New York State Court of Claims

New York State Court of Claims

DUMOULIN v. THE STATE OF NEW YORK, #2004-015-415, Claim No. 107300, Motion Nos. M-68375, CM-68516


Court found no liability arose from operation of snowplow on Northway absent proof of reckless disregard for safety of users of the highway. Claimant's cross-motion to dismiss State's counterclaim for damage to snowplow was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Law Offices of Stephen A. Johnston
By: Stephen A. Johnston, Esquire

Ainsworth, Sullivan, Tracy, Knauf, Warner and Ruslander, P.C.,
By: Vincent J. DeLeonardis, EsquireAttorneys for Joseph D. Dumoulin on the Counterclaim
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 9, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment seeking an order dismissing the claim on the ground that the defendant's non-liability may be determined as a matter of law is granted. Claimants' cross-motion for summary judgment seeking dismissal of the State's counterclaim for property damage to a State owned vehicle is denied. The claim filed on February 7, 2003 seeks damages for personal injuries and property damage to claimants' motor vehicle sustained in a two vehicle accident which occurred at approximately 7:20 a.m. on December 12, 2002 in the northbound lanes of Interstate 87 (the Northway) in the Town of Peru, Clinton County. At the time of the accident Joseph Dumoulin was the driver of a 1998 Subaru motor vehicle and his wife Hannelore was a front seat passenger. The Dumoulins had left their home in Jay, New York that morning and headed toward their mutual place of employment at the Chazy Central School District in Chazy, New York. Claimants allege that the accident was caused by an unsafe and unsignaled lane change made by a State owned 1997 International tandem axle dump truck which, at the time, was configured as a snowplow and equipped with a sander for dispensing sand and/or salt operated by Bernard P. Whalen, an employee of the New York State Department of Transportation (DOT).

In its answer the State asserted a counterclaim for property damage to the snowplow incurred when the Dumoulin vehicle collided with the State owned vehicle.

The defendant moves for summary judgment asserting that Vehicle and Traffic Law § 1103 (b) exempts snowplows engaged in highway work from the "rules of the road" and limits liability of the owners and operators of such vehicles to conduct evincing a reckless disregard for the safety of others. Claimants' opposed the motion contending that Bernard Whalen either was not engaged in highway work at the time of the accident or that his actions immediately prior to the collision manifested reckless disregard for claimants' safety. Alternatively, claimants argue that material issues of fact regarding such issues preclude summary judgment. Claimants cross-moved for summary judgment seeking dismissal of the State's counterclaim for property damage resulting from the accident.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

In addition to copies of the pleadings, bill of particulars and transcripts of the examinations before trial of Joseph D. Dumoulin, Hannelore Dumoulin and Bernard Whalen the defendant also submitted a copy of New York State Department of Transportation Plattsburgh shop weather event report for December 12, 2002; a copy of New York State Department of Transportation Highway Maintenance Division Supervisor's Daily Report dated December 12, 2002; a hand written accident report prepared by Bernard Whalen; and a copy of an unauthenticated police accident report (MV-104A) in support of the motion.

There are minor differences in the accounts of the Dumoulins and the snowplow operator as to the events preceding the accident. Although not critical to the Court's legal determination in this case they will be discussed seriatim.

Mr. Dumoulin testified at his EBT and in his affidavit submitted in opposition to the defendant's motion that he first observed the snowplow as it was exiting the Valcour rest area on the east side of the highway's two northbound lanes of travel. He recalled that he was in the right hand or driving lane of traffic traveling at about 60 mph[1] when he noticed the snowplow in the first half of the acceleration lane (ramp) by which traffic exited the rest area and reentered the highway. According to the claimant the snowplow had its lights on and was "very visible". Mr. Dumoulin allegedly transitioned from the right lane into the left (passing) lane which he described as covered by a thin film of slush and slowed his vehicle to less than 60 mph.

Mr. Dumoulin testified that the snowplow entered the right lane of the highway and proceeded in a continuous movement across both lanes of travel into the passing lane directly in front of claimants' vehicle. Claimant applied his brakes and his vehicle began to fishtail. He then released the brakes and sought to avoid contact by attempting to enter the right lane but struck the State's vehicle from behind in the approximate center of the highway between the two travel lanes before he could complete the maneuver. When his vehicle hit the rear of the snowplow the claimants' vehicle "exploded inward on [them]." Claimant recalled telling the investigating trooper that "I don't understand why I couldn't get by him on the right."

