After full discovery, defendants have moved for summary judgment dismissing
this action. The claim arose on January 24, 2003 at approximately 11:00 A.M. on
the New York State Thruway (I-87) just south of Exit 23 near milepost 144.2.
Claimant William Leonard
was driving in the
southbound lane. A truck, equipped with a snowplow, that was owned by the New
York State Thruway Authority (Authority) was on the shoulder of the southbound
lane. The claim alleges that the truck's operator, Theodore Reed, had the
snowplow blade down and that it was "sticking into the entire right southbound
lane" of the Thruway and completely blocking that lane (claim, ¶ 5).
Claimant's vehicle struck the snowplow blade. The claim also alleges that
claimant suffered a "serious injury" as the term is defined by section 5102 of
the Insurance Law.
Claimant and his wife have instituted this action to recover for claimant's
physical injuries, loss of consortium on the part of his wife, and property
damage, the loss of their 1993 Eagle Summit sedan. In its answer, defendants
raised as affirmative defenses the qualified immunity conferred in Vehicle and
Traffic Law §§ 1103 and 1104 and the absence of any serious injury.
Defendants now move for summary judgment dismissing the claim on the grounds
that they were not negligent in any way, that claimant's own negligence was the
sole proximate cause of the accident and that, even if there was some negligent
action on the part of defendants that also contributed to the accident, such
action did not rise to the level of "reckless disregard" that is required for
liability to be imposed pursuant to section 1103(b) of the Vehicle and Traffic
Shortly after the accident, Theodore Reed, the operator of the snowplow,
provided a statement describing the accident (Aronson, Exhibit F). He related
that his assignment on that morning was to tow a rented VMS (variable message
sign) board to milepost 144.2 SB (southbound) and exchange it for another VMS
Board that was already at the location. I pulled up and stopped on the
southbound, right-hand shoulder. I had my partner, Lou Lezatte, get out of the
truck and watch traffic. Lou also put a couple of cones along the edge of the
shoulder. I started to back up my truck on the shoulder and attempted to back
the VMS board next to the other one. I did this three times to try to get the
VMS board in the right position. Each time I backed up, I checked my mirrors for
traffic and also watched my Spotter, Lou. On my third attempt, I did not see any
vehicles, and suddenly heard a "noise." I looked up and saw a car go by and saw
a fender and some debris on the road. . . . Also, as I was attempting to back
up, all my lights on my truck were operating and the rear arrow board was in the
At his examination before trial (id.
, Exhibit G), Mr. Reed stated that he
was a 15-year employee of the Authority, had never had his driver's license
suspended or revoked, and had never before been involved in an accident. On the
day in question, the sun was shining and the road was dry. Before leaving the
maintenance shop, he checked to make sure that all the lights on the truck were
working, filled it with gas, and checked the tire pressure. The truck he
described as a "small dump truck" (id.
, p 11) used primarily for plowing
snow and hauling arrow boards and trailers (id.
, p 15). On January 24,
2003, a snowplow was already attached to the front ram, and there was nothing in
the dump in the rear of the truck. He was very familiar with this particular
truck, having driven it primarily during the winter for the past four years.
Reviewing a picture of the controls inside the truck, Mr. Reed stated that the
two levers which controlled movement of the plow (one for up and down movement
and the second for rotation) were in the middle position, which meant that it
was not being operated at that time (id.
, pp 19-20). Mr. Reed himself had
hooked up the message board, which incorporated its own trailer, behind the
truck. The board's trailer is equipped with directional signals (id.
Upon arriving at the location where they were to exchange the VMS boards, Mr.
Reed parked the truck and put on the safety lights and directional lights, and
his partner set out some cones "just for extra safety purpose" (id., p
30). There were more than three cones, he stated, and his partner set them about
ten feet apart (id., p 52). Mr. Reed stated he was in the truck "trying
to maneuver my dump truck so I could get the message board" (id., p 30).
On the third try, immediately after he brought the truck to a complete stop, he
stated, "[a]ll of a sudden I heard a hit, saw no one coming" (id.). He
stated that he had performed this type of task more than a dozen times in the
Mr. Reed testified that the description contained in the accident report filled
out by the State Troopers who reported to the scene (id., Exhibit E) was
essentially accurate. That description stated: "V-1 backing on shoulder with
snow plow partially in Driving Lane. V-2 in Driving lane struck snow plow
blade." Mr. Reed received no traffic ticket in connection with this incident.
