New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2004-013-044, Claim No. 101518, Motion No. M-67080


Synopsis


Claimant has failed to establish that a special relationship existed between Claimant and the State which would create to act on behalf of the Claimant. The State's motion is therefore granted and the claim is dismissed.

Case Information

UID:
2004-013-044
Claimant(s):
DONALD F. LEE and HATTIE M. LEE
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101518
Motion number(s):
M-67080
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
ADAIR, KAUL, MURPHY, AXELROD & SANTORO, LLPBY: DAVID L. MURPHY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 30, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On September 17, 2003, the following papers were read on motion by Defendant for summary judgment dismissing the claim:

Notice of Motion and Supporting Affirmation of James L. Gelormini, with Annexed Exhibits


Supporting Affidavit of James Reger, with Annexed Exhibits


Supporting Affidavit of Scott Ritchie with Annexed Exhibits


Opposing Affirmation of David L. Murphy, with Annexed Exhibits


Filed Papers: Claim; Amended Answer

Factual Background

At approximately 12:30 p.m. on March 4, 1999, Claimant,[1] Donald F. Lee, was injured when he was involved in a head-on collision with a van owned by Griffith Oil Company while traveling westbound on Route 39 in the County of Wyoming, State of New York. Earlier that day a state of emergency had been declared in the County of Wyoming due to heavy snow and whiteout conditions. All roads in the county were closed except for emergency vehicles (press release, annexed to the affidavit of James Reger as Exhibit 1).

Sergeant Scott Ritchie, employed by the New York State Park Police, was headed eastbound on Route 20A to work at Letchworth State Park at about 7:45 a.m., when he encountered a vehicle off the road in a ditch and approximately eight to ten other cars stopped on either side of Route 20A. Sergeant Ritchie called for a tow truck. Shortly thereafter, Deputy Daniel Hummel of the Wyoming County Sheriff's Department and James Reger, Wyoming County Emergency Coordinator, arrived at the scene. As Emergency Coordinator, Mr. Reger was responsible for Wyoming County's response to emergencies (see ¶1, Reger affidavit). Mr. Reger advised that a state of emergency had been declared in Wyoming County and together Mr. Reger, Deputy Sheriff Hummel and Sergeant Ritchie discussed various options to get the stranded motorists to safety.

Approximately between 10:00 and 10:30 a.m., Claimant was driving his 1999 Toyota Camry westbound on Routes 20A and 39. He had just left the home of his friend's father in Livingston County and was headed to his home in Perry, New York, located in Wyoming County. Before leaving, he was aware of a travel ban in Livingston County. When he arrived at the intersection commonly known as "Pine Tavern,"[2] where Routes 20A and 39 diverge, he encountered a Wyoming County Sheriff's Department blockade preventing vehicles from traveling on either Route 39 or Route 20A (see, p. 40 of Claimant's deposition annexed to Murphy affirmation as Exhibit E).

Eventually, a plan was formulated whereby traffic would be diverted west on Route 20A and then south on Route 246 into the Village of Perry where James Reger, as Emergency Coordinator for the County of Wyoming, had arranged for a shelter to be set up for the stranded motorists (see, ¶4 and ¶5, Reger affidavit). This initial plan was unsuccessful because the motorists could not proceed up a small hill on Route 20A due to icy road conditions (see ¶11, Ritchie affidavit).

An alternative plan was formulated whereby the stranded motorists would travel westbound on Route 39 into the Village of Perry. James Reger made arrangements to close all eastbound traffic on Route 39 from the Village of Perry and arranged for New York State Department of Transportation snowplows to plow Route 39 from the Pine Tavern area into the Village of Perry. Another Wyoming County Deputy Sheriff, Ivan Carrasquillo, was then to drive westbound on Route 39 into the Village of Perry to verify that the plowing would permit the vehicles to proceed. Once these arrangements were in place, the stranded motorists were permitted to travel westbound on Route 39 (¶7, ¶8 and ¶9, Reger affidavit).

