New York State Court of Claims

New York State Court of Claims

DALE & GERE v. THE STATE OF NEW YORK, #2003-019-006, Claim No. 98032


Synopsis


Court finds that State Troopers did not act in reckless disregard in violation of Vehicle & Traffic Law 1104 in conducting high speed police chase that ended in death of passenger in fleeing vehicle. Claim dismissed.

Case Information

UID:
2003-019-006
Claimant(s):
WANDA DALE and BRENT GERE, individually and as parents and natural guardians of Jessica Gere, deceased, as distributees of Jessica Gere, and as Limited Co-Administratrices of the Estate of Jessica Gere
Claimant short name:
DALE & GERE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98032
Motion number(s):

Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
WILLIAM M. HIGGINS, ESQ. & MICHAEL W. MALARNEY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 30, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Wanda Dale and Brent Gere bring this Claim against the State of New York, individually and as parents and natural guardians of Jessica Gere, deceased (and as distributees of Jessica Gere, and as Limited Co-Administrators of the Estate of Jessica Gere). The Claim alleges that their daughter Jessica Gere died as a result of the negligence of the New York State Police when a vehicle in which she was riding and being driven by one Adam Kitt, overturned after a high-speed police chase. The trial of this Claim, held in the Binghamton District on December 18, 2002, was bifurcated. Consequently, this Decision addresses the issue of liability only.


Briefly, this Claim arose from a fatal one car crash which occurred on November 1, 1996, following a high-speed police pursuit in which the front seat passenger in the pursued vehicle, 15 year old Jessica Gere, was killed after said vehicle lost control and flipped end-over-end. The police chase involved three separate State Trooper cars operated by State Troopers Mark D. Miller, Robert J. Hodges, and Paul J. Welytok, as well as a fourth police vehicle operated by the Village of Wayland Police Officer John M. Adams.


By a prior motion decision of this Court (Motion No. M-63714) issues for trial were limited to whether the conduct of the New York State Police rose to the level of reckless disregard under Vehicle and Traffic Law Section 1104 and, if so, was such reckless disregard a probable cause of the accident which resulted in the death of Jessica Gere.


At trial, Claimant called Trooper Mark D. Miller, an eleven-year veteran with the New York State Police Department. Trooper Miller testified that on November 1, 1996 at approximately 12:00 noon, he was on patrol on Route 36 north in Groveland, New York. At that time he observed a white Oldsmobile vehicle near Groveland Correction Facility. He saw this vehicle traveling slowly and cross the center line on several occasions. This white vehicle then made a left-hand turn onto Craig Drive and again crossed the center line of the road. The Trooper followed the vehicle onto Craig Drive which was a restricted area surrounding the Groveland Correctional Facility. It was the Trooper's intent to stop the vehicle and inquire as to the conduct of the driver and its occupants. The vehicle then turned into a driveway on Craig Drive and stopped. The Trooper backed his vehicle onto Greenburg Street where he was able to view the white Oldsmobile. That car then pulled out of the driveway and drove back down Craig Drive. The Trooper followed but did not attempt to stop the vehicle at that time. The Oldsmobile then made a right turn onto Route 36 south as did the Trooper who by now had activated his emergency lights. He followed the vehicle for roughly a mile to a mile and a half on Route 36 to the Route 390 entrance ramp. The Oldsmobile slowed and started to pull off the shoulder and then suddenly accelerated. The Trooper could see that there were four occupants in the vehicle and, although he did not get a good look at them, he believed that they were teenagers. The vehicle then entered the entrance ramp to Route 390 south at Exit 6. It made an abrupt right onto Route 390 south, at too high of a speed, causing the vehicle to spin 180
Ε
. The vehicle then veered off the entrance ramp, traveled down the adjacent embankment, and entered onto Route 390 south. The witness pursued the vehicle by entering Route 390 south by way of the entrance ramp. The Oldsmobile was in front of the Trooper's vehicle and the Trooper notified the State Police Station in Henrietta of his pursuit of the same. His vehicle became the primary pursuit vehicle in control of the chase. Trooper Miller testified he had reason to stop the vehicle for failure to keep right (Vehicle and Traffic Law § 1120 [a]), entering the restricted area of the Groveland Correctional Facility (Trespass, Penal Law § 140.05), and failure to comply with an emergency vehicle (Vehicle and Traffic Law § 1144). As the pursuit continued, the speeds came close to or exceeded 100 mph. Trooper Miller asked for assistance and inquired whether there were any available emergency vehicles to join the pursuit. Trooper Robert J. Hodges responded that he was available and located on the median near Exit 5 just several miles ahead of the chase. Approximately six miles into the chase Trooper Miller observed Trooper Hodges enter the passing lane from the median ahead of the white Oldsmobile. The Oldsmobile did not slow and moved into the driving lane passing Trooper Hodges on the right. Trooper Miller estimated Trooper Hodges' speed at that time to be between 55 and 65 mph, with the Oldsmobile traveling in the range of 90 to 100 mph. Trooper Hodges then activated his siren and lights and fell in behind Trooper Miller. The chase continued for approximately six more miles when the entourage was joined by Trooper Welytok, who was also on Route 390 south. Trooper Welytok was observed to straddle the driving and passing lanes in an attempt to slow the Oldsmobile. However, the vehicle did not slow and Trooper Welytok let the vehicle pass by pulling to the side of the roadway. As they approached the Wayland Exit (Exit 3), Trooper Miller saw another police vehicle. The witness observed this white police vehicle just beyond the entrance ramp at Exit 3. The police vehicle was also straddling the center line although the witness had no idea who was operating this vehicle since he was only in communication by radio with the State Police substation in Henrietta. He had not been advised of any other agencies' involvement in the chase. Moreover, the witness testified he never asked for assistance from another agency and no one else had requested this fourth police vehicle to join the chase to his knowledge. Moreover, the witness stated he never heard a request from any of the other Troopers in this case for outside assistance.


