New York State Court of Claims

New York State Court of Claims

WATKINS v. THE STATE OF NEW YORK, #2003-028-501, Claim No. 102198, Motion No. M-65121


Summary judgment dismissing claim granted. Trooper's conduct was measured by V&T §1104[e] reckless disregard standard.

Case Information

ERNEST WATKINS and MAUREEN WATKINS, his wife The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
COLLINS & COLLINS, P.C.BY: Brian Reddy, Esq.
Defendant's attorney:
BY: Paul F. Cagino, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers[1] were read on Defendant's motion for summary judgment pursuant to CPLR 3212 dismissing the Claims:

1) Notice of Motion and supporting Affidavit of Assistant Attorney General Paul F. Cagino (Cagino Affidavit) with annexed Exhibits A- T, filed April 30, 2002 and Defendant's Memorandum of Law;

2) Affirmation in Opposition of Brian Reddy, Esq., (Reddy Affirmation) with annexed Exhibits 1-19, filed June 26, 2002 and Claimant's Memorandum of Law in Opposition; and

3) Reply Affirmation of Assistant Attorney General Paul F. Cagino (Cagino Reply) filed July 3, 2002.

Claimants Ernest Watkins and Gavin Cranston (Claimants) each separately commenced claims[2] seeking damages for injuries allegedly sustained when the vehicle in which they were passengers was struck by a New York State Police troop car. The Defendant has moved for summary judgment asserting the applicability of Vehicle and Traffic Law §1104 and the failure of the Claimants to sustain a serious or threshold injury within the meaning of Insurance Law § 5102. Claimants oppose the motion maintaining there are questions of fact as to the conduct of the operator of the troop car and whether Claimants sustained serious injuries. Claimants further argue that Vehicle and Traffic Law §1104 is inapplicable to the facts at bar.

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. Claimants are employed by the CSX railroad company. On April 8, 1999, Claimants reported to work at the Selkirk railyard and received their assignment to bring a train from Oak Point in the Bronx back to Selkirk. Their employer arranged for a taxi, a 1998 Ford minivan (minivan), to drive Claimants from Selkirk to Oak Point to pick up the train. The minivan, in which Claimants occupied the rear seats, was struck by a New York State Police troop car (troop car) operated by Trooper Kevin Grogan (Trooper Grogan) at the intersection of Creble Road and State Route 9W in the Town of Bethlehem, Albany County, as Trooper Grogan attempted a right hand turn from 9W onto Creble Road.

Shortly after 6:00 p.m. and just minutes before the subject accident, Trooper Grogan was patrolling northbound on 9W when he clocked by radar a southbound motorcycle at 65 miles per hour (mph) in a 45 mph zone. Trooper Grogan activated his overhead emergency lights, made a U-turn and proceeded after the motorcycle. By the time he completed the U-turn, Trooper Grogan had lost visual contact with the motorcycle. As Trooper Grogan continued to pursue the motorcycle, he activated the troop car's siren and oscillating lights, and passed another southbound vehicle. Trooper Grogan regained visual contact with the motorcycle approximately one half mile before Creble Road and observed it brake and make the right hand turn onto Creble Road. As he approached the intersection, Trooper Grogan was applying the brakes, hitting the air horn and observing vehicular movement ahead of him. He observed the minivan stopped in the eastbound lane of Creble Road at the intersection with 9W. Trooper Grogan felt the anti-lock braking system (ABS) engage as he attempted to turn onto Creble Road. The troop car crossed into the eastbound lane of Creble Road and struck a glancing blow to the minivan. Trooper Grogan regained control of the troop car and brought it to a stop on the shoulder of Creble Road.

Vehicle and Traffic Law § 1104 permits the driver of an "authorized emergency vehicle," which is defined by section 101 to include a "police vehicle" as defined by section 132-a[3], when involved in an "emergency operation," to proceed past red traffic signals and stop signs; exceed the speed limit; and disregard regulations governing directions of movement or turning, stopping, standing or parking so long as certain specified precautions are observed (Vehicle and Traffic Law, §§ 1104 [a], [b]; see also Riley v County of Broome, 95 NY2d 455, 462). It is well settled 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" (Saarinen v Kerr, 84 NY2d 494, 501; Vehicle and Traffic Law § 1104 [e]). The "reckless disregard" standard, which may be traced to Vehicle and Traffic Law § 1104, "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" (id., at 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Dibble v Town of Rotterdam, 234 AD2d 733, 735, lv denied 89 NY2d 811; Martin v Miller, 255 AD2d 816). When there is no possibility, given the facts of a particular situation, that the officer's actions could rise to the level of recklessness needed to impose liability, it is appropriate to grant summary judgment dismissing a claim (Lorber v Town of Hamburg, 225 AD2d 1062).