At the time of the accident, according to Mr. Reed, the truck's four beacons
and four-way flashers were lit, the four corner lights or the arrow board in the
back of the truck were turned on, and the trailer's lights were on (id.,
Exhibit G, pp 52-53, 73-74). The truck's mirrors were working, and Mr. Reed
checked them each time he tried to place the new VMS board next to the one
already there. In addition, his assistant, Mr. Lezatte was standing at the back
of the truck to watch for oncoming traffic (id., p 58). Mr. Reed
described his awareness of the accident: "I started backing up, still it wasn't
in the position that I wanted to be in so I pulled back. I stopped. All of a
sudden I heard something, bang." (id., p 67). As he was backing up, the
truck was entirely on the shoulder, with its plow blade "probably on the white
line but not on the driving lane" (id., p 69). Immediately prior to the
accident, claimant saw no approaching vehicles, although there was nothing
obscuring his vision of the mirrors and the roadway behind him was flat.
Louis Lezatte, the laborer who accompanied Mr. Reed on this work assignment,
testified at his examination before trial (Exhibit H) that he was quite familiar
with the dump truck used on this assignment. He stated that in addition to the
truck's safety devices, the plow blade itself had reflective tape on the sides
and the back "so if your plow cocked and a car is coming up, they can see it
reflecting" (id., pp 13-14). His testimony agreed with that of Mr. Reed
regarding the lights that were flashing on both the truck – front, back
and side – and the VMS board. He stated that the traffic was fairly light,
approximately five cars a minute, and he was able to simply wave the oncoming
cars over to the inside lane, which was empty. Around 11:00 A.M., however, he
related the following: "I saw a car coming at me. If I didn't get out of the
way, he would have hit me, and I knew what was going to happen, and I couldn't
do anything" (id., p 18). At the time of impact, he stated, the truck was
entirely off the roadway, on the shoulder, while the plow extended approximately
two and a half feet out into the road (id., p 19). He believed that Mr.
Reed was slowly backing up the truck when it was hit. After impacting with the
plow blade, the car drove past and came to rest about one-half mile down the
road (id., p 24).
Claimant William G. Leonard, a retired school teacher who was seventy-nine
years old in January 2003 (DOB August 21, 1923), also testified at an
examination before trial (Exhibit I). He stated that the vehicle he was driving
on the day of the accident, an American Eagle, was in good operating condition
and had been owned by him for seven or eight years. His vision is good, he
stated, being 20/20 with correction (id., p 20). The only medication he
was taking was one for heart fibrillation.
At the time of the accident, he had left his home and was going to his
retirement position at the Job Corps in order to get a check. As he recalled it,
the accident occurred at approximately 9:30 A.M. as he proceeded down the
Thruway, he did not see any cones or flashing lights but did see the truck with
the plow blade down. "I could not turn left because of the traffic going, going
down so I tried and I just hit – I hit the corner end of the plow"
(id., p 9). The driver of the truck appeared to him to be working on the
snow bank, plowing, with the big blade up and the other blade down on the
highway (id., pp 9, 13). A short while later in the deposition, claimant
stated that he did not see the truck or the blade until the moment of impact
(id., p 10). At that time, the truck was filling up about one-half of the
driving lane, with the other half off the road on the shoulder. He believed that
the truck was moving, towards him, at the time of impact (id., p 13) and
estimated that his speed was about 50 or 55 miles per hour (id., p 15).
He had been able to slow down a bit by applying his brakes just before the
accident. Claimant stated that he was shaken but declined to have the State
Trooper call an ambulance for him.
Applicable Law and Discussion
Defendants' position, as noted above, is that the defendants are not liable
because claimant's own negligence was the sole proximate cause of the accident
or, alternatively, that if there was any negligence on the part of the
defendants' employees, it did not rise to the level of "reckless disregard."
Pursuant to section 1103(b) of the Vehicle and Traffic Law, more than ordinary
negligence must be proven before liability can be imposed when the accident
involves a motor vehicle that is "actually engaged in work on a highway." To
meet this standard, the injured party must prove 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" (Saarinen v Kerr, 84 NY2d 494, 501, quoting Prosser and Keeton,
Torts [5th ed.] §34, at 213; see also, Riley v County of
Broome, 95 NY2d 455).
