New York State Court of Claims

New York State Court of Claims

BECKWITH v. THE STATE OF NEW YORK, #2003-032-517, Claim No. 104714


In a decision applying the "reckless endangerment" standard of V&TL §1104, the State is found to be 90 per cent liable for injuries suffered by a youth who, while riding an ATV, was the subject of a low-speed chase carried out by a State Police officer. The officer was properly examined as a hostile witness, and the opinion of the State's expert was rejected on the ground that he did not have knowledge of many key facts of the incident.

Case Information

CHRISTOPHER BECKWITH and RICHARD and PAULA BECKWITH, his Parents By a prior order the Court amended the caption to reflect the fact that Christopher Beckwith was no longer a minor. Although the original claim did not list Christopher's parents in any way other than his natural guardians, the claim itself stated a derivative cause of action on their own behalf. Consequently, the caption is again amended to include Richard and Paula Beckwith as claimants.
Claimant short name:
Footnote (claimant name) :
By a prior order the Court amended the caption to reflect the fact that Christopher Beckwith was no longer a minor. Although the original claim did not list Christopher's parents in any way other than his natural guardians, the claim itself stated a derivative cause of action on their own behalf. Consequently, the caption is again amended to include Richard and Paula Beckwith as claimants.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
O'Connell & AronowitzBy: Stephen R. Coffey, Brian Baker and Thomas E. Dolin, Jr., Esqs.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
August 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

A State Police trooper, who engaged in a low speed pursuit of two youths riding on an all terrain vehicle ("ATV"), acted with "reckless disregard" for the safety of the youths. The State Police officer continued the pursuit in a dangerous fashion, cutting in front of and behind the ATV; followed the ATV to the opposite side of the road; drove for some distance in the opposite direction of traffic; and eventually rammed into the back of the ATV, thereby causing it to crash. Consequently, the defendant bears 90 percent liability for the injuries. The ATV operator was also negligent and bears 10 per cent responsibility for his injuries that resulted from the accident.
On August 12, 1999 at approximately 4:00 P.M., claimant Christopher Beckwith ("Christopher") drove his ATV from Stephentown, New York, to Berlin, New York. His intention was to pick up his friend, Phillip Bentley ("Phillip"), who was visiting another friend, and bring him to his cousin's house back in Stephentown, to be fitted for a tuxedo. Christopher's home was in the middle of woods in Stephentown and he was familiar with the ATV trails in the area. He had purchased the ATV with his father in 1997 and had considerable experience on it. Christopher and Phillip were both fifteen years old. Before heading to their destination, the boys proceeded to the library on Main Street in Berlin. They did not drink or do any drugs that day. As they were standing in front of the library, Christopher saw a State Police vehicle drive past him. He was concerned, because he knew the ATV should not have been off his property in Stephentown. Christopher also knew that it was not legal for him to ride the ATV on State highways and that the vehicle was not registered or insured.[1]
As a result, he was afraid that the ATV might be impounded.
As the police vehicle passed them on Main Street, the boys got onto the ATV with Christopher driving and Phillip as a passenger, even though the ATV was built to carry only one person. They proceeded north on Main Street, made a right onto Elm Street, and then made another right onto State Route 22, heading in a southbound direction. The ATV was being driven on the shoulder of the road at approximately 40 MPH. Christopher knew that an ATV trail existed off State Route 22 that would take him to Stephentown.

On the day in question, State Police Trooper William Conboy ("Trooper Conboy")[2]
was working from 11:00 A.M. to 11:00 P.M., and Eric Barnes, an intern,[3] was riding with him in the patrol vehicle. Between the hours of 5:00 P.M. and 6:00 P.M. that day, Trooper Conboy noticed a red ATV in front of the Berlin library. A few weeks prior to this date, he had received a complaint regarding the theft of a red ATV in West Sand Lake, New York. When he saw the boys with a red ATV in front of the Berlin library, he thought they may be able to provide him with some information about the stolen ATV. He testified, "I wanted to conduct a cursory interview." He knew that the boys were not committing any felonies or misdemeanors. He thought perhaps some infractions of the Vehicle & Traffic Law may have occurred. He had no indication at this time that the boys were dangerous criminals, and the ATV was not being driven in an erratic or dangerous way. Trooper Conboy turned his police vehicle around on Main Street and followed the boys.
Christopher testified that he was traveling at 40 MPH when he commenced driving on Route 22. About one-tenth to one-quarter mile down State Route 22 Trooper Conboy activated the siren and electronic fog horn. A slow speed chase then ensued. Trooper Conboy did not call in the pursuit to his supervisors. Trooper Conboy did not observe any other motorists on the road at that time. Pulling alongside the ATV as it traveled in the southbound shoulder, the trooper testified that he used the public address system to say, "I just want to talk to you." Christopher knew that the trooper wanted him to pull over, but because of his fear that the ATV may be impounded, he did not comply. He estimated that the State Police vehicle was traveling about 40 MPH. The State Police vehicle eventually pulled in front of the ATV onto the southbound shoulder. Christopher claimed that when the State Police vehicle was 10 to 20 feet in front of the ATV, the trooper slammed on his brakes. Trooper Conboy testified that when he first pulled in front of the ATV he was approximately three car lengths (30 feet) in front of the boys and that he gradually decelerated from 40 MPH. Christopher remembered that he slammed on his own brakes when he saw the brake lights triggered on the State Police vehicle. Phillip also testified that the Trooper slammed on his brakes at this time. Trooper Conboy testified that if he had slammed on his brakes at this time it could be considered reckless. He admitted that at the time he was operating the police vehicle, he had the responsibility for the safety of the passengers on the ATV.

