New York State Court of Claims

New York State Court of Claims

LEONARD v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2004-032-123, Claim No. 107659, Motion No. M-68824


The standard of liability established in Vehicle and Traffic Law §1103 applies to this claim, and defendant's motion for summary judgment dismissing the claim is granted on the ground that if defendant's actions were negligent, such negligence could not rise to the level of reckless disregard.

Case Information

WILLIAM G. LEONARD and MARGARET MIRIAM LEONARD The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York and the New York State Thruway Authority are the only properly named defendants.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York and the New York State Thruway Authority are the only properly named defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Tabner, Ryan and Keniry, LLPBy: Tracy L. Bullett, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Saul Aronson, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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[1] 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 Law.

Factual Evidence

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 caution mode.

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., 28).[2]

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 past.

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 [1985]). 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 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). 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 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

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.

December 14, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendants' motion for summary judgment dismissing the claim:

1. Notice of Motion and Supporting Affirmation of Saul Aronson, Esq, AAG, with annexed Exhibits;

2. Affidavit in Opposition of Tracy L. Bullett, Esq., with annexed Exhibits and Brief in Opposition;

Filed papers: Claim; Answer

[1] The claim of Margaret Miriam Leonard is derivative in nature. Unless otherwise indicated or required by context, the term "claimant" shall refer to William Leonard.
[2] A color photograph of the bright yellow truck is contained in Exhibit D of the Bullett affidavit. Black and white photographs of the truck, which had been moved from its original position, and claimant's vehicle immediately after the accident are contained in Exhibit J of that affidavit.