out of a motorcycle collision with a vehicle on Herkimer Road, in the City of Utica, County of Oneida at approximately 12:10 a.m. on August 20, 1998. The claimant is the administratrix of the estate of Luis A. Rolon (hereinafter the decedent). It is alleged in the claim that the decedent was driving a motorcycle east on Herkimer Road when he struck a vehicle being driven by Darnell A. Menard as she was backing out of a driveway at 1016 Herkimer Road. The cause of the accident, pursuant to the claim, was the negligence, carelessness and recklessness of the State of New York as the result of a New York State Trooper pursuing the motorcycle at an excessive and dangerous rate of speed without any lights or sirens activated.

Defendant makes three arguments to support its position that it is entitled to judgment as a matter of law. First, public policy does not allow claimant to recover money damages because decedent's death is attributable to his conduct which was a serious violation of the law. Secondly, decedent's conduct in driving his motorcycle at an excessive rate of speed is a superceding event which would absolve the defendant of any liability. Finally, defendant argues that this case falls under Vehicle and Traffic Law § 1104, which limits liability to situations where defendant's conduct evinces a reckless disregard for the safety of others, when the alleged wrongdoing arises from the operation of a police vehicle involved in an "emergency operation."

Claimant argues, in opposition, that there are issues of fact as to whether the conduct of the State Trooper, in pursuing the decedent at a high rate of speed for almost three miles, without activating any lights or siren, was reckless conduct.

Unquestionably, summary judgment is a drastic remedy which should only be granted where there are clearly no issues of fact which need to be determined by the fact finder (
Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). The obligation of the Court on a summary judgment motion is to identify factual issues which need to be resolved. In reviewing the evidence presented, the Court must assess it in a light most favorable to the opposing party (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776). It is initially the burden of the party bringing the motion to establish entitlement to judgment, only then does the burden shift to the opposing party to come forward with evidence in admissible form to show that there are issues of fact which must be determined after a full trial (Zuckerman v City of New York, 49 NY2d, 557, 562).
After considering defendant's first argument for summary judgment, it has failed to meet its burden. The Courts have precluded tort recovery based upon public policy when the party bringing suit has engaged in unlawful conduct which "constitutes a
serious violation of the law and the injuries for which the [claimant] seeks recovery are the direct result of that violation," (Alami v Volkswagen of America, 97 NY2d 281, 285 quoting Manning v Brown, 91 NY2d 116, 120 citing Barker v Kallash, 63 NY2d 19). The Court has not been presented with evidence to find that decedent's conduct on the night of August 19 into August 20 constituted a "serious violation of the law" warranting the preclusion of any tort recovery. Clearly, decedent was traveling well in excess of the posted speed limit, a violation of Vehicle and Traffic Law § 1180. Yet, somewhat surprisingly, there is no indication, even after the accident investigation, that decedent engaged in any other illegal conduct and defendant does not point to any other criminal violations. There are no allegations that he disregarded any other traffic laws, was under the influence of drugs or alcohol, or was otherwise driving recklessly. The only contributory factor in the accident noted in the investigative report, other than his speed, was the dark face shield on decedent's helmet. Speeding, although a violation of the law, does not by itself, fall into the category of criminal conduct which would trigger the public policy prohibition on tort recovery (cf., People v Firth, 3 NY2d 472, 474 [speeding not a crime but a traffic infraction]; People v Hildebrandt, 308 NY 397, 399; People v Senisi, 196 AD2d 376, 378 [speeding without any other factor is not sufficient to find criminal negligence]; People v Paris, 138 AD2d 534, 536 [speeding alone not criminal negligence]; People v Nicol, 191 Misc 2d 711, 712 [speeding not a crime]). A distinction is made between activities which are lawful but regulated by statute and activities which are outright prohibited by statute (see Barker v Kallash, 63 NY2d 19). Performing a lawful activity in an unlawful manner does not invoke the public policy prohibition on tort recovery, but rather invokes principles of negligence and comparative negligence (see, Manning v Brown, 91 NY2d 116, 121; Barker v Kallash, 63 NY2d at 24-25; Humphrey v State of New York, 60 NY2d 742, 744). Decedent's driving at an excessive speed was a traffic infraction, but does not, without more, prevent claimant from obtaining a tort recovery.[1]
Although absconding from police custody or trying to avoid apprehension are more serious offenses, here decedent was not in police custody and in order to view decedent's conduct as an effort to avoid apprehension, Trooper Olney would have had to be pursuing decedent, and decedent would have had to be aware of Trooper Olney's presence in following him, positions which defendant readily disputes in support of its final argument for summary judgment (
see Manning v Brown, 91 NY2d 116; Barker v Kallash, 63 NY2d supra; Johnson v State of New York, 253 AD2d 274, 280 affirming 174 Misc 2d 193; Kleinhammer v State of New York, Ct Cl, J Corbett, signed September 6, 2001, Claim No. 96054, Motion No. M-61326, Cross-Motion No. CM-61514 [UID 2001-005-530]).
If decedent's conduct is such that his estate's representative's tort recovery should be precluded on public policy grounds, defendant has failed to establish this as a matter of law on the information currently before the Court.