Christopher then went around to the left of the State Police vehicle into the driving lane heading southbound, so that now he was parallel with the State Police vehicle. He saw the trooper mouthing words at him,[4]
but he ignored him and kept driving. Christopher then pulled in front of the trooper onto the southbound shoulder, and Trooper Conboy moved his vehicle into the driving lane, so that the vehicles again became parallel. The trooper again pulled in front of the ATV on the southbound shoulder, and Christopher testified that the trooper slammed on his brakes more quickly this time.
At that point, Intern Barnes told Trooper Conboy that there had been some contact between the rear of the police vehicle and the front of the ATV. At trial, Phillip testified, "We slammed into them." Both Christopher and Phillip testified that the ATV's right wheels came off the ground. After the contact, Christopher lost control of the ATV for a minute and veered to the left side of Route 22. He pulled his ATV all the way across the highway and onto the northbound shoulder of State Route 22 and proceeded southbound. His goal was to ultimately reach the ATV trail, which was approximately 100 yards away on the right side of the road.

According to Trooper Conboy, when the youths went to the northbound shoulder, he crossed State Route 22, and driving in the northbound driving lane, the State Police vehicle coasted alongside the ATV.
At one point the ATV fell behind on the left but then gained on the State Police vehicle, eventually pulling parallel to it again.[5] Trooper Conboy then saw the ATV head towards a field, where it struck a ditch on the side of State Route 22. He testified that he never struck the ATV with the State Police vehicle while it was either on the paved shoulder or the grass shoulder of the northbound lane of Route 22.
According to Christopher, however, as he drove on the northbound shoulder at approximately 40 MPH, the State Police vehicle was behind the ATV and hit the back of the ATV, causing it to go off the road towards the embankment and the ditch. He remembered feeling a jolt, being thrown backwards and colliding with Phillip behind him. Christopher testified that the ATV went faster after the jolt. At the time of the jolt Christopher believed that his ATV was on the shoulder of the road.[6]
He remembers hitting the embankment, and then everything going black. He regained consciousness with the ATV on top of him. He testified that he never thought he could negotiate the ditch. "[I]t would be crazy. It would be – it was almost a straight drop just looking at it." He further testified, "I remember feeling it [the jolt] and then seeing the ditch. I had no time to do anything. I mean, it felt like milliseconds" (Tr, pp. 198-199, 201).
Phillip Bentley testified that as the ATV was traveling on the northbound paved shoulder, the police car was approximately 10 to 15 feet behind them. According to Phillip, the police vehicle rammed into the back of the ATV. Although he did not see the impact, he had turned around just prior to impact and observed the police vehicle speeding up behind them. He observed the police vehicle approximately five feet from him and then felt a bump. He estimated that the police vehicle was traveling at 20-30 MPH when it bumped the ATV. He recalls that after the police vehicle hit the ATV, the helmets of the two boys knocked together. He testified, "I slammed into Chris." Approximately two seconds elapsed between the police vehicle striking the ATV and the ATV hitting the ditch. Phillip did speak to the State Police about the accident but he was unaware how long after the incident he did so.

