New York State Court of Claims

New York State Court of Claims

ECKERT v. THE STATE OF NEW YORK, #2003-029-261, Claim No. 100921


Case Information

RICHARD ECKERT and SHIRLEY ECKERT The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Larkin, Axelrod, Trachte & Tetenbaum, L.L.P.By: Gus P. Fotopoulos, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 6, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's vehicle struck by tractor trailer which lost control and jack-knifed. State Police were at scene responding to prior accident in same vicinity. Claimant asserts special relationship existed between State Police and self. Court finds claimant failed to establish an existence of a special relationship, therefore, claim dismissed.

This claim for personal injury arose from a two-vehicle accident on Route (hereinafter Rt.) 9D in the Town of Fishkill, New York on September 22, 1998. The trial was bifurcated and this decision deals only with the issue of liability.

Claimant[1] testified that on September 22, 1998, at approximately 9:00 a.m., he was driving southbound on Rt. 9D in a tractor trailer when he came upon the scene of an accident[2]. He was guided past the accident scene by emergency personnel and, at some point, was directed into the northbound lane of traffic and then back into the southbound lane. Just after returning to the southbound lane, claimant saw a dump tractor trailer heading northbound coming around a curve about 125 feet in front of him. Claimant realized the dump tractor trailer did not have enough room to stop. The driver of the dump tractor trailer, Allen Howell, applied his brakes and jackknifed. The rear of the dump truck's tractor and the front of its trailer struck the front of claimant's tractor (see Exhibits 9, 11, 12 and 17). Claimant stated that he does not recall seeing any flares in the vicinity of accident 1 as he proceeded through the accident scene. He further testified that, following the accident, he was placed in an ambulance and taken from the scene.

Michael J. Droney was called as a witness by claimant. Mr. Droney testified that he witnessed accident 2. He stated that on September 22, 1998, at approximately 9:00 a.m., he was going around a "bad curve"[3] while proceeding north on Rt. 9D. He saw what he believed to be burned-out flares, which he does not believe were present in the area when he traveled south on Rt. 9D earlier that morning. As he came around the curve, he saw "a lot of brake lights" in front of him so he slammed on his brakes almost hydroplaning into the car in front of him. He was afraid his car would be struck by the next vehicle coming around the curve, which was an 18-wheel truck. The truck driver slammed on the brakes and the truck jackknifed. Mr. Droney stated that he maneuvered his car off the right side of the roadway into the woods and the truck struck another truck which was traveling southbound. The witness testified that he did not see any lit flares prior to accident 2 but recalls seeing three or four burned-out flares during his approach to accident 1. He estimated that accident 2 occurred about 200 feet north of the curve depicted in Exhibits 4 and 10.

New York State Trooper Jeffrey Bridges testified that he responded to the scene of accident 1 at approximately 8:35 a.m. Accident 1 involved two cars and three people and occurred at about 8:30 a.m. He stated that he was the first officer to arrive at the scene. Subsequent to his arrival, he checked with the parties in the accident and determined one person was injured. The witness requested an ambulance be sent to the scene. After determining a "line of sight" for the approach of northbound traffic, he placed flares south of accident 1 to warn motorists traveling northbound of the accident. He stated he placed the flares around the curve so that the flares could be seen by northbound drivers on the straight-away prior to the curve. He also placed flares north of accident 1 to warn motorists traveling southbound of the accident. The trooper stated that the flares are "rated" to burn for 30 minutes and in his experience, they do burn for "about 30 minutes", although sometimes a little longer and sometimes a little less. The witness stated that he placed four or five flares south of the scene of accident 1 and that he attached (daisy-chained) a second flare to the burning flare in some instances so that the flares would burn longer than 30 minutes. He further stated that he did not go back to make sure they were still burning at any time prior to accident 2.

The witness further testified that after placing the flares, he began his investigation of accident 1. At some point the fire department arrived on the scene and he radioed to have another trooper dispatched to assist. Trooper Brophy arrived and as Trooper Bridges was discussing the situation with him, the second accident occurred. Trooper Bridges stated that the second accident occurred within a minute or two of Trooper Brophy's arrival but he doesn't know what time that was. He doesn't know if the second accident occurred more than 30 minutes after he set up the flares.

Trooper Bridges testified that fire personnel were directing traffic at the scene of accident 1. He stated that at an accident scene, normally, the police investigate the accident and fire personnel are in charge of traffic control. The witness said that after the second accident, Rt. 9D was impassable and it was determined that the road be closed.

New York State Trooper Brian Brophy testified that he was called to the scene of accident 1 to assist with accident control. When he arrived at the scene, he was talking with Trooper Bridges for about one minute when he heard a loud bang south of the scene of accident 1. He turned around and about 2/10 of a mile south of where he was standing, he saw that two trucks had collided. The witness could not remember if he traveled north or south on Rt. 9D to get to the accident scene. He stated that he prepared the accident report regarding accident 2 (Exhibit 2) and investigated this accident.

Trooper Brophy stated he asked a few people at the accident scene if they had witnessed the accident but no one came forward. He said he never spoke to Mr. Droney about accident 2. He testified that at the time of the accident the pavement was wet and he believes that the northbound truck, driven by Mr. Howell, was speeding. This belief is based solely on the fact that the driver was unable to stay in his lane and struck the Eckert truck.

