New York State Court of Claims

New York State Court of Claims

THORPE v. THE STATE OF NEW YORK, #2005-009-032, Claim No. 107692, Motion No. M-69828


Synopsis


Defendant's motion for summary judgment was granted, with the court finding no triable issue of fact as to the "reckless disregard" standard of Vehicle and Traffic Law § 1103(b).

Case Information

UID:
2005-009-032
Claimant(s):
DOROTHY BURKE-THORPE and HAROLD JOHN THORPE
Claimant short name:
THORPE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107692
Motion number(s):
M-69828
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ALEXANDER & CATALANO, LLC
BY: Peter J. Addonizio, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 23, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Motion, Affirmation, with Exhibits 1,2


"Reply Affirmation" (Affirmation in Opposition) 3

In this claim, claimant Dorothy Burke-Thorpe[1] 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 553, 557).

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.


May 23, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] The claim of Harold John Thorpe is derivative in nature. Therefore, any references to claimant herein, unless otherwise specified, are to Dorothy Burke-Thorpe.