On August 12, 1999, at or around 5:00-6:00 P.M., Jennifer Burhans ("Ms. Burhans") was traveling north on State Route 22. She was just returning from a trip to her mother's house in Cape Cod, Massachusetts. Her children were with her in the two back seats of her Suburban. She was traveling 55 MPH when she noticed two vehicles
heading southbound on the northbound side of Route 22 near Lanphier Lane. She observed an ATV being followed by a State Police vehicle. The ATV was traveling in the northbound paved shoulder and the State Police vehicle was directly behind it. They were traveling fairly close to one another. When she came abreast of the ATV, the ATV accelerated and went into a ditch. She testified that once Christopher hit the grass he did not travel along that slope for any distance. He hit the slope and then went right down into the ditch. She passed the State Police vehicle and she was certain that the State Police vehicle was behind the ATV. She did not see contact between the ATV and the State Police vehicle. She pulled over, put the hazard lights on in her car, locked the doors, and told her children to remain inside the vehicle. She slid down the embankment towards the ATV and identified herself to Intern Barnes who had left the police vehicle to assist the injured. When she assessed the situation and determined it was safe to approach the victims, she could see that Christopher Beckwith had head injuries and his legs were pinned under the ATV. Phillip and Intern Barnes moved the ATV off Christopher. Ms. Burhans attended to Christopher and tried to hold Christopher's head and body in a straight line so that he would be secure.
According to Ms. Burhans, whom the Court found to be very credible, Trooper Conboy initially stayed at the police car and then stayed behind the trunk of the vehicle while they were working on the boy. When Trooper Conboy eventually came down to where Christopher was located, he yelled at him, "Why didn't you stop? What were you doing?" Christopher responded, "I didn't see you, sir." and "I don't know, sir."[7]
Ms. Burhans wanted Trooper Conboy to leave because he was upsetting Christopher. It was Ms. Burhans' assessment that Christopher had at least a broken jaw. Intern Barnes asked Trooper Conboy to go back towards the police vehicle.[8] The ambulance eventually arrived and took the two boys away. After the ambulance took the boys away, Trooper Conboy approached her and said, "Did you see me hit the ATV?" She responded, "No." Trooper Conboy testified that he may or may not have said this to Ms. Burhans; he did not recall. Trooper Conboy then asked her if she would give a statement to his superior. She eventually gave her statement that evening to a State trooper, but the trooper in charge of the accident reconstruction of this accident on behalf of the State Police, then Trooper Bonnier, never contacted her to obtain a statement, even though her number was listed and she was otherwise available to speak to him.
On August 12, 1999, Tammy Osterhout ("Ms. Osterhout") an EMT with the Berlin Volunteer Rescue Squad, was called to respond to an accident on State Route 22. Ms.

Osterhout, whom the Court also found to be very credible, was the EMT in charge that day. When she arrived at the scene of the accident, there were cars off to the side of the road, the fire apparatus, an ATV in the field, and people milling around. She went down to the field and had to jump down the ditch, which had an incline of one-half foot to two feet deep. There were two young men in the field and a woman whom she later identified as Jennifer Burhans. Ms. Burhans was kneeling by Christopher. There was blood on Christopher and Ms. Burhans was holding Christopher's head. Ms. Osterhout asked Christopher to state his name, the day of the week and what had happened. He replied with his name, the day of the week and then he said, "He hit me." She did not ask him any more questions because blood was coming out of his mouth and she did not want him to talk anymore. He did not say who hit him. Ms. Osterhout had the ambulance move as close to the patient as possible. The ambulance could not drive through the ditch, so she had it drive to Lanphier Lane and come across the field in order to be closer to Christopher.
Sergeant John Deans is a technical sergeant, employed by the New York State Police for the past 24 years. He teaches the driver training program, New York training program, and the breath-test program. He has also been trained in pursuit driving and has been teaching that course since 1984. Sergeant Deans testified that the State Police Manual indicates that a trooper must call in a pursuit when a pursuit is initiated. He testified that depending upon the circumstances the pursuit policy is usually enforced.
In pursuits involving ATVs it is usually only a matter of minutes before the ATV goes down a trail and a patrol vehicle is not able to follow it. Consequently, a trooper usually does not call in the pursuit of an ATV because it is over before there would be time to seek permission for the pursuit. The trooper is given some leeway in these circumstances.
Trooper Conboy admitted that he did not follow the procedure in the State Manual regarding pursuits on the day of the accident. Between the time that he first saw the ATV until the ATV went off the road, he estimated that approximately 2 to 3 minutes had transpired. While he pursued the boys, he was driving with his left hand and using his right hand to use the public address system. He estimated that the pursuit would have been over by the time he called in and eventually reached a supervisor to request permission. He testified that if the pursuit had continued, he would have considered it serious enough to have called it in.