Deputy Carrasquillo testified that Deputy Hummel made the initial decision to direct the stranded motorists to the fire hall on Routes 246 and 20A in Perry Center for their safety, but he did not know who decided to divert the motorists down Route 39 as opposed to Route 20A (see pages 16 and 17 of Carrasquillo's deposition transcript, annexed to Murphy affirmation as Exhibit B). Carrasquillo activated his emergency lights and followed a snowplow toward the Village of Perry which was approximately 2 to 3½ miles from the Pine Tavern area. He was followed by seven to nine vehicles. At one point, Deputy Carrasquillo became stuck in a snowdrift in his lane on Route 39 but managed to get himself freed. He traveled to the intersection of Route 39 and Simmons Road, just outside the Village of Perry, where he remained for a good portion of the remainder of his shift, stopping traffic from going eastbound on Route 39 (Exhibit B, pp. 18, 19, 22, 24, 26 and 28). He described the road conditions on Route 39 as being almost impassable and described the visibility as "very limited" (Exhibit B, pp. 19 and 21).

At approximately 10:00 a. m., Deputy Hummel positioned his vehicle in the middle of the intersection of Routes 20A and 39 to inform motorists of the travel ban in Wyoming County (see pp. 14, 15 and 17 of Deputy Hummel's deposition transcript annexed to Murphy affirmation as Exhibit C). At some point, a group of eight to ten motorists, who mostly lived in the Village of Perry, were allowed to follow two snowplows and Deputy Carrasquillo from the Pine Tavern area down Route 39 toward the Village (Exhibit C, pp. 39 and 47). Park Officer Ritchie was to follow behind to give assistance if necessary, according to Deputy Hummel (Exhibit C, p. 62).

Sergeant Ritchie stated, however, that he remained with Deputy Hummel and other stranded motorists at the Pine Tavern area and only proceeded down Route 39 after hearing a radio transmission that not all of the vehicles which had left with the snowplows and Deputy Carrasquillo made it to the Village of Perry. According to Ritchie, Deputy Hummel asked him to look for the missing motorists as he was driving a four-wheel drive vehicle (¶17, Ritchie affidavit; pp. 41 and 42 of Ritchie deposition transcript annexed to Murphy affirmation as Exhibit D).

Sergeant Ritchie proceeded on Route 39 toward the Village of Perry. He first encountered two vehicles involved in a rear end collision. Ahead of them he found a third vehicle stopped in the middle of the road, and finally he found a fourth vehicle in a ditch a short distance from the Village line (Ritchie affidavit, ¶ 18). The fourth vehicle was apparently Claimant's vehicle. Ritchie ascertained the condition of the motorists in these vehicles and then continued into the Village to look for other stranded motorists. When he arrived at the Village line, he saw a blockade manned by the Village of Perry Fire Department and by Wyoming County Sheriff Deputy Carrasquillo who were preventing vehicles from traveling out of the Village of Perry eastbound on Route 39 (Ritchie affidavit, ¶19 and ¶20).

While in the Village, Sergeant Ritchie called a tow company and then returned first to Claimant's vehicle in the ditch. Ritchie explained to the Claimant that he should continue cautiously into the Village and that he would encounter en route one large snowdrift, mostly in the westbound lane. Ritchie explained that he had gotten stuck in this drift a few minutes earlier when he had driven into Perry, but was able to back out of it and drive around it because he had four-wheel drive. Ritchie advised Claimant to drive around this snowdrift and that there was a blockade at the Village line preventing motorists from traveling eastbound out of the Village of Perry (Ritchie affidavit, ¶21 to ¶24; Ritchie deposition, Exhibit D to Murphy affirmation, pp. 48 to 51; Claimant's deposition, Exhibit E to Murphy affirmation, pp. 58 to 59).

