New York State Court of Claims

New York State Court of Claims

KLEIN v. THE STATE OF NEW YORK, #2003-029-308, Claim No. 102851


Synopsis


Auto accident with State Police vehicle; Court finds Police vehicle, at time of making u-turn, was pursuing suspected violator of law and thus, VTL § 1104 is applicable. Court further finds Troopers actions were negligent but did not rise to the level of "reckless disregard". Claim dismissed.

Case Information

UID:
2003-029-308
Claimant(s):
DEBRA A. KLEIN, BARRY M. KLEIN, and DEBRA A. KLEIN AND BARRY M. KLEIN as Parents and Natural Guardians of their infant children LUIS KLEIN and ALEX KLEIN both infants less than fourteen (14) years of age The caption is amended sua sponte to reflect the only proper defendant.
Claimant short name:
KLEIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102851
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Phillips & Millman, LLPBy: Jeffrey T. Millman, 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:
August 19, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim arises from a two-vehicle collision which occurred on State Route 6 (hereinafter Rt. 6) approximately 1/10 of a mile west of its intersection with State Route 17M (hereinafter Rt. 17M) in Wawayanda, New York on May 23, 1999. The trial was bifurcated and this decision deals only with the issue of liability.

The credible testimony at trial established that on the morning of May 23, 1999 it was raining when Mr. and Mrs. Klein and their two sons, Alex and Luis, left home in their automobile. Mr. Klein was driving, Mrs. Klein was in the front passenger seat and the sons were sitting in the back. Mr. Klein had both his headlights and windshield wipers operating. When the Klein vehicle reached the intersection of Route 284 and Rt. 6, Mr. Klein stopped. A State police car passed the Kleins eastbound on Rt. 6. Mr. Klein made the right onto Rt. 6, a two-lane highway, and followed the State police car for approximately 3½ miles. Mr. Klein stated that the speed limit was 55 MPH but he was traveling approximately 40 MPH because of the rain. He testified that he was approximately ¼ mile behind the police car during the time he was traveling east on Rt. 6 and this distance remained fairly constant. The evidence further established that approximately 1/10 mile west of the intersection of Rt. 6 and Rt. 17M, in the vicinity of Orange County Paint (see Exhibits 1 and 2), the State police car, operated by Trooper Gregg Lang, pulled over onto the right shoulder without signaling. The Trooper stopped for five or six seconds then attempted to cross Rt. 6 without signaling his intention or engaging the emergency lights or siren. As he did so, the Klein vehicle hit the Trooper's vehicle. The two vehicles traveled across Rt. 6 and came to rest in a ravine on the north side (see Exhibits 1 and 4).

Trooper Lang testified that at approximately 10:30 a.m. on May 23, 1999, while he was traveling eastbound on Rt. 6, two westbound vehicles passed him, one of which had an expired inspection sticker. He decided to pursue and stop that vehicle. From the time he witnessed the vehicle to the point where he pulled to the right in an effort to make a U-turn, he traveled about 50 to 100 feet. Claimants' counsel referred the witness to his deposition testimony where he stated he saw the vehicle with the expired inspection sticker about 1 mile to 1½ miles west of Rt. 17M. Trooper Lang stated at trial that his deposition testimony was incorrect and that a better estimate of the distance from the time he observed the vehicle until he pulled to the right was 50 to 100 feet. He also stated that a period of about five seconds passed between the time he observed the vehicle and the time he pulled over. At his deposition he stated it was "instantaneously about 30 seconds". He testified he realized 30 seconds is a long time and not "instantaneously".

Trooper Lang testified that he did not pull into the driveway of Orange County Paint but pulled over about 20 to 25 feet west of the driveway to perform the U-turn. He stated that prior to making the U-turn he looked in his rearview mirror and did not see any vehicles behind him, glanced over his left shoulder, turned the steering wheel to the left, stepped on the gas pedal and the accident occurred almost instantaneously.