There were several trial exhibits that the claimant's attorney used to highlight the fact that in the early months after the accident Trooper Conboy consistently reported that his vehicle did indeed follow behind the boys' ATV while it was on the northbound side of Route 22. Exhibit 17, a memorandum prepared by Trooper Conboy on the date of the occurrence, reads: "After passing this time the ATV crossed St. Rt. 22 and proceeded southbound on the East shoulder. Member proceeded to follow the ATV anticipating surrender." Nowhere in this document does Trooper Conboy indicate that he was ever in front of or beside the ATV. Trooper Conboy testified, however, that the word "follow" meant that he followed them onto the northbound shoulder. Claimant's attorney also questioned Trooper Conboy about the MV-104[9]
(Exhibit C), the police accident report that contained a diagram showing only where the ATV vehicle was prior to the accident. The report did not indicate where the State Police vehicle was prior to the accident.
Exhibit 30, a question and answer statement taken from Trooper Conboy by Captain Ronald Tritto on January 12, 2000 ("Tritto inquiry"), contained a question and answer indicating that Trooper Conboy was following the ATV in the northbound shoulder after he crossed Route 22 (Exhibit 30, p. 5).[10] ejecting both of the passengers.
Trooper Conboy admitted during trial that at no time in the January 2000 statement did he indicate that he was in front of the ATV. Trooper Conboy's response to this was that he was just trying to describe the event as best he could.
Exhibit 15, a supporting deposition taken of Intern Barnes the evening of August 12, 1999 states:
As we went south on Rte. 22, Tpr. Conboy pulled in front of the ATV and slowed down, the ATV went around us to our left. Tpr. Conboy again pulled in front of the ATV and slowed down. This time the ATV bumped us from behind. The ATV then slowed down a little bit, then passed us again, this time the ATV drove onto the northbound shoulder of the road. Tpr. Conboy said they would probably turn off down a side road. The ATV continued on the shoulder. Tpr. Conboy pulled in back of them. The ATV driver then drove down an embankment, hit a ditch and flipped over.
Despite the contents of this written statement taken the day of the accident, Intern Barnes testified at trial that when the ATV went onto the northbound shoulder of State Route 22, the State Police vehicle went into the northbound lane. While the State Police vehicle was in the northbound lane, he stated that the ATV was behind the State Police vehicle but on the northbound shoulder. Eventually, the ATV veered down the grass shoulder of State Route 22 and hit the ditch. When asked to explain his trial testimony that conflicted with his written deposition, Intern Barnes only said that the trial testimony was more detailed.
Sergeant Timonthy P. Bonnier testified as the defendant's accident reconstructionist expert witness.[11]
He is presently a sergeant in communications operating out of State Police Headquarters. In 1994 he was trained as an accident reconstructionist. At the time he investigated this accident, he had reconstructed 80 personal injuries and fatal collisions. He has been accepted in other courts as an expert.
By the time Sergeant Bonnier arrived at the scene of the accident, the boys had already been taken to the hospital. He never spoke to them about the accident. He immediately started to process the accident scene upon his arrival by examining the vehicles, processing the roadway surface in both directions on State Route 22, and photographing the scene. He took a ride with Trooper Conboy in the patrol vehicle and drove the route of the pursuit to where it ended in the hayfield. He examined the patrol vehicle and the ATV for signs of contact, such as physical damage or an interruption of contour of the metal of the vehicle. When he examined the police vehicle he found on the left rear bumper an interruption of the dirt pattern just below the tail light of the police vehicle. He found no evidence of any contact between the rear portion of the ATV and the front bumper of the patrol vehicle. He testified that if there had been contact between the vehicles at a 20 MPH difference in speed, a substantial amount of contact damage would have been done to the vehicles. He testified that, to the eye, there was no noticeable damage of any sort to these vehicles. In his "Collision Reconstruction Report", Sergeant Bonnier wrote: "While traveling on ST-22 just south of Lamphier [sic] Lane V-1 crosses onto the northbound shoulder and onto the grass earth embankment. V-1 travels alongside the pavement edge for some distance and then turns left down the embankment towards the hay field. V-l strikes the eastside drainage ditch wall, rolls over, and ejects both the driver and passenger." Sergeant Bonnier concludes "the cause of the collision was the driver of V-1 [Christopher] was traveling at an unsafe speed when he attempted to descend down the earth embankment and cross the drainage ditch." (Exhibit 18, p. 4).

On the night of August 12, 1999, Sergeant Bonnier was not advised that the boys were claiming they had been hit by the State Police vehicle. When preparing to testify he asked to review all pertinent documents, but did not believe he was given Exhibit 30, the Tritto inquiry. The Sergeant never spoke to Jennifer Burhans about this accident, although he did read her deposition. He gave no plausible reason at trial as to why he never contacted her. He did testify, however, that if he had spoken with her he would have factored her statement into his report. He only read the statement from Intern Barnes; he never spoke to him. He took no notes of any conversations that he had with Trooper Conboy. He did not remember talking about contact between the two vehicles with Trooper Conboy that evening. He did not recall what Trooper Conboy told him about the location of the State Police vehicle after the ATV crossed State Route 22 or when the ATV went off the road. He took pictures of the back bumper of the patrol vehicle but not the front bumper. He took photographs of the back of the ATV. He did not take photographs of the path of the ATV. He admitted on cross-examination that it was sheer speculation on his part as to why the ATV driver left the road even though he had opined that the driver left the road to evade the police. In his December 9, 1999 accident reconstruction report, he makes no reference to the presence of a State Police vehicle.
Expert Witness
The seminal case of
Matott v Ward (48 NY2d 455 [1979]) provides the standards that an expert witness must meet before a trial judge qualifies such witness as an expert:
A predicate for the admission of expert testimony is that

its subject matter involve information or questions beyond the

ordinary knowledge and experience of the trier of the facts. Moreover,

the expert should be possessed of the requisite skill, training, education,

knowledge or experience from which it can be assumed that the

information imparted or the opinion rendered is reliable.