After being pulled out of the ditch, Claimant continued to travel westward toward the Village of Perry. At all times Claimant attempted to keep his vehicle in the one westbound lane of travel and never intentionally moved his vehicle into the one eastbound lane of travel (Exhibit E, pp. 60 to 62). He believed that he might have been traveling in the center of the roadway as he just attempted to drive straight ahead from the point he was left after being pulled out of the ditch (Exhibit E, p. 121). Claimant had only been driving for a few minutes at a speed of about 20 m.p.h. when he encountered periods of zero visibility caused by blowing snow. During one of these "whiteouts," Claimant's vehicle collided with the Griffith Oil Company (Griffith) van. Claimant did not see the van before impact and did not know what lane he was traveling in at the time of impact (Exhibit E, pp. 66 to 68).

On March 4, 1999, Gerald D. Sanders was a service technician employed by Griffith. At approximately 8:30 a.m., he left Griffith's facility in Pearl Creek, Wyoming County, and headed to a service call on Sherman Road in Perry (Sanders deposition, Exhibit 3 to Gelormini affirmation, pp. 9 and 11). After completing this call, Griffith sent him to another service call at a house located on Route 39 at Old Acres Farm. When he approached the intersection of Route 39 and Simmons Road, he encountered a fire department blockade in the intersection. Sanders advised one of the firemen that there was a woman in a house about a half mile down Route 39 with two little kids and no heat. He was allowed to proceed (Exhibit 3, pp. 28, 29, 31, 33 and 34). After completing the service call, Sanders maneuvered the1994 Ford van he had been driving from the shoulder where he had parked back onto Route 39 and headed eastbound with his flashers on and a yellow light flashing on top of the van (Exhibit 3, pp. 10, 49, 50 and 51). As he approached a hill, he encountered a whiteout. Sanders put on his brakes to slow down and saw headlights in front of him. He attempted to steer the van into the ditch, but collided with Claimant's vehicle in the eastbound lane of Route 39 (Exhibit 3, pp. 50 to 53).

The dispatcher for the Wyoming County Sheriff's Department contacted Deputy Hummel to make him aware of the accident involving the Claimant and the Griffith van. Hummel traveled to the accident scene by taking 20A west to Simmons Road and then east on Route 39. When he passed through the intersection of Simmons Road and Route 39 he observed the fire department blocking the intersection (Exhibit C, pp. 26 and 29). According to Hummel, the accident scene was approximately 2 to 2 ½ miles from his original location at the intersection of Routes 20A and 39 (the Pine Tavern area), and approximately 1½ to 2 miles from the intersection of Simmons Road and Route 39 near the Village of Perry (Exhibit C, pp. 61 and 59). Deputy Hummel investigated the accident and concluded that Claimant's vehicle had crossed over into the oncoming lane of traffic and had collided head-on with the Griffith van, which had been traveling eastbound on Route 39 due to a broken down furnace in a residence on Route 39 (Exhibit C, pp. 25, 26, 56 and 58). Hummel could not recall if the Claimant's vehicle was completely in the van's eastbound lane, but believed that a majority of his vehicle was in the opposing lane (Exhibit C, p. 28).
Decision

In his bill of particulars, Claimant alleges that the State negligently permitted the Claimant and others to travel on Route 39 during a declared state of emergency; failed to ascertain the existence of other vehicles on Route 39; negligently "ordered" Claimant to travel in a westbound direction in the eastbound lane without determining if the road was clear of snow or other vehicles; and by failing to provide Claimant with an "emergency vehicle escort" (see ¶2, Claimant's bill of particulars annexed to the Gelormini affirmation, as part of Exhibit 6). These are the exact same allegations of negligence set forth in Claimant's bill of particulars against Wyoming County in Claimant's State Supreme Court action (see bill of particulars in Supreme Court action, annexed to the Gelormini affirmation, as part of Exhibit 6). Defendant contends that the actions complained of were all the actions of the Wyoming County Sheriff's Department, for which the State may not be held responsible; that the State is immune from liability; and that the actions of the State Park Police Sergeant Scott Ritchie were not negligent. These contentions will be addressed separately against the background of the emergency situation which had developed on the day of this accident in Livingston and in Wyoming Counties.

