seek damages arising from an automobile accident which occurred on
April 1, 1995, on Interstate Route 81 in Oswego County, just north of
the Parish Exit (Exit 33). On that date, claimant Donna Jo
was proceeding north when her vehicle was struck head-on by another vehicle
proceeding south in the north lanes of Route 81. Claimant suffered severe
injuries in this collision, and the driver of the other vehicle, one Eric Lamb,
As established by the evidence and testimony at trial, the
facts and circumstances immediately preceding, and resulting in, this accident
are not in dispute. New York State Trooper Edwin Croucher was positioned along
Route 81 on the outskirts of Pulaski, New York, during the early evening of
April 1, 1995, when he observed a white Mazda being driven erratically and
proceeding south in the southbound lanes of Route 81. Trooper Croucher began to
follow this vehicle, which he subsequently learned was operated by Eric Lamb.
After confirming, by radar, that the Lamb vehicle was proceeding at
approximately 95 miles per hour, Trooper Croucher activated his emergency lights
and began to close directly behind the Lamb vehicle. A minute or two after his
initial observation of the vehicle, Mr. Lamb slowed down and turned left onto
the “Tinker Tavern Road U-Turn” turnaround or crossover. Mr. Lamb,
however, did not stop his vehicle, but instead continued through the turnaround,
then turned right and began to proceed south in the northbound lanes of
Route 81. At that point, Trooper Croucher immediately contacted the radio
control point in Watertown to advise his supervising officer of this situation.
Trooper Croucher continued to follow the Lamb vehicle in a southerly
direction in the northbound lanes of Route 81, with his flashing lights and
siren activated. According to Trooper Croucher, it quickly became evident that
Mr. Lamb was attempting to drive his car into oncoming vehicles that were
northbound on Route 81. He testified that Mr. Lamb was driving extremely fast,
at speeds averaging 90 miles per hour, but that he was also driving very
erratically, weaving between lanes as well as straddling the two northbound
lanes, and swerving his car into the northbound traffic in an obvious attempt to
collide with these vehicles.
As they approached the Parish Exit, Trooper
Croucher observed a black pickup truck proceeding north at a slow rate of speed,
apparently attempting to move out of the passing lane of northbound Route 81.
He then observed Mr. Lamb drive his vehicle directly at this pickup truck and
striking it head-on. This black pickup truck was the vehicle operated by
claimant Donna Jo Wojtasik, and she suffered severe injuries in this collision.
Trooper Croucher’s pursuit of the Lamb vehicle lasted slightly more
than five minutes, during which time Mr. Lamb covered approximately eight miles
proceeding south in the northbound lanes of Route 81.
In her trial
testimony, claimant testified that she was proceeding north on Route 81 on this
day, with her mother, Donna Myers, following her in a separate vehicle.
Claimant and her mother were proceeding from Maryland to claimant’s home
in Copenhagen, New York. Claimant, however, had no recollection whatsoever of
this accident, having spent approximately three and one-half weeks in a coma
following the accident.
Claimant’s mother, Donna Myers, testified
that she was following her daughter, and shortly before the accident they were
both in the left (passing) northbound lane of Route 81. When she noticed
flashing lights from a State Police vehicle approaching, Donna Myers was able to
pull over onto the right lane, and then onto the shoulder of the highway. There
was quite a bit of traffic at this time, and claimant, Donna Jo Wojtasik, was
apparently unable to make the same maneuver. Donna Myers did not observe the
actual collision between her daughter and Mr. Lamb, but she went to
claimant’s vehicle immediately after the accident to comfort her daughter.
Claimants and the defendant have both previously moved for an order of
. In a Decision and Order to these motions dated January 9,
, this Court determined that the actions of Trooper Croucher in pursuing the
Lamb vehicle, even into oncoming traffic, should be viewed under the
“reckless disregard” standard of Vehicle and Traffic Law §
1104(e). Furthermore, the Court also found, as a matter of law, that Trooper
Croucher’s pursuit of Mr. Lamb into the northbound traffic of Route 81 was
not a violation of this standard of care. Prior to trial, this Decision and
Order was affirmed by the Appellate Division, Fourth Department (4 AD3d 855).