Counsel for claimants asserts that summary judgment is inappropriate here
because there are unresolved questions of material fact. Specifically, these
questions are said to be the following: 1) the exact position of the snow plow
and blade at the time of the accident, 2) whether the Thruway Authority's truck
was moving or stationary at the time of the accident, and 3) whether the safety
cones were in place, as claimed, to serve as warning devices (Bullett Brief in
Opposition, pp 10-16).
Summary judgment is a drastic remedy that should only be granted when there are
no outstanding issues of material fact (Redcross v Aetna Cas. & Sur.
Co., 260 AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853 ). The Court's task is issue
finding, not issue determination, and before judgment can be granted it must be
clearly ascertained that there are no triable issues of fact outstanding
(Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002], citing to
Matter of Suffolk County Dept. of Soc. Servs. v James M., 83 NY2d
178, 182  and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d
395 ). In order to fulfill the Court's function in deciding a motion for
summary judgment, the proof must be examined in a light most favorable to the
party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d
776 [3d Dept 1999]). The moving party must make a prima facie showing of
entitlement to judgment as a matter of law, proffering sufficient evidence to
demonstrate the absence of any material issues of fact (Winegrad v New York
Univ. Med. Ctr., 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 ).
None of the factual issues cited by claimants are sufficiently "material" to
the action to make summary judgment inappropriate. Even if there was undisputed
proof that the blade of the snowplow covered half the width or more of the
driving lane, that the truck was backing up slowly rather than standing still at
the moment of impact, or that the cones were either not set out or not visible
to claimant, the central issue of – whether defendants' actions were so
reckless as to make it probable that harm would result – would still be
decided in favor of the defendants. All of the participants agree that the day
was sunny and that the roadway was clear and dry. Testimony and photographic
evidence establish that the road at that location was flat and thus that there
was good visibility for a southbound driver at some considerable distance before
the truck would be reached. The fact that claimant does not recall seeing
flashing lights or reflective strips is not conclusive of the fact that they
were not present. Even if they were not, it was daylight, the truck itself was
quite large, and it had to be easily observed, giving sufficient time for
claimant to either move into the left lane, if it was safe to do so or to slow
down or stop if he had to remain in the left lane.
Momentarily having the snowplow blade in the driving lane, during a period of
light traffic and with excellent visibility, is simply not a grossly negligent
act of the nature needed to satisfy the statutory standard. For liability to be
imposed when the vehicle in question is one that is actually performing road
work, intentional conduct and a far greater probability of harm is required.
Therefore, even if all the relevant facts are viewed in the light most favorable
to claimants and the actions of the defendants' employees were considered to be
negligent, they represented at most ordinary negligence and would be
insufficient to meet the statutory requirement that reckless disregard be
proven. (See, e.g., Erie Insurance a/s/o Schoen Place Auto v State of
New York, UID #2004-031-103, Claim No. 107974, Motion No. M-68681, August
30, 2004, Minarik, J. [summary judgment dismissing claim in which it was alleged
that snowplow operator failed to see a vehicle and pushed it into a guide rail];
Vanweddinger v New York State Thruway Authority, UID #2004-010-016, Claim
No. 107608, Motions Nos. M-68251, CM-68305, May 10, 2004, Ruderman, J. [summary
judgment dismissing claim in which it was alleged a tow-truck struck another
vehicle in the rear]; Nationwide v New York State Thruway Authority, UID
#2002-031-046, Motion No. M-65187, September 23, 2002, Minarik, J. [motion to
late file denied on ground that there was no merit to a claim alleging a
snowplow operator initiated an unsafe lane change and struck another vehicle];
Swiercz v New York State Thruway Authority, UID #2000-015-515, Claim No.
97301, July 21, 2000, Collins, J. [judgment directed in favor of defendant where
snowplow struck a tractor-trailer lawfully parked on the shoulder of the
roadway]; Gawelko v State of New York, UID #2000-005-506, Claim No.
95731, Motion No. M-59239, April 10, 2000, Corbett, J. [summary judgment
dismissing claim in which it was alleged snowplow traveled at an unsafe speed
and accidentally moved into opposing lane of traffic]; Hazzard v State of New
York, #2000-018-001, Claim No. 99182, Motion No. M-60896, April 4, 2000,
Fitzpatrick, J. [summary judgment dismissing claim where snowplow operator
misjudged distance and struck a vehicle he was attempting to pass]).
Inasmuch as claimants would be unable, as a matter of law, to prove that the
defendants are legally liable for their injuries, defendants' motion is granted
and Claim No. 107659 is dismissed.