As the white police vehicle was traveling 55 to 60 mph and straddling the center line of the roadway the white Oldsmobile approached the same at approximately 100 mph. The brakes came on briefly and the Oldsmobile made a sharp move to the right passing this newly entered police vehicle and going off onto the right-hand shoulder of the roadway. Once past the police vehicle, the Oldsmobile attempted an abrupt left turn onto a highway maintenance U-turn area. The vehicle began to spin out of control skidding into the maintenance U-turn area, rolling end-over-end, and coming to rest on the east shoulder of the northbound lanes of Route 390, bringing this chase to a tragic conclusion. Trooper Miller testified that during the course of this pursuit the State Police vehicles passed other civilian vehicles on the highway, approximately twelve to fifteen in number, and fortunately had no close encounters with the same.


Trooper Robert J. Hodges, Jr., a thirty-year veteran with the New York State Police basically mirrored the testimony of Trooper Miller, as to his conduct and the actions of the white Oldsmobile during the course of the chase. However, Trooper Hodges did recall that during the course of the chase he received a transmission or had a transmission with someone saying "they should get in front of the vehicle".[1]
Trooper Hodges did not have the identity of the transmitter, however he replied "we've tried it and it didn't work". However, he recalled no specific request for any outside person or agency to intervene in this highspeed chase.

Trooper Paul J. Welytok testified that he was ahead of the pursuit and had positioned his patrol car across the center line of the southbound driving lanes at a speed of approximately 55 to 65 mph. Trooper Welytok attempted to execute what is referred to as a "rolling" or "moving" roadblock. When it became apparent to Trooper Welytok that the while Oldsmobile, still traveling between 90 and 100 mph was not going to slow, the Trooper abandoned his attempt at a moving roadblock by moving his vehicle back into the driving "right" lane. This allowed the Oldsmobile to shoot past Trooper Welytok in the passing lane. Trooper Welytok then joined in the chase by getting in line behind Troopers Miller and Hodges.


As the pursuit continued down Route 390 south, all three Troopers Miller, Hodges and Welytok, observed a white police vehicle, which they later learned was operated by Village of Wayland Police Officer John M. Adams, enter Route 390 south from the entrance ramp ahead of the pursued vehicle as well as the trailing Trooper vehicles. They observed Officer Adams execute or attempt to execute a "moving" roadblock at approximately 50 to 60 mph, straddling the center line between the passing and driving lanes. The Village of Wayland Police vehicle maintained this position as the white Oldsmobile approached without reducing speed. The Troopers observed the white Oldsmobile hit his brakes and then swerve to the right in an attempt to pass the Village of Wayland Police vehicle on the shoulder. Photographs submitted into evidence at trial (St. Exs. D, G-L, & N), do show tire marks and skid marks on the shoulder of the roadway as well on Route 390 as the vehicle moved ahead of the Village of Wayland Police vehicle.