There are two points of conflict in the trial testimony: (1) both Mr. and Mrs. Klein stated the Trooper pulled his vehicle into the driveway of Orange County Paint[1]
and (2) they did not see any westbound vehicles pass them between the time they turned onto Rt. 6 and the time of the collision. This stands in contradiction to Trooper Lang's testimony that he was making a U-turn at the time of the accident to apprehend a vehicle with an expired inspection sticker.
Initially, claimants take the position that there was no vehicle with an expired inspection sticker and therefore no emergency situation existed which would provide the State with qualified immunity under Vehicle and Traffic Law § 1104. Immunity is not available where the driver was not responding to an emergency, and in such circumstances liability may be predicated on principles of ordinary negligence (see,
Mattera v Avis Rent A Car Sys., 245 AD2d 274). Thus, claimant asserts that Vehicle and Traffic Law § 1104 does not apply and Trooper Lang should be held to an ordinary negligence standard. In the alternative, claimants assert that even if § 1104 applies, the Trooper's actions were reckless and without due regard for the safety of others.
Vehicle and Traffic Law § 1104 provides qualified immunity from civil liability to the driver of an authorized emergency vehicle when he or she is operating the vehicle in an emergency situation. However, this privilege does 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" (Vehicle and Traffic Law § 1104 [e]).

The term "emergency operation" is defined by Vehicle and Traffic Law § 114-b to include "[t]he operation...of an authorized emergency vehicle, when such vehicle is engaged in...
pursuing an actual or suspected violator of the law, or responding to...a police call...or other emergency..."(emphasis supplied). Additionally, Vehicle and Traffic Law § 101 provides that every police vehicle is an "authorized emergency vehicle". Furthermore, the driver of an "authorized emergency vehicle" is exempt from certain "rules of the road" under Vehicle and Traffic Law § 1104 (Criscione v City of New York, 97 NY2d 152, 156; Riley v County of Broome, 95 NY2d 455, 462).
It is a violation of the Vehicle and Traffic Law to operate a vehicle with an expired inspection sticker (see Vehicle and Traffic Law § 306 [b]). Thus, if the Court finds that Trooper Lang was making a U-turn to apprehend a suspected violator at the time of the accident, Vehicle and Traffic Law § 1104 applies and the reckless disregard standard is appropriate. Further, while this Court might not consider an expired inspection an "emergency" justifying Trooper Lang's conduct, it is clear that the Court of Appeals would (
Criscione v City of New York, 97 NY2d 152, supra) and this Court is not free to disagree.
The Court finds that Mr. and Mrs. Klein, as well as Trooper Lang, were credible and forthright witnesses. However, on the issue in dispute, the Court accepts Trooper Lang's testimony that a vehicle with an expired inspection sticker passed him traveling westbound on Rt. 6. This has been Trooper Lang's consistent version of the incident since the day of the accident (see Exhibit 6, Memo from Trooper Lang to Major Martin, Troop Commander, Troop F and Exhibit 7, New York State Police Continuation Sheet, Investigation by Sgt. Kreppein). A basic part of a police officer's duty is to be observant of his/her surroundings and to notice any violations or infractions of the law. No corresponding duty attaches to civilians and they cannot be held to the same standard.