If it is determined that expert evidence is necessary and the witness is qualified as such, the court still has to ascertain whether the witness exhibited a degree of confidence in his conclusions so as to satisfy the accepted standards of reliability. A court should look to the totality of the witness' testimony to determine whether there is an acceptable level of certainty. The door should not be open for surmise (
An accident reconstructionist witness must possess the requisite skill, training, education, knowledge and experience to reconstruct the accident. His or her opinion must help clarify an issue calling for professional or technical knowledge possessed by the expert and beyond the ken of the typical juror (
Litts v Wayne Paving Company, Inc., 261 AD2d 906 [4th Dept 1999]; Van Scooter v 450 Trabold Rd., 206 AD2d 865, 866 [4th Dept 1994]).
The Court of Claims, as the trier of fact, is entitled to deference regarding a witness' credibility (
Martin v State of New York, 2003 N.Y. Slip Op. 13958 [3rd Dept May 8, 2003]; Krafchuk v State of New York, 250 AD2d 962 [3rd Dept 1998]). A witness' qualifications to testify as an expert witness rests in the discretion of the trial judge and the determination will not be disturbed in the absence of serious mistake, an error of law, or abuse of discretion (People v Hanright, 187 AD2d 1021 [4th Dept 1992]). An expert may be qualified without specialized academic training through "[l]ong observation and actual experience" (Price v New York City Housing Authority, 92 NY2d 553 [l998], citing Meiselman v Crown Hgts. Hosp., 285 NY 389 [l941]).
The Court finds that Trooper Bonnier, despite his lack of extensive training in science and mathematics, possessed the requisite skill, training, education and experience to reconstruct the accident. The Court has determined, however, that Trooper Bonnier's incomplete knowledge of the facts of this accident prevent his conclusions from being valid. In other words, the Court does not find that his testimony rises to the level of certainty necessary for admissibility.

It is obvious to the Court from the testimony of Ms. Burhans, Ms. Osterhout and Trooper Conboy, that an issue existed as to whether the boys were bumped off the northbound shoulder by the State Police vehicle. Sergeant Bonnier testified that he did not know this was an issue in the case. If he had interviewed Ms. Burhans and Ms. Osterhout, he would have known about this possibility. If Trooper Conboy had been forthcoming to Sergeant Bonnier, Sergeant Bonnier may have had more facts for his investigation. The Court credits Ms. Burhans' testimony that Trooper Conboy approached her after the accident and asked her, "Did you see me hit the ATV?" Trooper Conboy admitted that he may have asked that question to Ms. Burhans. Ms. Osterhout testified that when Christopher became conscious after the accident he stated, "He hit me." If Sergeant Bonnier had known these facts, perhaps he would have taken photographs of the front of the police vehicle. The Court also finds it odd that before testifying Sergeant Bonnier was not provided with Exhibit 30, the Tritto inquiry into the circumstances of the accident. Sergeant Bonnier was also unaware of the location of the police vehicle when the ATV went off the road. Indeed, he does not even reference the location of the State Police vehicle in his December 1999 accident reconstruction report. Sergeant Bonnier admitted on cross-examination that it was sheer speculation on his part as to why the ATV left the road even though he wrote that it did so to evade police. In summary, the Court finds Sergeant Bonnier's testimony and report to be unpersuasive speculation and inconclusive since it was based upon limited facts. His opinion as to the circumstances and cause of the accident will not be considered.