Village of Wayland Police Officer John M. Adams testified at trial regarding his involvement in this high-speed pursuit. He testified that he was working that day as he had in the past as a part-time Wayland Police Officer working approximately 20 hours per week or less. He was in his police vehicle when he heard radio transmissions regarding a high-speed pursuit occurring on Route 390. While his testimony at trial was uncertain or unclear and his memory has long since faded, his testimony at his examination before trial (Cl. Ex. 23) was offered and received by the Court. The Officer's testimony as to how he got involved in the chase is enlightening.
  1. Let me ask this. I am sorry to keep interrupting you, but did anyone ask you to do this?
  2. Not at that time, no.
  3. You did this on your own volition?
***
  1. What is "volition"?
  2. Your own action, you took your own action doing this without direction or instruction by anyone else?
  3. Correct.
  4. Go ahead, I am sorry.
  5. While waiting on the ramp to make sure nobody got on, I was listening to the radio transmissions and I remember hearing something about he got by the cars and was ahead of him. And I radioed back to one of the troopers and asked if they wanted me to try and get ahead of him.
  6. Who [sic] did you radio to?
  7. I don't remember specifically. I remember a transmission coming back from one of the trooper cars stating "go ahead and try to get ahead of him" and then - -
  8. One of the State Troopers told you to go ahead and try and get ahead of him?
  9. Yes, sir.
  10. Do you recall that to be Trooper Hodges?
  11. I believe it was Bob Hodges, yes. I am going from voice recognition. I have worked with Trooper Hodges since I started with the Cohocton PD.
  12. So Trooper Hodges instructed you to go ahead and try and get ahead of the vehicle they were pursuing?
  13. I believe it was Trooper Hodges, yes.
  14. But in any event, it was a State Police Trooper who instructed you to get ahead of the vehicle?
A. Yes, sir.


(Cl. Ex. 23, pp 21-23).

Sergeant Timothy Coughlin, of the New York State Police also testified, indicating that he was the Henrietta Zone Sergeant on duty on November 1, 1996, during the course of this high-speed pursuit. The witness testified he was monitoring radio transmissions and following this pursuit from the Henrietta substation. He testified that he was fully familiar with the New York State Police Field Manual (Cl. Ex. 1), regarding pursuit driving. While the manual indicates that only two troop vehicles should be involved in a high-speed pursuit, it is up to a supervisor to request more. Here the witness testified that a "rolling roadblock" would require four vehicles, therefore Sergeant Coughlin was looking for available cars. The witness did not recall, however, requesting or approving the Village of Wayland Police Department to enter this pursuit. Nor does he recall any request for assistance to any outside agencies. Therefore, the testimony between Officer Wayland and New York State Police Sergeant Coughlin, is somewhat at odds in that it is not clear whether assistance was gratuitously offered or requested, and if so, by whom. In any event, it remains uncontroverted that this chase lasted approximately fifteen minutes in length with speeds in excess of 100 mph.


Defendant offered the accident report of Troop Sergeant James J. Buchholz (Ex. T) in a redacted form. The State Police synopsis of the accident indicates that a single vehicle roadblock was established by the Village of Wayland Police Department by attempting to straddle the center line of the southbound lane. However, the pursued vehicle passed the Wayland Police car on the right without making contact. The vehicle then went out of control, overturned several times ejecting one passenger and partially ejecting another. The partially ejected passenger, Jessica Gere, had been partially pinned underneath the vehicle through the sunroof that had been broken out during the rollover prior to its final rest. The partially ejected passenger, Jessica Gere, subsequently died of her injuries. The investigation by Sergeant Buchholz concludes that based upon evidence at the scene, various speed estimates, and statements, that the vehicle involved in the collision was traveling at a high rate of speed when passing the Wayland Police vehicle on the right. After entering into the shoulder area of the roadway, the vehicle lost control due to speed and perhaps driver inexperience, resulting in the rollover type collision with the attendant tragic results.