Hannelore Dumoulin testified at her examination before trial that she first saw the snowplow at the end of the Valcour rest area acceleration ramp. She could not recall if the plow's lights were on but expressed no difficulty in seeing the vehicle as it entered the highway. She estimated her vehicle's speed at 55 mph and recalled first observing the snowplow while her vehicle was "somewhere just past the entrance into the rest area." She was unable to estimate the snowplow's speed except to say that it was moving at a slower rate of speed than was the claimants' vehicle. Mrs. Dumoulin testified that her husband slowed down to switch lanes and that she observed the snowplow move forward for a while in the right hand lane "then all of a sudden it came over" [into the passing lane]. Neither she nor her husband recalled observing the plow use its left turn directional signal.

Mrs. Dumoulin recalled her husband asking if she could see around the plow as it entered the passing lane to which she responded affirmatively. She estimated that the collision occurred between ten and twenty seconds after the snowplow entered the passing lane. She observed that the snowplow was not dispensing materials onto the roadway prior to impact but was not certain whether the State's vehicle was plowing at that point in time. The witness estimated the snowplow's speed at less than 20 mph observing that "it seemed like he wasn't doing anything" and estimated her vehicle's speed in the passing lane at approximately fifty miles per hour. Mrs. Dumoulin had no recollection of the impact between the two vehicles. She testified that neither her husband nor the snowplow driver sounded their horn prior to impact.

Bernard Whalen testified at his examination before trial that on the morning of December 12, 2002 he was called into work due to a "winter occurrence" which he described as light snow. The witness stated that he reported to the DOT Plattsburgh Office located on South Pearl Street near the Skyway Shopping Center at approximately 2:00 a.m. Although his title was bridge repair mechanic he regularly operated a snowplow and sander during the winter months and possessed a Class A commercial driver's license which enabled him to legally operate vehicles over 18,000 pounds.

On the morning of the accident he was dispatched to his usual assigned beat which encompassed the northbound and southbound lanes of Interstate 87 from U-turn #5 to U-turn #18. His truck was described as a 1997 International tandem equipped with a box containing salt, a sander and a magnesium chloride dispenser. The vehicle was also equipped with a snowplow with two side wings.

The witness did not recall his exact route from the Plattsburgh office that morning but did recall approaching the Valcour rest area from the south. His truck was equipped with a computer operated dispensing system which was set to permit a light flow of salt sprayed with magnesium chloride to be distributed. The volume of salt dispensed was programmed to increase or decrease according to the speed of the vehicle. He spent approximately 20 minutes salting the Valcour rest area to address what he described as a "refreeze". He alleged that when he left the Valcour rest area his intention was to proceed to crossover # 7 which was located a short distance north of the rest area. He was not certain of the mileage between the rest area and the crossover but stated that he continued to dispense salt from the back of his vehicle as he traveled between the rest area and crossover "7". Once through the crossover Whalen intended to proceed southerly to another rest area located adjacent to Interstate 87's two southbound lanes.

Whalen testified that upon leaving the Valcour rest area he observed two vehicles approaching from the rear through his driver's side mirror, one in the driving lane and one in the passing lane. He estimated the elapsed time between first seeing the approaching vehicles and hearing a noise (presumably signaling the impact of the two vehicles) was "more than a minute." He allegedly traveled approximately 500 feet in the northbound passing lane prior to hearing the noise and no vehicles passed his vehicle prior to impact. He heard no horns during that time and reported that his speed was approximately two mph. After hearing the noise Whalen brought his vehicle to a stop with no part of his vehicle in either of the highway's travel lanes and radioed for emergency medical and police assistance.

In addition to the transcripts defendant also submitted a certified DOT business record showing a weather related incident on December 12, 2002 with conditions described as rain to the south and freezing rain to the north. Another record, a supervisor's daily report, demonstrates that Bernard Whalen worked 8 hours at regular time and 3.50 hours of overtime between 01:30 and 13:30 hours on December 12, 2002.

A copy of an unsigned, handwritten note describing his account of the accident was identified by Mr. Whalen at his EBT as something he prepared at the request of his supervisor Gary Sorrell whose signature appears on the document. Finally, defendant submitted a copy of an unauthenticated police accident report (MV-104A [7/01]) signed by Trooper B.M. Davison.

Claimants' opposition to the motion consists of an affidavit of counsel, a copy of claimants' discovery demand dated June 6, 2003 and the defendant's response thereto which includes an unauthenticated report of a State Police investigation of the accident; a copy of the same unauthenticated police accident report (MV-104A [7/01]) submitted by the defendant on its motion; a copy of a truck and bus supplemental police accident report (MV-104S [11/93]); and an affidavit of Joseph D. Dumoulin sworn to May 24, 2004. Mr. Dumoulin's account of the accident is essentially the same as the account provided at his examination before trial except that in the affidavit he alleges that as he steered right to avoid a collision with the snowplow the State's vehicle without warning also began to move back into the right or driving lane. This new allegation of movement to the right by the snowplow aligns claimant's description of the accident with the allegations contained in the two police reports (MV104A) but is not contained in his EBT testimony or that of Mrs. Dumoulin and Mr. Whalen.