Both parties agree that the standard by which Trooper Conboy's actions must be judged is the "reckless disregard" standard applied to drivers of "authorized emergency vehicles" (which include police vehicles) when they are involved in an emergency operation (Vehicle and Traffic Law §1104;
see, Riley v County of Broome, 95 NY2d 455 [2000]; Saarinen v Kerr, 84 NY2d 494 [1994]). "Emergency operations" include "pursuing an actual or suspected violator of the law" (Vehicle and Traffic Law §114-b). When engaged in such an operation (and for vehicles other than police vehicles, when certain safety precautions are observed), the driver of the emergency vehicle may: 1) proceed past red traffic signals and stop signs; 2) exceed the speed limit; and 3) disregard regulations governing directions of movement or turning, stopping, standing or parking.
There will be no liability for harm caused to others unless it is established that the emergency vehicle's operator acted with "reckless disregard" for the safety of others. To establish that this has occurred, it must be proven 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" (
Saarinen v Kerr, 84 NY2d at 501, quoting Prosser and Keeton, Torts §34, at 213 [5th ed]). A defendant's decision to ignore a grave risk that is likely to result in harm to others may satisfy the intentional aspect of the test. (Rouse v Dahlem, 228 AD2d 777, 778-779 [3d Dept 1996], quoting Campbell v City of Elmira, 84 NY2d 505, 510-511).
The factors that should be considered in determining whether an officer's conduct rises to the level of reckless disregard include, but are not limited to, the following: the nature of the original offense; the length (in miles) of the chase; the duration (in time) of the chase; weather conditions; road conditions; traffic volume; neighborhood characteristics; visibility; and speed
(Dale & Gere v State of New York, #2001-019-574, Claim No. 98032, Motion No. M-63714, Nov. 13, 2001, Lebous, J., and cases cited therein at fn 7). When considering these and any other relevant factors, courts are to impose liability when they find that there was "disproportionate, overreactive conduct" (Campbell v City of Elmira, 84 NY2d 505, 512 [1994]).
Both parties recognize that the facts of this case most closely replicate those in
Schieren v State of New York (281 AD2d 828 [3d Dept 2001]). In that case, a State Police officer was engaged in a low-speed pursuit of a dirt bike on which two people were riding. The dirt bike was designed for a single passenger and for only off-road use, and neither of the passengers was wearing a helmet. The pursuit, which covered 0.6 miles and lasted approximately one minute, ended when the dirt bike drove completely off the road into an adjacent field and headed for a bike trail further to the right of the road. At the time that occurred, the trooper was positioning his vehicle behind the dirt bike, after having caught up to it and then pulled up alongside it and gestured for the bike riders to pull over. According to the trooper, it appeared to him as if the bike had simply "disappeared," and he assumed it had fallen down in front of his car. Consequently, he took what he believed would be evasive action, pulling to the right, which unfortunately caused him to collide with the dirt bike and its passengers. At trial, the State's expert concluded that the trooper's explanation of events was the correct one, a conclusion based on the expert's examination of the vehicles within minutes of the accident,[12] witness interviews conducted that evening, and the fact that no one – neither witnesses nor the dirt bike riders themselves – made any mention of the State Police vehicle colliding with the bike before the bike drove off to the side and went out of control. Because of the inadequacy of the testimony of claimant's expert, this explanation of events was essentially unchallenged (id, at 830). The Court of Claims' holding that the trooper's actions did not constitute "reckless disregard" was affirmed by the Third Department. "[A]lthough he ultimately came into contact with the dirt bike and claimant's ejected body on the side of the road, [the trooper] cannot be faulted for this unintentional contact, it being the unfortunate consequence of his otherwise reasonable evasive efforts to avoid what he thought was to be a collision in the road" (id, at 831).
There are many contrasts between
Schieren and this case. In Schieren, the trooper caught up with the dirt bike, pulled alongside it, gestured for it to pull over, and then fell back to reposition himself behind it, and all of this occurred quickly and within a relatively short distance. In contrast, Trooper Conboy drove alongside the ATV, then pulled in front of it, and either put on his brakes or decelerated. After the ATV passed him, he pulled in front of it again and braked or decelerated again, causing the ATV to come in contact with the back of the police vehicle. He then followed the ATV across to the wrong side of the highway, and proceeded to drive very closely behind it on the shoulder of the road, going in the opposite direction of traffic for some distance.[13] This is a far more intense, prolonged and dangerous chase than the one that occurred in Schieren. Every foot that was traveled increased the chance that some mishap would occur.
In addition, unlike the situation in
Schieren, here there were several contemporaneous references to the trooper's vehicle ramming the back of the ATV. Trooper Conboy himself asked Ms. Burhans if she had seen him hit the ATV, and when she said she had not, asked her if she would make a statement to that effect. This, at the least, evidences some concern on Trooper Conboy's part that someone saw him hit the ATV with his police vehicle. In addition, Christopher told the EMT almost immediately after becoming conscious that he had been hit by the State Police vehicle. At trial, both Christopher and Phillip testified credibly and in detail that the ATV struck the back of the police vehicle when it slowed down suddenly on the southbound side of the roadway. Then the ATV was struck with more serious results, by the front of the police vehicle while traveling on the northbound side.
The two cases also differ markedly with respect to the explanation for the accident that was provided to the Court. In
Schieren, a qualified and experienced accident reconstructionist who had full access to the accident site and all witnesses, and who took advantage of this access, provided an explanation that was logical and fully consistent with the physical evidence and witness statements. In this case, the only expert opinion is meaningless as it was based on a curiously restricted version of the facts. It is left to the Court, therefore, to determine the manner in which the accident occurred, based on the trial testimony and what few physical facts that are known.
Trooper Conboy was driving behind the ATV on the shoulder of the road (see footnote 14). The fact that the ATV was being followed by a vehicle would not have caused Christopher to take evasive action, because the vehicles had been in that position on other occasions during the pursuit. Although Christopher was trying to get to an ATV trail, where the police vehicle could not follow him, that trail was approximately 100 yards ahead to the right of the highway (i.e., next to the southbound lane). Consequently, there was no reason for him to have deliberately driven off the road to the left. Nor is it likely that Christopher, an experienced ATV driver, would have chosen to drive off the paved shoulder where there was a ditch so sloped and which proved too sloped even for an ambulance to drive across. These facts, together with the statements made by Christopher and Trooper Conboy at the scene and the relative credibility of the trial testimony from witnesses and participants, leads the Court to conclude that Trooper Conboy's State Police vehicle did run into the ATV in such a manner as to drive it off the road and down into the ditch.