Claimant called Reginald F. Allard, Jr. as an expert in the field of Accident Scene Management. Mr. Allard has a Master's Degree in Criminal Justice from the University of New Haven and served as a police officer in the State of Connecticut for two police departments for 29 years. His Curriculum Vitae (hereinafter CV) was admitted into evidence as Exhibit C. The State objected to Mr. Allard being accepted as an expert witness in the field of accident scene management. The Court reserved on the State's motion to preclude the witness' testimony, allowed him to testify and allowed the parties to address the issue in their post-trial memoranda. Mr. Allard stated that none of the special courses he has taken, certifications he has received or seminars he has conducted deal exclusively with the area of accident scene management by police officers. He stated that he has testified in court proceedings in approximately 15 states and in New York State courts on three occasions. However, the majority of his court appearances have dealt with the issue of excessive force and he has never been accepted as an expert in police accident scene management by a court in New York State.

To establish the reliability of an expert's opinion, the party offering that opinion must demonstrate that the expert possesses the requisite skill, training, education, knowledge or experience to render the opinion (Matott v Ward, 48 NY2d 455; Hofmann v Toys "R" Us, 272 AD2d 296). In the instant case, claimant's expert's CV informs us that the witness is undoubtedly an experienced police officer in the State of Connecticut and has extensive experience in "use of force" matters. However, the record failed to establish that he has any specialized knowledge, experience, training or education in the field of accident scene management sufficient to qualify him as an expert (Shea v Sky Bounce Ball Co., Inc., 294 AD2d 486; Hofmann v Toys "R" Us, 272 AD2d 296, supra) in New York State. Therefore, the Court now grants the State's motion to strike Mr. Allard's testimony and his testimony will not be considered by the Court.

As a general rule, a governmental agency may not be held liable for injuries resulting from a failure to provide police protection (Mastroianni v County of Suffolk, 91 NY2d 198, 203; Kircher v City of Jamestown, 74 NY2d 251, 255; Cuffy v City of New York, 69 NY2d 255, 260). The Court of Appeals has recognized potential liability stemming from the presence of a special relationship existing between the governmental agency and the injured party. The elements of this "special relationship" are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (Mastroianni v County of Suffolk, 91 NY2d 198, 204, supra; Kircher v City of Jamestown, 74 NY2d 251, 257, supra; Cuffy v City of New York, 69 NY2d 255, 260, supra).

In his post-trial memorandum, claimant's counsel asserts that claimant has established each of the above elements and that a special duty was established between the defendant and claimant. However, the Court finds that claimant has failed to establish all of the elements[4] by a preponderance of the credible evidence. Claimant failed to establish that the State, through any promises, actions or direct contact, assumed an affirmative duty to act on behalf of Mr. Eckert individually as opposed to the general public traveling on Rt. 9D. Further, there is nothing in this record showing reliance, reasonable or not, by claimant upon either Trooper. No evidence was submitted to establish that Mr. Eckert saw either trooper at the scene, much less that he had any direct contact with either trooper prior to his accident with Mr. Howell.

Claimant relies on Ramundo v Town of Guilderland (108 AD2d 995) and Kenyon v Van Vorce (144 AD2d 925) to establish direct contact between claimant and the defendant. In Ramundo, the Appellate Division, Third Department affirmed an order granting plaintiff leave to amend the complaint alleging negligence on the part of the town police. The Court stated that:

"...when the police assume a duty to assist members of the public and exercise control over them, a special duty to provide proper care and attention so that the condition of the individual requiring aid is not worsened may indeed arise."

The Appellate Division found that when the police officers arrived at the accident scene and took control of the area, they established a special relationship with the victims of the accident by rendering assistance to them.

In Kenyon, the Appellate Division, Fourth Department affirmed the lower court's order denying defendant's summary judgment motion seeking dismissal of the complaint. In Kenyon, police officers came upon the scene of an accident, radioed for assistance, attempted to put out a vehicle fire and extricate plaintiff from the vehicle but were unsuccessful. The officers refused an offer of assistance from a nearby resident and prevented him from putting the vehicle upright before firefighters arrived. The Court determined that an issue of fact existed as to whether a special duty to plaintiff had been breached.[5]

In Ramundo and Kenyon the plaintiffs were involved in the "original accident" and were rendered aid by the police. In Ramundo the Court held this was sufficient to establish a special relationship. In Kenyon, the Court held this was sufficient to raise a question of fact as to the existence of a special relationship. In the subject situation, Mr. Eckert was not involved in the first accident and the State Police did not render him aid[6]. Thus, the Court finds claimant's reliance on these cases to be misplaced.

Based upon the above analysis, the Court finds that claimant has failed to establish the existence of a special relationship between himself and the State. Accordingly, the claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision and not ruled upon, are herein denied. The Chief Clerk is directed to enter judgment accordingly.

February 6, 2003
White Plains, New York

Judge of the Court of Claims

[1] As the claim of Mrs. Eckert is derivative in nature, all references to claimant will be to Mr. Eckert unless otherwise indicated.
[2] At the Court's suggestion, for the ease of reference, it was agreed by the parties that this accident would be referred to at trial as accident 1 and the accident involving claimant would be referred to as accident 2.
[3] Unless otherwise noted, all quotes are from the audio record of the trial or the Court's trial notes.
[4] While it could be reasonably argued that the element of knowledge of harm by inaction could be established, there is no need for the Court to decide this in the absence of the other elements which are conjunctively necessary.
[5] It is noted that the Appellate Division's finding of a triable issue was not a dispositive ruling on ultimate liability as requested at bar. Thus, this matter is much less persuasive than claimant asserts.
[6] At least at any time prior to his accident with Howell's truck.