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
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
. 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
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
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
"...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
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
, 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
the plaintiffs were involved in the
"original accident" and were rendered aid by the police. In Ramundo
Court held this was sufficient to establish a special relationship. In
, 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
. 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.