The first issue before the Court is whether Vehicle and Traffic Law §1104 applies to the instant Claim. There can be no dispute that the vehicle which struck the vehicle Claimants occupied was a "police vehicle" as intended by the statute. Rather, Claimants, relying upon their expert in police procedures and pursuits, Thomas M. Walton, a Deputy Chief of the Chicago Police Department (see, Reddy Affirmation, Exhibit 14 - [Walton Affidavit]) assert that based upon an analysis of State Police policy and procedures, together with depositions of Trooper Grogan and Sergeant Stumpf, Trooper Grogan was not engaged in a "pursuit" and hence was not engaged in the emergency operation of an authorized police vehicle (Walton Affidavit ¶ 4). Defendant counters by arguing, inter alia, that Trooper Grogan was duty bound to respond, using all reasonable means (Cagino Reply ¶ 7), and that the technical definition of a pursuit by the State Police is not the controlling standard of "emergency operation" (Id. ¶ 5).

Vehicle and Traffic Law § 114-b, captioned "Emergency operation," provides in full as follows:
The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service.
Recently, the Court of Appeals addressed a direct request to qualify the phrase "police call" of §114-b in Criscione v City of New York, 97 NY2d 152. At issue in Criscione was whether a patrol car en route to the location of a 911 call at the direction of the police dispatch constituted "emergency operation", where, pursuant to police department policy the responding officers considered the 911 call a "non-crime," "non-emergency" call and neither increased the patrol car's speed nor activated the patrol car's lights or siren. Plaintiff, in search of the simple negligence standard, urged the Court to take into account the Police Department's own classification of the 911 call. In declining to graft the Police Department's policy onto the phrase "police call" the Court stated there is "no reason why a radio call to officers on patrol by a police dispatcher regarding a 911 complaint should not fall squarely within the plain meaning of that term, nor do we discern any legislative intent to vary the definition of ‘emergency operation' based on individual police department incident classifications" (Criscione, supra, at 157).

Turning to the facts at bar, Claimants are asking this Court to do precisely that which the Court of Appeals rejected in Criscione, namely; graft an individual police agency's policies onto the statute. This Court finds no basis to distinguish the rationale of Criscione, as it evaluates the statutory phrase "pursuing an actual or suspected violator of the law." As such, the Court finds Trooper Grogan was "pursuing an actual or suspected violator of the law" (Schieren v State of New York, 281 AD2d 828, 831 [police officer who perceives a Vehicle and Traffic Law violation [lack of helmets], has the lawful authority to stop the individual to investigate]) and was therefore engaged in the emergency operation of his police vehicle at the time of the subject accident. Accordingly, his conduct shall be measured by the reckless disregard standard (Saarinen v Kerr, 84 NY2d 494, 501; Schieren v State of New York, 281 AD2d 828; Vehicle and Traffic Law § 1104 [e]).

The Court now turns to the issue of summary judgment. The rule governing summary judgment is well established: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; St. Lawrence County Dep't of Soc. Servs. v Genevieve VV, 2002 N.Y. App. Div. LEXIS 12681[3d Dept., December 26, 2002]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776). Once the proponent of the motion has established its entitlement to judgment, the burden shifts and the party in opposition to a motion for summary judgment "must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Izzo v Lynn, 271 AD2d 801, 802; see also, Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916).

In support of its position that the actions of Trooper Grogan were not taken in reckless disregard of the safety of others (§1104[e]), the Defendant relies, inter alia, upon the eyewitness accounts of the accident and the events leading thereto (see, Cagino Affidavit Exhibit E [deposition of Craig J. Gordinier] and Exhibit F [deposition of Charles W. Higgins]) and Trooper Grogan's account of the events (Cagino Affidavit, Exhibit A [Grogan Affidavit] ). Trooper Grogan's account detailed his actions in surveying the situation, and in particular his concern with the movement of vehicles as he pursued the motorcycle and approached the intersection with Creble Road (Grogan Affidavit, ¶ ¶ 10, 11). Grogan believed that as he commenced the turn onto Creble Road he was traveling at a speed that would permit him to safely complete the turn (Id., ¶ 12). Defendant also supplied an affidavit from Sergeant T. Bonnier, the investigating officer and accident reconstructionist, who opined that if Trooper Grogan had been going a "few miles per hour slower" or had "the approach angle a few degrees different" this accident would not have occurred (Cagino Affidavit, Exhibit B [Bonnier Affidavit] at ¶ 50). Bonnier's analysis, based primarily upon the "yaw" mark of the troop car's left front tire and the absence of other tire marks, led him to conclude that Trooper Grogan never lost control of the troop car as he was able to steer through and complete the turn, nor was he traveling at an excessive rate of speed (Bonnier Affidavit, ¶ 47). Based upon the darkening of the yaw mark and its decreasing radius, Bonnier also concluded that Trooper Grogan was applying the brakes before and while turning the troop car (Id, ¶ 46). In the Court's view, this evidence taken together is sufficient to establish that Trooper Grogan's actions on April 8, 1999, which actions were a proximate cause of this accident, were not undertaken with reckless disregard for the safety of others thereby entitling Defendant to summary judgment and shifting the burden to Claimants to raise a material question of fact.