The initial issue is whether the actions complained of in the claim or in the bill of particulars are discretionary or ministerial governmental actions. If the actions complained of involve the exercise of reasoned judgment which could produce different results, then they are discretionary actions and the municipality is entitled to immunity from liability, even if its discretionary actions were performed negligently. However, if the actions complained of required adherence to a governing rule, with a compulsory result, then the actions are ministerial and liability may be imposed if the actions were performed negligently (Lauer v City of New York, 95 NY2d 95). Here, all of the actions complained of involved the regulation of traffic during an unfolding emergency situation. Such actions are discretionary governmental actions for the protection and safety of the public pursuant to the general police powers (Balsam v Delma Eng'g Corp., 90 NY2d 966), for which the State is entitled to governmental immunity (DiFlorio v Worden, 303 AD2d 924; Kenavan v City of New York, 70 NY2d 558).

The State argues that the immunity for discretionary actions is absolute, and no consideration need be given to the existence or absence of a special relationship. I disagree. The Court of Appeals, as recently as March of 2004, has reiterated that while "municipalities are immune from tort liability when their employees perform discretionary acts involving the exercise of reasoned judgment... we have upheld tort claims when plaintiffs have established a ‘special relationship' with the municipality" (Pelaez v Seide, 2 NY3d 186, 193). A special relationship may be formed in three circumstances: "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez v Seide, 2 NY3d 186, supra at 199-200). Claimant bears the burden of establishing the special relationship (id., 199).

Claimant has not alleged the violation of a statute which authorizes a private right of action. As such, he has failed to establish a special relationship through the breach of a statutory duty, the first method discussed by the Court of Appeals in Pelaez (supra). Nor has Claimant alleged the existence of a "known, blatant and dangerous safety violation" as existed in Smullen v City of New York (28 NY2d 66), and, thus, has failed to establish a special relationship through the third method discussed by the Court of Appeals (Pelaez v Seide, supra at 203). Rather, Claimant argues that the State assumed a duty upon which Claimant justifiably relied. This is the second method of creating a special relationship (Pelaez v Seide, 2 NY3d 186, supra at 202).

The criteria for establishing a special relationship by this method was first laid out in Cuffy v City of New York (69 NY2d 255), and include: "(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (Pelaez v Seide, 2 NY3d 186, supra at 202 [citing Cuffy]).

With respect to the initial criteria, many of the actions complained of in the claim and bill of particulars which Claimant alleges give rise to an assumption of a duty, were actions undertaken by Wyoming County for which the State may not be held responsible (Isereau v State of New York, 207 Misc 665, affd sub nom Walker v State of New York, 3 AD2d 812). For example, it was the Emergency Coordinator for Wyoming County, James Reger, who was responsible for the general, overall supervision of and response to emergencies in the county and who made the arrangements for the blockade at the intersection of Route 39 and Simmons Road to prevent traffic from proceeding eastbound on Route 39. While Parks Police Sergeant Ritchie may have been involved in the initial discussions with Emergency Coordinator Reger and Wyoming County Deputy Sheriff Hummel regarding ways to get these stranded motorists to safety, this involvement amounts to no more than traffic control for which the State has immunity (see (DiFlorio v Worden, 303 AD2d 924, supra), without some communication between Parks Officer Ritchie and the Claimant regarding the plan, because no special relationship can be established pursuant to the third prong of the Cuffy test without direct communication (D'Avolio v Prado, 277 AD2d 877). Here, according to Claimant, it was Deputy Hummel, and not Parks Officer Sergeant Ritchie, who advised Claimant to proceed westbound on Route 39 to the Village of Perry (Exhibit E, pp. 41, 49 and 120).[3]

In fact, there was only one direct communication between Parks Officer Sergeant Ritchie and Claimant from which any special relationship giving rise to a duty could have emerged. This communication occurred on Route 39 after Claimant had proceeded westbound on Route 39 pursuant to Deputy Hummel's direction and had gotten stuck in a ditch. Apparently, Deputy Hummel and Parks Officer Sergeant Ritchie learned at some point that not all of the vehicles which had left the Pine Tavern area had made it into the Village of Perry. Sergeant Ritchie, who was driving a four-wheel drive vehicle, headed westbound on Route 39 in search of the missing motorists.[4] He located four stranded motorists. After ascertaining their condition, Ritchie proceeded into the Village and called a tow truck for the vehicle in the ditch. Before leaving the Village, he observed fire personnel and Deputy Carrasquillo manning a roadblock at Route 39 and Simmons Road preventing vehicles from traveling out of the Village eastbound on Route 39.