Vehicle and Traffic Law § 1103 (b) provides as follows:
Unless specifically made applicable, the provisions of this title, except the provisions of sections eleven hundred ninety-two through eleven hundred ninety-six of this chapter, shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway nor shall the provisions of subsection (a) of section twelve hundred two apply to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation. The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.

In the companion cases of Riley v County of Broome and Wilson v State of New York (95 NY2d 455) the Court of Appeals clarified the standard of care to be applied to State or municipal defendants in cases involving vehicles engaged in work on a highway. The Court held that pursuant to Vehicle and Traffic Law 1103(b), when engaged in "work on a highway" vehicles such as snowplows and street sweepers are exempt from the rules of the road and liability may be imposed upon the owner or operator of such vehicles only upon a showing of reckless disregard for the safety of others.

Because the recklessness standard imposed upon vehicles engaged in work on a highway under § 1103 (b) is the same as that applied to emergency vehicles in Vehicle and Traffic § 1104 (e) the Court held that both categories of vehicles are to be held to the same standard of care; that first pronounced in Saarinen v Kerr (84 NY2d 494) in which the Court stated at page 501 that the "reckless disregard" standard of care "demands more than a showing of a lack of 'due care under the circumstances' – the showing typically associated with ordinary negligence claims. It requires evidence 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 (Prosser and Keeton, Torts § 34, at 213 [5th ed.]; see, Restatement [Second] of Torts § 500)."

Claimants have argued in opposition to the motion that Whalen either was not "actually engaged in work on a highway" or that his actions demonstrated a reckless disregard for the safety of others. In regard to the former premise claimants rely upon the case of Marvin v Town of Middlesex, (2002 WL 58928, affirmed 300 AD2d 1112). There, a pedestrian standing between two parked vehicles was struck by one of those vehicles when it in turn was struck by a town vehicle being used to haul gravel for road repairs from the town barns to a road construction site approximately four miles from the accident scene. Supreme Court declined in that case to find that the statutory exemption found in Vehicle and Traffic Law § 1103 (b) for vehicles engaged in work on a highway applied to driving a vehicle to and from the site of a work area. The Appellate Division affirmed on the decision below.

The decision in Marvin v Town of Middlesex (supra) is distinguishable from the facts of the instant matter. In Marvin the truck operator was simply hauling gravel from one location to another. He had no responsibility for Williams Street where the accident occurred and was not following an assigned route. More instructive with regard to determination of this motion is the decision of the Appellate Division, Third Department in Sullivan v Town of Vestal (301 AD2d 824). The Court there upheld a grant of summary judgment in favor of the defendant where a motorist collided with a truck being operated by a town highway supervisor who was in the process of inspecting a work site. The supervisor had left his own work site to inspect the site of another supervisor for debris and other hazards. The proof offered in support of the motion established that "it was the practice of all supervisors working for the Town to check on each other's job sites at the end of each day" (Sullivan at page 824). The Court affirmed Supreme Court's finding that the town supervisor was acting within the scope of his duties at the time the accident occurred noting that "[n]o testimony contradicted (the supervisor's) description of the scope of his duties and all indicia of his operation of the vehicle demonstrated that his work had not yet been completed for the day" (Sullivan at page 825). As a consequence, the Appellate Division found that the supervisor was actually engaged in work on a highway for purposes of Vehicle and Traffic Law § 1103 (b). A similar circumstance is present with regard to the instant matter.

The affidavit of DOT Clinton County Resident Engineer Scott Docteur, the testimony of Bernard Whalen at his examination before trial and the certified weather event and supervisor's daily reports submitted by the defendant establish that Mr. Whalen reported to work at 1:30 a.m. (see Exhibit I, supervisor's daily report) on Thursday, December 12, 2002. Light snow and freezing rain began to fall at approximately 2:00 a.m. and Whalen began to plow and salt his normal beat beginning at 2:30 a.m. Mr. Whalen's beat ran between crossover "5" approximately one mile south of Northway exit 35 and crossover "18" two miles north of exit 40, and included the Valcour rest area adjacent to the northbound lanes of I-87 and another rest area along the southbound lanes of traffic. The accident involving the claimants' vehicle occurred at crossover "7" a short distance north of the Valcour rest area.