It is the Claimants' position that the State Police violated the standard set forth in Vehicle and Traffic Law Section 1104, as well as the State Police Field Manual and Regulations (Cl. Ex. 1), concerning police chases. More specifically, Claimants allege that the Troopers violated the following provisions of the State Police Field Manual: 1) Section 30B2 (e) (7), which states that no more than two vehicles should be engaged in a pursuit absent a supervisor's direction; 2) Section 30B2 (j) (1), which states that no outside agency should be involved in a pursuit absent supervisory approval; 3) Section 30B2 (d) (2), stating that the nature of the offense should be considered before initiating a pursuit and on a continuing basis; and finally 4) Section 30B2 (f) (3), stating that moving roadblocks should only be used with supervisory approval unless extraordinary or life threatening circumstances exist. Of prime factual importance, and over which the parties disagree, is whether the New York State Police via Trooper Hodges or Sergeant Coughlin directed Wayland Police Officer Adams to attempt a moving roadblock. In addition, the substance of the radio transmissions between the Trooper and the Village Police Officer and various radio dispatches remains uncertain. However, Officer Adams believes that Trooper Hodges approved or requested his involvement in this roadblock and pursuit. Trooper Hodges himself conceded that it was not "impossible" that he gave such permission. However, it does not appear from the testimony that any of the Troopers sought the permission of the supervisor before requesting Officer Adams (if in fact they did) to join the chase or to set up a moving roadblock.


Claimants allege these violations of the New York State Police Field Manual (Cl. Ex. 1) under this factual scenario rise to the level of reckless disregard in violation of Section 1104 of the Vehicle and Traffic Law. Moreover, Claimants allege that it was this reckless disregard on the part of the New York State Police that was a proximate cause of the resulting loss of control and the ensuing accident which resulted in the unfortunate death of Jessica Gere.


It is a well-established principal that "[a] police officer engaged in a high-speed pursuit of another vehicle must comply with the restrictions set forth in Vehicle and Traffic Law § 1104, as well as [various] departmental procedures [citations omitted]."
(King v Village of Cobleskill, 237 AD2d 689, 690). Moreover, Vehicle and Traffic Law Section 1104 specifically states that a driver of an authorized emergency vehicle is not relieved 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. (Vehicle and Traffic Law Section 1104 [e]). That standard was reaffirmed in Saarinen v Kerr, 84 NY2d 494, in which the New York State Court of Appeals 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. This standard demands more than a showing of a lack of "due care under the circumstances"
&
the showing typically associated with ordinary negligence claims. It 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 [citations omitted].

(Saarinen, 84 NY2d at 501).

The aforementioned cases, as well as Section 1104 of the Vehicle and Traffic Law, demonstrate a legislative and judicial intent that allows operators of emergency vehicles certain privileges so they may carry out their important responsibilities. However, it is equally clear that operators of emergency vehicles must comply with the restrictions set forth in Vehicle and Traffic Law Section 1104, as well as departmental procedures. (
Palella v State of New York, 141 AD2d 999; Kerwin v County of Broome, 134 AD2d 812, lv denied 71 NY2d 802; King, 237 AD2d 689).

Among the factors to be considered in order to determine whether conduct rises to the level of reckless disregard are: 1) the nature of the original offense[2]
; 2) the length of miles of the chase; 3) the duration and time of the chase; 4) the weather conditions; 5) road conditions; 6) traffic volume; 7) neighborhood characteristics; 8) visibility; and 9) speed. (see, Cl. Ex. 1). On the facts presented in this case, although the nature of the original offenses may have only been Vehicle and Traffic Law violations and Penal Law violations, there is no question in the Court's mind that the conduct of the white Oldsmobile aroused sufficient suspicion on the part of Trooper Miller that he was duty-bound to stop the vehicle and investigate the driver and his conduct. It was the subsequent actions of Adam Kitt, in attempting to flee the otherwise lawful investigatory stop that led to the high-speed chase. Here that chase consisted of 17 miles for a period of approximately 15 minutes. It was noon, on a dry relatively clear day, and traffic conditions on this four-lane highway were light. In fact during the course of the chase, the Troopers testified that they passed no more than twelve to fifteen vehicles. Moreover, all of this chase occurred in rural setting with relatively high and unobstructed visibility. The speed of the vehicles, unfortunately, approached or exceeded 100 mph through no fault of the Troopers but rather due to the attempt to flee by Adam Kitt.