Defendant's second argument for summary judgment also fails on this motion. Defendant argues that the decedent's conduct in accelerating to a speed of almost 100 miles per hour was so unforeseeable that it is independent and removed from any negligence of the defendant to be a superceding cause of decedent's death. This determination cannot be made by motion because there are questions of fact as to whether Trooper Olney was "in pursuit" of decedent and whether or not decedent was accelerating as a result of his awareness of the trooper behind him. If decedent was aware of the trooper following or pursuing him, then the potential for decedent to accelerate in response to the trooper's actions is not, as a matter of law, an unforeseeable act independent or far removed from defendant's actions (s
ee, Parvi v City of Kingston, 41 NY2d 553, 560; PJI 3d 2:72[2003]). There are, after all, specific police guidelines for engaging or continuing a pursuit of a vehicle avoiding apprehension, in recognition that some people choose to attempt out running an officer rather than stopping. As a result, there are issues of fact as to whether decedent's conduct was foreseeable based upon the Trooper's actions (see, Mercado v Vega, 77 NY2d 918, 920). Viewing the evidence in the light most favorable to claimant, summary judgment must be denied on this point.
Defendant's final argument for summary judgment has two components; first that this case falls under Vehicle and Traffic Law § 1104; and second, that Trooper Olney's conduct did not, as a matter of law, evince a reckless disregard for the safety of others.

The Court agrees with defendant that the conduct of New York State Trooper David Olney on August 19 - 20, 1998, must be evaluated in accordance with Vehicle and Traffic Law § 1104. Vehicle and Traffic Law § 1104 provides in pertinent part:
(a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:...

(3.) Exceed the maximum speed limits so long as he does not

endanger life or property;...
(e) The 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.

Every police vehicle is an "authorized emergency vehicle" pursuant to Vehicle and Traffic Law § 101. A police vehicle "pursuing an actual or suspected violator of the law..." is engaged in an "emergency operation," (Vehicle and Traffic Law § 114-b). Undisputedly, decedent was driving at an excessive rate of speed. The testimony of Trooper Olney establishes that he was following the decedent's motorcycle with the intent to eventually stop him (Deposition Transcript of Trooper Olney, Defendant's Exhibit C, page 85, lines 4-14). Based upon the plain language of the statute and his deposition testimony, the conduct of Trooper Olney must be evaluated based upon the reckless disregard standard, not the typical ordinary negligence yardstick (
Saarinen v Kerr, 84 NY2d 494; Campbell v City of Elmira, 84 NY2d 505; Allen v Town of Amherst, 294 AD2d 828, Csizmadia v Town of Webb, 289 AD2d 854; Mitchell v State of New York, 108 AD2d 1033).
The standard of reckless disregard "requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known and 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," (
Saarinen v Kerr, 84 NY2d at 510, quoting Prosser and Keeton, Torts §34, at 213 [5th ed]). Among the factors to be considered in determining whether a State Trooper acted recklessly in pursuing a vehicle: (1) the nature of the original offense; (2) the number of miles of the chase; (3) the temporal duration of the chase; (4) weather conditions; (5) road conditions; (6) traffic volume; (7) neighborhood characteristics; (8) visibility; and (9) speed; (Dale and Gere v State of New York, Ct Cl, J. Lebous, signed June 30, 2003, Claim No. 98032 [UID No. 2003-019-006]). A violation of the New York State Police Manual is also "[a] n important although not dispositive factor in determining whether [the trooper] had acted recklessly (Saarinen v Kerr, 84 NY2d at 503, n 3; Criscione v City of New York, 97 NY2d 152, 158; see also, Dale and Gere v State of New York, Ct Cl, J. Lebous, supra).
Here, claimant has submitted the affidavit of an expert in police procedures indicating that Trooper Olney's conduct failed to comply with specific policies of the New York State Police Field Manual regarding pursuit driving which, in the expert's opinion, evinces a reckless disregard of the known risk to others. In response, defendant's expert in police procedure submits that Trooper Olney was not in "pursuit" of decedent's vehicle, as that term is defined by the New York State Police Field Manual; and thus, he did not act in violation of any police policy. Given the countering positions of the experts
coupled with the evidence that Trooper Olney followed decedent's motorcycle which was traveling an estimated 100 mph, while he traveled between 60 to 75 mph through the City of Utica, with a posted speed limit of 30 mph, for approximately three miles, at night, with other vehicular traffic in the vicinity, without his lights or siren activated, has raised a triable issue of fact as to whether Trooper Olney acted with reckless disregard in following decedent's motorcycle on August 19 and 20 (see, Campbell v City of Elmira, 84 NY2d at 510-513; Allen v Town of Amherst, 294 AD2d at 828; but compare Csizmadia v Town of Webb, 289 AD2d at 857). Conduct measured against the reckless disregard standard "is not always or easily resolvable as a matter of law without some appropriate fact-finding forum and process," (Campbell v City of Elmira, 84 NY2d at 513). Under these circumstances, a factual determination must be made as to whether Trooper Olney was in "pursuit" of decedent, and whether he complied with police rules and guidelines in order to properly assess whether Trooper Olney acted with reckless disregard for the safety of others.
Defendant's motion is DENIED.

November 21, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion............................................................................................1

Affirmation of Christopher Wiles, Esquire, Assistant Attorney

General, in support with exhibits attached thereto.............................2

Affidavit of claimant, in opposition, with exhibits attached thereto..............3

Affidavits of John Syrotnyski and Salvatore F. Valvo in support of

claimant's position in opposition........................................................4, 5

Claimant's Memorandum of Law...................................................................6

Reply Affirmation of Christopher Wiles, Esquire, Assistant

Attorney General.................................................................................7

Defendant's Memorandum of Law..................................................................8

[1]There is an undeveloped issue of fact as to whether the decedent had his headlight activated at the time of the accident. If, in fact, he did not, his conduct might rise to the level of reckless driving which could implicate the public policy prohibition (Vehicle and Traffic Law § 1212).