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.
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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JUDITH A. HARD
O'Connell & AronowitzBy: Stephen R. Coffey, Brian Baker and Thomas E. Dolin, Jr., Esqs.
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Esq., Assistant Attorney General,Of Counsel
August 11, 2003
See also (multicaptioned
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
As a result, he was afraid that the ATV might be
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
was working from 11:00 A.M. to 11:00 P.M., and Eric Barnes, an
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
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
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
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.
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,
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."
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
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.
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
(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.
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
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
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.
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.
The seminal case of
Matott v Ward
(48 NY2d 455 ) provides the standards that an expert
witness must meet before a trial judge qualifies such witness as an
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,
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
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
, 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
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.
LIABILITY/STANDARD OF CARE
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;
, Riley v County of Broome
, 95 NY2d 455 ; Saarinen v
, 84 NY2d 494 ). "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
(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 ).
Both parties recognize that the facts of this case most closely replicate those
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
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
There are many contrasts between
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
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
In addition, unlike the situation in
, 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
The two cases also differ markedly with respect to the explanation for the
accident that was provided to the Court. In
, 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
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,
). 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.CLAIMANT'S CULPABLE CONDUCT
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).
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[b]) and by failing to comply with a lawful order of a
police officer (Vehicle and Traffic Law § 2404[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.
, 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
HON. JUDITH A. HARD
Judge of the Court of Claims
From the pictures taken at the scene of the
accident, the ATV lacked a license plate, as is required by 15 NYCRR §
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 ), 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 ), 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
). 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.
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.
Christopher testified that he saw the trooper
mouthing the words "Pull the f*** over, pull over," three to four times (Tr, pp.
Trooper Conboy testified that at some point
the ATV moved from the paved shoulder to the grass shoulder (Tr, p. 102).
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).
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).
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.
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
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
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.
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.
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.