Based upon the testimony at trial, Section 1104 of the Vehicle and Traffic Law, and the pronouncements of the Court of Appeals in the
Saarinen case, the Court does not believe that the actions of the New York State Police in engaging the white Oldsmobile in a high-speed pursuit was, at its inception, the equivalent of reckless disregard. Rather, on the facts as known to Trooper Miller at the time he engaged pursuit, the initial attempt to stop the Kitt vehicle was clearly reasonable and not "[a]n 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...with conscious indifference to the outcome [citations omitted]." (Saarinen, 84 NY2d at 501). Rather it was standard investigatory State Police patrol work to stop a vehicle acting in a suspicious manner violating the Vehicle and Traffic Law and entering a restricted area of a State correctional facility. In fact, to ignore the conduct of the Kitt vehicle and not attempt an investigatory stop would, on these facts, have been unreasonable.

What has been more problematic to the Court is whether or not the State Police during the course of their high-speed pursuit of the Kitt vehicle, violated their own Field Manual: 1) in attempting numerous rolling roadblocks after the first had failed; and 2) requesting the assistance of an outside agency without appropriate supervisory authority as required under Article 30B2 of the New York State Police Field Manual. (Cl. Ex. 1). Claimants allege that there was a clear violation of Field Manual Article 30B2 (j) (1). That section states that no outside agencies shall be involved in a pursuit without supervisory approval. Here the testimony is clear that the supervisor in charge, Sergeant Coughlin, did not at any time request the assistance of an outside agency with regard to a third moving roadblock. To the contrary, even Officer Adams at deposition believed that any request came not from Sergeant Coughlin the zone supervisor, but rather from Trooper Hodges who was the second officer to get involved in this high-speed pursuit chase. Additionally, Field Manual Section 30B2 (e) (7) states that no more than two emergency vehicles should be engaged in pursuit absent supervisory direction. The testimony here remains unrefuted that there were at least four vehicles involved in this chase and there does not seem to be any direct testimony indicating a request or direction from the Troop supervisor authorizing these multiple cars. Furthermore, Field Manual Section 30B2 (f) (3) requires that moving roadblocks be used only with supervisory approval unless extraordinary life-threatening circumstances exist. Here the Court does not believe that any extraordinary life-threatening circumstances existed and is not satisfied that supervisory approval was in fact given for any of the Troopers or Officer Adams from the Wayland Police Department to attempt a rolling roadblock with respect to the Kitt vehicle.


Therefore, assuming that these various sections of the New York State Police Field Manual were in fact violated by the Troopers, was that conduct sufficient to establish reckless disregard on the part of the Troopers. A brief discussion is warranted regarding the admissibility and
,
/or weight to be accorded the guidelines contained in the State Police Manual. The State cites several cases to support its contention that the State Police Manual does not establish nor is it admissible relative to the standard of care. (
Merino v New York City Tr. Auth., 89 NY2d 824; Perry v New York City Tr. Auth., 209 AD2d 392; Pascarella v City of New York, 146 AD2d 61, lv denied 74 NY2d 610). These cases are distinguishable, however, from the case at bar since those cases involved internal guidelines which imposed a higher standard of care than applicable at law. The general rule is simply that "[i]nternal rules and manuals are admissible as some evidence of whether reasonable care was exercised only if they do not impose a higher standard of care than that which is imposed by law [citations omitted] [emphasis added]." (Conrad v County of Westchester, 259 AD2d 724, 725). As such, as long as the State Police Manual does not impose a higher standard than reckless disregard, which this Court finds it does not, then a violation of said Manual becomes "[a]n important, although not dispositive, factor in determining whether [the State Police] had acted recklessly [citation omitted]." (Saarinen, 84 NY2d at 503, n 3). As such, this Court may consider whether these Troopers violated the State Police Manual.

There can be no doubt based upon the credible evidence presented at trial that Troopers Miller, Hodges and Welytok violated the State Police Manual sections 30B2(d)(2); 30B2(e)(7); 30B2(f)(3); and 30B2(j)(1) as more fully detailed hereinabove. Thus, the question becomes whether these violations, in and of themselves amount to reckless disregard. The Court believes they do not.


