Motion, Affirmation, with Exhibits 1,2
"Reply Affirmation" (Affirmation in Opposition) 3
In this claim, claimant Dorothy Burke-Thorpe
seeks damages for personal injuries suffered by her in a motor vehicle accident
which occurred on February 13, 2003 on Route 481 in the Town of Schroeppel,
Oswego County. On that date, shortly before 9:00 p.m., claimant was traveling
north on Route 481 during a heavy winter snowstorm when her vehicle was struck
in the rear end by a New York State Department of Transportation snowplow.
According to claimant's deposition testimony (see Exhibit A to Items 1,2), she
had stopped her vehicle in the roadway in order to assist another motorist who
had driven his car off the road during the snowstorm. She was in the process of
moving her car in an attempt to get off the roadway when it was struck from
behind by the snowplow, and pushed into the other vehicle.
In his deposition testimony (see Exhibit B to Items 1,2), Robert S. Maclean, an
employee of the State Department of Transportation and the operator of the
snowplow, testified that he was in the process of plowing Route 481, and was
operating a dual-wing large dump truck with one plow wing down when this
accident occurred. He was alone in the snowplow at the time of the accident.
As he was plowing, he testified that he was scanning the road ahead, but that he
never saw claimant's vehicle in the road prior to striking it. After striking
the car, he radioed ahead and advised dispatch that he had struck a vehicle, but
continued with his route without stopping to further investigate the accident.
Defendant now seeks summary judgment dismissing this claim, contending that the
"reckless disregard" standard Vehicle and Traffic Law § 1103(b) applies to
the undisputed facts of this claim, and that claimant will be unable, as a
matter of law, to establish that the snowplow operator acted recklessly.
Pursuant to § 1103(b) of the Vehicle and Traffic Law, the normal rules of
the road do not apply to "hazard vehicles while actually engaged in hazardous
operation on or adjacent to a highway," and that the operator of such a vehicle
is only responsible for the "consequences of their reckless disregard for the
safety of others." Snowplows engaged in snow removal operations are considered
hazard vehicles within the meaning of § 1103(b) (Riley v County of
Broome, 95 NY2d 455). Operators of snowplows are therefore exempt from the
normal rules of the road and are liable only for conduct that constitutes
reckless disregard for the safety of others. The Court of Appeals has defined
reckless disregard for the safety of others as the "conscious or intentional
doing of an act of an unreasonable character in disregard of a known or obvious
risk so great as to make it highly probable that harm would follow, and done
with conscious indifference to the outcome" (Szczerbiak v Pilat, 90 NY2d
On a motion for summary judgment, the proponent must make a prima
facie showing of entitlement to judgment as a matter law, presenting
sufficient evidence to demonstrate the absence of any material issues of fact
(Winegrad v New York Univ. Med. Center, 64 NY2d 851). Once the showing
has been made, the burden then shifts to the party opposing the motion who must
then produce sufficient evidentiary proof to establish the existence of material
issues of fact which would require a trial (Alvarez v Prospect Hospital,
68 NY2d 320). Summary judgment is considered a drastic remedy which deprives a
party of its day in court and therefore should not be granted where there is any
doubt as to the existence of a material issue of fact (Moskowitz v
Garlock, 23 AD2d 943).
In this matter, defendant has produced the deposition testimony of the drivers
of both vehicles involved in this incident, as well as the police accident
report for this accident. There is no dispute whatsoever that Mr. Maclean was
actually engaged in plowing snow at the time that he struck claimant's vehicle.
Based on these submissions, the Court finds that defendant has established a
prima facie case for judgment in its favor as a matter of law
(Winegrad v New York Univ. Med. Center, supra). Claimant has not
raised any triable issue of fact that the snowplow was being operated in
reckless disregard of others. The fact that Mr. Maclean did not notice
claimant's car on the roadway before he struck it (during whiteout conditions)
and that he did not immediately stop to further investigate can, at best, be
characterized as negligence which cannot possibly rise to the level of
recklessness required by § 1103(b). Therefore, even considering these
facts in a light most favorable to claimant, the Court finds no viable
contention of recklessness.
Based upon the foregoing, therefore, it is
ORDERED, that Motion No. M-69828 is hereby GRANTED; and it is further
ORDERED, that Claim No. 107692 is hereby DISMISSED.