Claimants resist the motion by primarily asserting that Trooper Grogan's excessive speed, as determined by State police investigators (Reddy Affirmation, ¶¶ 14, 22 and Exhibit 8 [Stumpf deposition]) and by Claimants' experts (Reddy Affirmation ¶¶ 23, 24), was the cause of this accident and amounted to reckless conduct, noting that Trooper Grogan failed to ascertain his speed during the attempt to overtake the motorcycle coupled with the suggestion that the right hand turn he attempted was too hard or sharp. Claimants also point to Trooper Grogan's alleged violation of "numerous provisions" of the New York State Police Field Manual (see, Reddy Affirmation ¶ 23 - Exhibit 13) and "nationally recognized standards as promulgated by the National Association of Police Chiefs" (Id.) in initiating and continuing the pursuit as further evidence of reckless conduct. Claimants also place emphasis on Trooper Grogan's apparent discipline by his superiors which resulted in the loss of one vacation day (Reddy Affirmation ¶ 17)[4].

While it is true that whether Trooper Grogan violated any state police policy "would be an important, although not dispositive, factor in determining whether [he] had acted recklessly'" (Criscione, supra, at 158), this Court believes any cited violation of a regulation must be more than a general admonition, and must instead be one which provides specific guidance to the trooper. Thus, those portions of the Field Manual relied upon by Claimants, such as § 30B1(a) which requires troopers to "drive safely" cannot form the basis for a finding of reckless disregard and therefore, the alleged violation of same do not raise a question of material fact. Similarly unavailing are sections which have no application to the facts at bar such as §30B2(c)(6) (see, Walton Affidavit, ¶ 6) which defines "Vehicle Contact Action" as the act of the troop car ramming the pursued vehicle or §30B1(g) which requires the trooper to give a motorist the opportunity to yield to the troop car. Assuming arguendo, the applicability of the Field Manual's pursuit provisions, Claimants also failed to raise a material issue of fact regarding Trooper Grogan's alleged violation of §30B2(d) in undertaking to pursue the motorcycle. The only evidence establishes that Trooper Grogan continually evaluated and assessed the situation as it unfolded in front of him, including the factors listed in the referenced sections.

Distilled to its essence, the question in this Claim is whether the decision of Trooper Grogan on April 8, 1999 to attempt the right hand turn onto Creble Road rises to the level of reckless disregard envisioned by Saarinen v Kerr 84 NY2d 494, 501. In Gordon v County of Nassau, 261 AD2d 359, relied upon by Claimants, in finding an issue of fact the Court focused on the officer's failure to decelerate as he approached a red light and operation of his vehicle in the center turning lane of a thoroughfare congested with traffic without his emergency siren, factors absent here. Similarly, in finding an issue of fact with regard to the reckless disregard for the safety of others, the Court in McCarthy v City of New York, 250 AD2d 654 again focused on the lack of emergency signals as well as the weather conditions - wet and foggy[5] - and an impact which propelled the other vehicle in excess of 20 feet onto a lawn.

Claimants herein have come forward with no evidence to refute either Grogan's testimony that he was decelerating as he approached and entered the turn or Bonnier's conclusions based upon the yaw marks. Furthermore, there is no dispute that the troop car's lights and siren were activated and that Trooper Grogan sounded alert tones as he neared the intersection. That his speed may have been too fast or the angle of entry into the turn insufficient, while perhaps some evidence of negligence, does not rise to the level of reckless disregard for the safety of others (see Notorangelo v State of New York, 240 AD2d 716, 717; see also Szczerbiak v Pilat 90 NY2d 553, 557 ["momentary judgment lapse does not alone rise to the level of recklessness"]). Mindful that "[t]he reasonableness of the officer's conduct must be gauged as of the time and under the circumstances in which he acted, not in retrospect" (Palella v State of New York, 141 AD2d 999, 1000; see also, Gonzalez v Iocovello, 93 NY2d 539, 551 [trier of fact not to second-guess an officer's split-second weighing of choices]; King v Village of Cobleskill, 237 AD2d 689), and viewing the evidence in a light most favorable to Claimants, the Court finds that Claimants have failed to raise a material issue of fact with regard to Trooper Grogan's conduct in attempting the unsuccessful right hand turn[6].

Accordingly, the Defendant's motion is granted and the Claims shall be and hereby are dismissed.[7]

January 10, 2003
Albany, New York

Judge of the Court of Claims

[1] Defendant's and Claimants' Exhibits include affidavits which the Court will refer to by the Affiant's name and Exhibit alpha/numeric in the first instance and thereafter simply by the Affiant's name.
[2] Derivative claims were also filed on behalf of the Claimants' spouses.
[3] Vehicle and Traffic Law §132-a defines a "police vehicle" as "[e]very vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special duties."
[4] See, Johnson v State of New York, 174 Misc 2d 193 affd 253 AD2d 274 (Court of Claims did not abuse its discretion in limiting claimant's inquiry into records of a disciplinary proceeding based upon trooper's alleged negligence in properly safeguarding decedent).
[5] The weather was clear and the road surface dry in the instant Claim (see, Reddy Affirmation, Exhibit 5[I]).
[6] The statement of the minivan operator that she thought the trooper was "going at least 80 mph" as he started to turn onto Creble Road (Reddy Affirmation, Exhibit 5[C]) is simply not credible and has no support elsewhere in this record.
[7] In light of the Court's holding, the Court need not reach Defendant's alternative ground for summary judgment.