Reckless disregard requires evidence that " ‘[t]he 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 [citations omitted]." (
Saarinen, 84 NY2d at 501). Here various State Police Officers observed extremely erratic and dangerous driving on the part of Adam Kitt. The State Police were therefore duty-bound to investigate and to use whatever reasonable means were at their disposal, including pursuit, to stop the Kitt vehicle's lawless progression. In fact, the actions of Adam Kitt, when viewed from the standpoint of the various Troopers involved, amount to far more than a series of a few minor traffic infractions. This high-speed pursuit over seventeen miles; speeds in excess of 100 mph; failure to obey emergency vehicles; and Kitt's out-of-control entrance onto Route 390 south suggest a number of serious issues regarding Kitt's ability to operate his vehicle or why that vehicle was out of control. It is clear that Adam Kitt's actions on the public highways posed a significant threat to public safety. Under these circumstances, the New York State Police have the absolute right and are duty-bound to use whatever means are necessary, short of the above-referenced recklessness, to overtake and stop the offending driver. (Saarinen, 84 NY2d 494). When viewed against the standard of "reckless disregard for the safety of others", the Court believes that the conduct of the Troopers did not overreach the limits prescribed by law. While it is true that various provisions of the State Police Manual were violated, that in and of itself is not dispositive of the issue of reckless disregard. Rather, in balancing all of the facts and circumstances presented, the actions of the State Police, even if in violation of their own manual, do not in the Court's view rise to the level of reckless disregard. While the actions of the State Police clearly did involve some risk, this Court finds that it was a risk that the State Police were not only entitled to, but duty-bound to take "[i]n the interest of stopping a motorist whose conduct on the road presented a clear and immediate threat to public safety." (Saarinen, 84 NY2d at 503).

Even if the Court had found reckless disregard on the part of the State Police, the Court on these facts would still find that it was the actions of Adam Kitt that were a proximate cause of this accident. As noted above, the State Police's prior attempts at moving roadblocks led to Kitt swerving around the troop vehicles without reducing his speed. However, in none of the State's attempts at a moving roadblock prior to the last one, did Kitt attempt to change the direction of his vehicle by 180
Ε
while maintaining a high rate of speed. After the last attempted moving roadblock, Kitt safely passed Police Officer Adams' vehicle and drove on the shoulder, as he did before. This third time however, he attempted a sharp left-hand turn through the maintenance U-turn area of the divided highway while continuing at a high rate of speed in an apparent attempt to change direction and further evade police. No direct vehicular movement on the part of the New York State Police or Officer Adams caused the Kitt vehicle to take such an evasive maneuver. The Court finds it was this maneuver by Kitt, after completely clearing Officer Adams' vehicle, that proximately caused the loss of vehicular control and subsequent end-over-end accident.


Even if the State Police had acted in reckless disregard, which they did not, it is well settled that "[a] negligent defendant may be relieved of liability if the plaintiff's own conduct,
or that of a third party, has intervened to 'break [] the chain of causal connection' between that defendant's breach of duty and the ensuing injury (Mesick v State of New York, 118 AD2d 214, 218, lv denied 68 NY2d 611)." (Miller v Town of Fenton, 247 AD2d 740, 741; emphasis added; see also Grover v Town of Montour, 252 AD2d 859, 861). Here, the Court finds that the conduct of a third party, namely Kitt, in attempting to maneuver his vehicle through a sharp left-hand turn in order to change direction, while traveling at a high rate of speed constitutes such an intervening cause that was "[s]o reckless or unforeseeable that it is unreasonable to hold the defendant responsible for the resulting damages [citations omitted]." (Miller, 247 AD2d at 741).

The Court, of course, is mindful of the tragedy that has befallen the Dale and Gere families, but is governed by the evidence and must apply the applicable law which here does not support a finding of liability. Consequently, this Claim must be DISMISSED.


LET JUDGMENT BE ENTERED ACCORDINGLY.


June 30, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Unless otherwise indicated, all quotations are from the Court's trial notes.
[2]It was subsequently learned that Adam Kitt had stolen the white Oldsmobile in which he was driving at the time the State Police engaged in their pursuit. However, at the time Trooper Miller engaged in pursuit, he had no knowledge that the white Oldsmobile was stolen, which obviously was a much more serious offense.