Does this act, considered together with the earlier part of the pursuit, constitute "reckless disregard"? In the Court's view, it does. While Christopher was committing some traffic infractions (see discussion below), they did not constitute dangerous crimes or pose an immediate threat to public safety. The justification for engaging in a prolonged pursuit is particularly weak, especially since Trooper Conboy testified that he was not attempting to stop the ATV because of the traffic infractions but because he wanted to question the boys about the theft of an ATV that happened to be the same color as the one ridden by the boys. There is nothing in the record to suggest that Christopher's operation of this ATV posed any actual harm to the public or that he could be charged with anything more than minor traffic infractions (
compare Saarinen v Kerr, 84 NY2d 494, 503, supra). It may not have been unreasonable for Trooper Conboy to initiate the pursuit and continue it until he could indicate that he wanted them to pull over even for such minor infractions. Once it became apparent that the boys were not going to pull over, however, Trooper Conboy had to choose whether to continue the pursuit or abandon it, possibly following from a distance to see where the ATV went. The choices he made – continuing the pursuit, repeatedly swapping positions with the ATV, trying to get it to stop by getting in front and stopping (whether quickly or gradually), crossing the highway, and then continuing the pursuit for some distance with both vehicles going in the wrong direction – certainly appears to be intentionally committing 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 with "conscious indifference to the outcome" (Saarinen v Kerr, 84 NY2d 494, 501, supra). This is particularly true when one recalls that this unprotected "race" was between an enclosed sturdily-built police vehicle and an open ATV that was driven by one youngster and carrying another, rather than the one person it was designed to carry. Although they were both wearing helmets, there was nothing else to provide protection for these boys in the event of a collision or other mishap. Once it was clear that they were not going to stop, the pursuit became purposeless and, as it continued, the chances of there being some injury to the ATV's passengers were greatly increased. The justification for the chase – to ask the boys questions about another red ATV – is extraordinarily weak when weighed against the risk of harm. In the Court's view, Trooper Conboy acted with reckless disregard for the safety of the ATV passengers.
Christopher must also accept some responsibility for the accident in which he was injured. He was violating a number of Vehicle and Traffic Laws, although only a few of them would have been apparent to the State Trooper. Christopher's ATV was not registered (Vehicle and Traffic Law § 2282) and was not insured (Vehicle and Traffic Law § 2407). The ATV was being ridden by someone under the age of 16 off his parent's property and with no older supervisor (Vehicle and Traffic Law §§ 2288, 2410). The ATV was being operated on the public highway (Vehicle and Traffic Law § 2403 [with certain exceptions not relevant here]), and it was carrying more than one person although not designed to do so (Vehicle and Traffic Law § 2404[2][4]). Once the pursuit began, and continued, Christopher also violated additional provisions by operating the ATV in a dangerous and reckless manner (Vehicle and Traffic Law § 2404[1][b]) and by failing to comply with a lawful order of a police officer (Vehicle and Traffic Law § 2404[2][b]).

An act or omission is a proximate cause of an injury if it was a substantial factor in bringing about the injury (
Root v Feldman, 185 AD2d 409 [3d Dept 1992]), and an accident or injury may have two or even more proximate causes (Santiago v New York City Hous. Auth., 268 AD2d 203 [1st Dept 2000]). Even where an accident is obviously caused, at least in part, by the negligence of the injured party or a third party, the State may nevertheless be liable if its negligence was a concurrent proximate cause (Humphrey v State of New York, 90 AD2d 901, 902 [3d Dept 1982]). In the instant case, the actions of both parties were proximate causes of Christopher's injuries but the dangerous and quite senseless actions of Trooper Conboy were by far the greater cause. The Court apportions liability 90 per cent on the part of the State and 10 per cent on the part of claimant.
Any motions not heretofore addressed are denied. The Chief Clerk is to enter judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.

Let interlocutory judgment be entered accordingly.

August 11, 2003
Albany, New York

Judge of the Court of Claims

[1]From the pictures taken at the scene of the accident, the ATV lacked a license plate, as is required by 15 NYCRR § 103.2(e).