Sergeant Ritchie returned to Claimant and, after the tow truck had pulled Claimant out of the ditch, told him to proceed to the Village where he would be directed to a shelter. Ritchie also told Claimant that he would encounter one large snowdrift which he (Claimant) should drive around and that there was a blockade in the Village preventing eastbound traffic on Route 39.

With respect to the fourth element of the Cuffy test, Claimant alleges that he detrimentally relied on Sergeant Ritchie's advice to travel around the snowdrift in the eastbound lane and thus put himself in a worse position than if he had gotten stuck in the snowdrift in the westbound lane because by driving in the eastbound lane he was in the path of vehicles that could have come from one of the feeder roads on Route 39 or from one of the houses on Route 39. Claimant's argument is faulty on several levels. Claimant is correct, however, that in order to satisfy the fourth element of the Cuffy test, Claimant's reliance must have placed him in a worse position (see Helman v County of Warren, 111 AD2d 560, affd 67 NY2d 799). Here, Claimant had seen no other traffic, and with the travel ban having been in place for several hours it was not reasonable to suspect that he would encounter another vehicle in the eastbound lane from a house on Route 39 or from one of the feeder roads off Route 39. In fact, Claimant saw no such vehicle and the Griffith vehicle with which Claimant collided came through the blockade at Simmons Road and Route 39. Moreover, Claimant never relied on Sergeant Ritchie's advice to drive around the snowdrift. In his deposition, Claimant testified that he was attempting to stay in his lane of travel and at no time intentionally moved his vehicle into the eastbound lane. The mere fact that he ended up in the eastbound lane at the time of the impact with the Griffith vehicle, due to poor visibility and whiteout conditions, does not alter the fact that he could not have relied on anything said by Sergeant Ritchie about driving in the eastbound lane to avoid a snowdrift as he never intentionally attempted to drive in the eastbound lane of traffic. Because there was no detrimental reliance, the fourth element of the Cuffy test is missing and no special relationship between Claimant and the State was created out of which any duty to act on behalf of the Claimant could have arisen.

Finally, even if a special relationship had existed and a duty to act on behalf of Claimant thereby created, there is no proof of a breach of any such duty. The accident occurred when Claimant's vehicle ran into the Griffith vehicle which had entered Route 39 through the blockade. At no time did the State of New York assume any control over the Griffith vehicle or over the blockade, which was manned by the Village fire department and by Deputy Carrasquillo and set up by the Emergency Coordinator for the County of Wyoming, James Reger.

Accordingly, Defendant's motion for summary judgment is granted and Claim Number 101518 is dismissed.



August 30, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1] The claim of Claimant, Hattie M. Lee, is derivative only. Unless otherwise noted, all references to Claimant shall refer to Donald F. Lee only.
  2. [2]Claimant did not know why the area is commonly referred to as Pine Tavern as there is no bar or tavern at the intersection.
  3. [3]There is some discrepancy as to whether Claimant left with the initial group of cars or left shortly thereafter as part of a "second caravan." It makes no difference, however, with respect to this decision.
  4. [4]Sergeant Ritchie testified that Deputy Hummel requested that he look for the missing motorists because he was driving a four-wheel drive vehicle (Ritchie affidavit, ¶17; Ritchie memorandum to Chief Page, dated March 4, 1999, attached to Ritchie affidavit as part of Exhibit 2). Deputy Hummel testified that Sergeant Ritchie had left the Pine Tavern area with the group which included Deputy Carrasquillo and Claimant (Exhibit C, p. 61). In his police report of March 5, 1999, Deputy Hummel stated that Ritchie was "assisting" with any stuck vehicles because of his four-wheel drive vehicle (Police Report, p. 2, attached to the affidavit of Sergeant Ritchie as part of Exhibit 2).