The Court found Trooper Lang to be candid in his testimony. He testified that he saw the inspection sticker was yellow but couldn't remember the color of the then current inspection sticker. He also had no memory of the make, model or color of the vehicle or the gender or race of the driver. Claimants assert that this lack of detail makes the Trooper's testimony suspect but the Court does not agree. According to Mr. Klein, Trooper Lang's vehicle was traveling at least 40 MPH[2]
. The Trooper did not remember his speed. The Court does not find it doubtful that, as the two vehicles passed, all Trooper Lang noticed about the other vehicle was the inspection sticker. In fact, it would be less credible if he had been able to focus on the sticker and also identify the driver and the make, model and color of the car. Trooper Lang candidly testified that he did not use a turn signal when he pulled to the right or when he turned left to begin his U-turn. He also testified that he did not engage his emergency lights or siren. This testimony was consistent with the Kleins' testimony and Trooper Lang made no effort to deny conduct which would subject him to liability in the absence of Vehicle and Traffic Law § 1104. I see no evidence of an attempt to establish "perfect" conduct which is, on occasion, a part of testimony by law enforcement personnel.
On the other hand, the Kleins were on a family outing with no need to observe traffic proceeding in the opposite direction. Considering the fact it was raining, Mr. Klein's attention was likely centered on traffic in front of him, proceeding in the direction he was traveling. This does not mean the Court finds the testimony of the Kleins to be less than truthful, just more likely to be mistaken.

Despite my acceptance of the Trooper's testimony as to his motivation and intentions, the Court would be willing to find defendant liable for failure to use emergency lights if such was permitted by law. However, the present state of the law is contrary to the Court's inclinations.

Pursuant to Vehicle and Traffic Law § 1104 (c), all authorized emergency vehicles,
except police vehicles, must be operating a siren and at least one lighted red light for the protection of the statute to apply. Consequently, the exception applies to all police vehicles involved in an emergency operation even when the officer does not employ emergency red lights and the siren (see, Cerruti v State of New York, Claim No. 90028, filed August 20, 1997, McNamara, J.). Since the incident here involved a police vehicle engaged in pursuing "an actual or suspected violator of the law" (Vehicle and Traffic Law § 114-b), it was involved in an emergency operation and the "reckless disregard" standard applies (see, Criscione v City of New York, 97 NY2d 152, supra at 158; Szczerbiak v Pilat, 90 NY2d 553, 556-557; Saarinen v Kerr, 84 NY2d 494 at 500-501).
This standard has been defined as "the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow,
and done with conscious indifference to the outcome" (Szczerbiak v Pilat, 90 NY2d 553, supra at 557 [emphasis supplied]; see also, Saarinen v Kerr, 84 NY2d 494, supra at 501).
The purpose of such a standard is to permit operators of emergency vehicles to perform their duties and "to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop the offending driver" (
Saarinen v Kerr, 84 NY2d 494, supra at 503).
There is no proof in the evidence adduced at trial demonstrating that Trooper Lang's operation of his police vehicle was an intentional act of an unreasonable character done with conscious indifference to the outcome. Trooper Lang's unrefuted testimony is that prior to making the U-turn, he checked his rearview mirror and looked over his left shoulder and did not see any vehicles approaching. Unlike ordinary negligence cases, liability cannot be imposed upon the State based upon Trooper Lang's failure to see what was there to be seen - the Kleins' vehicle. This judgment lapse of looking and failing to see does not, per se, rise to the level of "reckless disregard" or conscious indifference required of the driver of an emergency vehicle in order for liability to attach (
Szczerbiak v Pilat, 90 NY2d 553, supra at 557; Saarinen v Kerr, 84 NY2d 494, supra at 502; Csizmadia v Town of Webb, 289 AD2d 854, 857).
Under the facts presented at trial, there is no basis upon which to conclude that Trooper Lang operated his vehicle with the type of knowing disregard required under Vehicle and Traffic Law § 1104 (e) to establish defendant's liability. Absent such showing, the claim must be, and is, hereby dismissed. It is not required that I agree with the present state of the law, merely that I enforce it. In light of the above determination, the State's counterclaim is dismissed as moot. All motions made at trial, including the motion
in limine, upon which the Court reserved decision, are now denied. The Clerk of the Court is directed to enter judgment accordingly.

August 19, 2003
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1] As stated above, Trooper Lang testified he pulled over about 20 to 25 feet west of Orange County Paint.
[2] Mr. Klein stated he was traveling at 40 MPH on Rt. 6 and stayed approximately a ¼ mile behind the Trooper's vehicle.