[2]Trooper Conboy has since become a Sergeant. Because he was a trooper at the time of the incident, the Court will refer to him as a trooper. Claimant's attorney conducted his cross-examination of this witness as if the witness was hostile through the use of leading questions and impeachment due to prior inconsistent statements. The defendant's attorney objected to this line of questioning believing that the witness had not been shown to be hostile pursuant to Schultz v Third Avenue Railroad Company (89 NY 242 [1882]), which states "evidence to show the hostile feelings of a witness when it is alleged to exist should be direct and positive." However, in Becker v Koch, (104 NY 394 [1887]), the Court of Appeals wrote, "[a]n adverse witness may be cross-examined, and leading questions may be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse and that the danger arising from such a mode of examination by the party calling a friendly or unbiased witness does not exist." Whether to permit the questioning of a hostile or adverse witness over an objection rests in the discretion of the trial court (Ostrander v Ostrander, 280 AD2d 793 [3rd Dept 2001]). A witness, who participated in the incident, having a motive to shield himself, as well as his employer, is an interested witness even though he is not a party (Hill v Arnold, 226 AD2d 232 [1st Dept 1996]). When an adverse party is called as a witness, it may be assumed that such witness is hostile, and in the discretion of the court, the direct examination may be conducted like a cross-examination by the use of leading questions. A party may not impeach the credibility of a witness whom he calls unless the witness made prior contradictory statements (Giventer v Rementeria, 181 Misc 2d 582 [1999]). Given the status of the law, Trooper Conboy's interest in the State's position in this litigation, and his obvious prior inconsistent statements, the Court finds that he was an adverse witness; consequently, all his testimony introduced through examination by claimant's counsel is admissible.
[3]Intern Barnes has since become a State Trooper. Because he was an intern at the time of the accident, the Court will refer to him as an intern.
[4]Christopher testified that he saw the trooper mouthing the words "Pull the f*** over, pull over," three to four times (Tr, pp. 191-192).
[5]Trooper Conboy testified that at some point the ATV moved from the paved shoulder to the grass shoulder (Tr, p. 102).
[6]Christopher testified that the ATV may have been on either the paved shoulder or the grass shoulder at the time the police car bumped into him. (Tr, pp. 224-225).
[7]Christopher testified that Trooper Conboy appeared angry with him after the accident. Trooper Conboy asked him, "Why the hell didn't you stop?" Christopher testified that he apologized to the trooper, saying that he just wanted to go home (Tr, p. 203).
[8]Intern Barnes testified that he and Trooper Conboy walked back together to the car. The Court credits Ms. Burhans' testimony as she is a disinterested witness.
[9]The Officer's Notes section of the MV-104 states: "....Operator attempting to turn into open field after operating S/B on St. Rt. 22. Operator failed to reduce speed while entering ditch....Prior to accident operator evading police and numerous orders to stop via police vehicle public address system. Investigation revealed ATV to be unregistered and uninsured."
[10]Q. After this contact that Mr. Barnes advised you of, what actions did

the ATV take at that point in time?
A. The ATV continued south on Route 22 and after crossing in front of

us, he then switched sides of the road. He went over to what would

be the east shoulder of Route 22, continuing southbound.
Q. And then what happened?
A. At this point we also went to the southbound shoulder. I observed

that there was no traffic coming northbound and I proceeded to

cross Route 22 and follow the ATV southbound on the north shoulder.
Q. And then what happened?
A. I relayed to the intern prior to that, that I felt they were going

to either go up a driveway or dart off into a field or a trail, but

they hadn't yet. At this point, we were adjacent to a large farm

field that was on the east shoulder of Route 22, and I anticipated

that they would go into the field or I thought they would do

it a long time before that. We were halfway along the field, but

they drove eastbound towards this field and at which time they

struck a drainage ditch of some sort and the ATV rolled over

[11]Claimant's counsel challenged the qualifications of Sergeant Bonnier to testify as an expert. Sergeant Bonnier testified that he has never testified against the State Police. Therefore, claimant's Counsel wanted to have this witness excluded because he was biased. The Court reserved on this motion. Claimant's counsel also challenged the educational background of this expert witness. Claimant's counsel claimed that since this witness had no degrees in chemistry, physics, engineering or math that he should be excluded as unqualified to render opinions regarding accident reconstruction. The Court reserved on claimant's motions and addresses Sergeant Bonnier's testimony below.
[12] He found no indication of contact between the bike and the passenger side front bumper, which would have been consistent with the claimants' version of events. He did find erasure marks on the driver side front bumper and driver side tire and door, consistent with the trooper's account of colliding with the bike after he had swerved to the right.
[13]The Court rejects Trooper Conboy's testimony that he was driving in the northbound driving lane while the ATV was on the shoulder, primarily because Ms. Burhans, who was driving in that lane, saw both vehicles on the shoulder and passed by both of them without having to take any evasive action. Also, there was much discussion at trial as to which shoulder, the paved or grass shoulder, Christopher was riding on while on the northside of State Route 22. The Court credits Ms. Burhans' testimony and Phillip's testimony that Christopher was on the paved northbound shoulder when he was hit by the State Police vehicle. While it is possible that one of two tires may have touched the grass shoulder, the Court believes that he was, for the most part, on the paved northbound shoulder at the time of impact.