Claimants do not challenge the proof proffered by the defendant regarding Bernard Whalen's assigned duties and hours of work, the location of the accident site or the parameters of his assigned beat which included the Valcour rest area which he had just departed after applying salt, crossover "7" where the accident occurred and another rest area along the southbound lanes of I-87 to which he was traveling at the time of the accident. Under the circumstances reflected in this record it is clear that Bernard Whalen was actually engaged in his assigned task of patrolling his beat at the time the accident occurred. It matters not whether he was actually plowing or dispensing salt at the precise moment of impact. Unlike in Marvin v Town of Middlesex (supra) the operator here was assigned the duty of maintaining a specific portion of I-87. That duty related directly to the subject roadway and it was while he was engaged in carrying out his responsibilities that the contested actions took place. As a result, the Court finds as a matter of law that at the time of the accident at issue herein the snowplow was "actually engaged in work on a highway" and the actions of the snowplow operator must be judged according to a "reckless disregard" standard of care pursuant to Vehicle and Traffic Law § 1103(b) (see, Farese v Town of Carmel, 296 AD2d 436; Skolnick v Town of Hempstead, 278 AD2d 481).

While Whalen's actions in crossing from the rest area's acceleration ramp to the driving lane to the passing lane in preparation for his left turn into crossover #7 appears to have been negligent when measured against an ordinary negligence standard of care, it did not amount to reckless disregard for the safety of the claimants. The proof establishes that the snowplow's warning lights were engaged at the time the accident occurred. Whalen either failed to properly check for traffic approaching from the rear, miscalculated the speed of the Dumoulin's approaching vehicle or erroneously assumed that he could successfully maneuver his vehicle across the travel lanes to the crossover without incident. Such conduct constitutes a simple misjudgment of the relevant facts which while potentially negligent does not rise to the level of intentional conduct of an unreasonable character in disregard of a known and obvious risk of probable harm accomplished with conscious indifference to the outcome (see Szczerbiak v Pilat, 90 NY2d 553).

Under all of the circumstances the Court finds that the defendant has met its burden of proving that at the time of the accident at issue herein Bernard Whalen was actually engaged in work on a highway for purposes of Vehicle and Traffic Law § 1103 (b). In the absence of proof demonstrating reckless disregard for the safety of others by Mr. Whalen in the operation of his vehicle, or raising a material issue of fact in that regard, the defendant's motion for summary judgment dismissing the claim must be granted.

Claimants' cross-motion to dismiss the counterclaim must, however, be denied. The cross-motion is supported by an affidavit of counsel who is without direct knowledge of the facts, oblique references therein to the claimants' examinations before trial which were submitted on the defendant's motion and an unauthenticated copy of the New York State Police collision reconstruction unit's accident investigation report attached as part of Exhibit B to Stephen A. Johnston's affidavit in opposition to the motion. The unauthenticated report is not in admissible form and its contents cannot serve as a basis for summary judgment determining the cause of the accident or the absence of contributory or comparative negligence on the part of Joseph D. Dumoulin (see Szymanski v Robinson, 234 AD2d 992; Master Cars v Young, 256 AD2d 1188, 1189; Mooney v Osowiecky, 235 AD2d 603; see also Figueroa v Luna, 281 AD2d 204, 205). So too, the "affidavit or affirmation of an attorney, not based upon personal knowledge, 'is without evidentiary value and thus unavailing' (Zuckerman v City of New York, 49 NY2d 557, 563)" (Ciaccia v Moore, 159 AD2d 957). The Court finds that claimants' submissions on the cross-motion fail to establish a prima facie showing of entitlement to judgment as a matter of law on the State's counterclaim. The cross-motion must therefore be denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

Defendant's motion for summary judgment dismissing the claim is granted. Claimant's cross-motion seeking dismissal of the State's counterclaim is denied.

August 9, 2004
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 28, 2004;
  2. Affidavit [sic] of Michael C. Rizzo dated April 28, 2004 with exhibits;
  3. Affidavit of Scott A. Docteur sworn to April 12, 2004 with exhibits
  4. Affidavit of Stephen A. Johnston sworn to May 25, 2004 with exhibits;
  5. Affidavit of Joseph D. Dumoulin sworn to May 24, 2004;
  6. Notice of cross-motion dated May 28, 2004;
  7. Affidavit of Vincent J. DeLeonardis sworn to May 28, 2004;
  8. Affidavit of Michael C. Rizzo sworn to June 1, 2004;
  9. Affidavit of Vincent J. DeLeonardis sworn to June 2, 2004.

[1]The posted speed limit in the area was 65 mph