As a result, there was no testimony at trial questioning the actions or conduct
of Trooper Croucher in his pursuit of the Lamb vehicle. Quite to the contrary,
the actions of Trooper Croucher have been viewed as heroic in nature, as he
attempted to warn oncoming traffic that a speeding vehicle was intentionally
proceeding against them at a high rate of speed.
however, also contains allegations of negligence against Trooper
Croucher’s superior officer, the officer responsible for supervising this
vehicular pursuit from the radio control point in Watertown. In its prior
Decision and Order referred to above, this Court determined that the actions of
this off-site supervising officer should be evaluated under ordinary principles
of negligence. The Court also held that there was a question of fact as to
whether the actions of this off-site supervising officer were cloaked with
As mentioned previously, as soon as the Lamb
vehicle turned south onto the northbound lanes of Route 81, Trooper Croucher
radioed the control point in Watertown to advise his supervising officer of this
emergency situation. Shortly thereafter, and within one minute of his first
transmission, Trooper Croucher testified that he initiated a radio transmission
to the Watertown control point in which he requested permission to take the Lamb
vehicle off the road by vehicle contact action (see Exhibit 7, a transcript of
the radio transmissions made during this pursuit). According to Trooper
Croucher’s testimony, however, this request was cut off and was not fully
broadcast to the Watertown control point.
At the time of this pursuit,
Michael Clark was the Zone Sergeant at the Watertown barracks, and he was the
officer who would be in charge of directing and supervising police pursuits. At
the time of this pursuit, however, Sergeant Clark was not in the building, and
in his absence, Sergeant David Reese was the supervising officer, and was
therefore responsible for directing this particular pursuit. The radio
transmissions made by Trooper Croucher were therefore directed to Sergeant
Reese, who was present at the radio control point in Watertown with a civilian
radio dispatcher, Janna Shaffrey.
A second request for vehicle contact
action was made by Trooper Croucher at approximately 2 minutes and 20 seconds
into the pursuit (see Exhibit 7). Again, according to Trooper Croucher’s
testimony, this request was interrupted by other radio traffic and also was not
Shortly thereafter, at approximately three minutes into
the pursuit, Trooper Croucher made another radio request to take the Lamb
vehicle off the road by vehicular contact.
During the course of the
pursuit, it is undisputed that Sergeant Reese never responded to any of these
requests for vehicle contact action. As a result, Trooper Croucher continued
his pursuit of the Lamb vehicle in the northbound lanes of Route 81 for
approximately 5 minutes and 20 seconds, over a distance of approximately eight
miles, until Mr. Lamb collided with the Wojtasik vehicle.
sections of the New York State Police Field Manual, setting forth practices and
procedures governing police pursuits, were received into evidence at trial
(Exhibit F). These provisions require a pursuing officer to consider and
evaluate certain factors when considering and engaging in a vehicular pursuit.
Such factors include, but are not limited to, the safety of the officer and
other motorists, the type of vehicles involved, road and weather conditions,
time of day, traffic density, and tactical preparations. Pursuant to the
manual, a supervising officer is required to obtain this information from the
pursuing officer for use in directing and coordinating the pursuit, as well as
in determining the appropriate type of legal intervention (such as vehicle
Sergeant Reese, who was supervising this pursuit,
testified that when he first heard a request from Trooper Croucher requesting
vehicle contact intervention (at approximately 2 minutes and 20 seconds into the
pursuit) he immediately decided that such intervention was not appropriate, and
that he would not authorize such action. He further testified that he did not
verbalize this decision to Trooper Croucher because he was concerned that
Trooper Croucher might hear only part of his communication and, therefore,
misinterpret his directive and possibly engage in vehicle contact action. He
testified that he made a conscious decision to remain silent, and he further
testified that Trooper Croucher would interpret his silence as a denial of his
Sergeant Reese also testified that rather than authorizing
vehicle contact action, he attempted to set up a roadblock by calling the State
Police Barracks in North Syracuse. Sergeant Reese testified that during the
pursuit, he spoke with Trooper Richard Sauer at the North Syracuse State Police
Barracks to set up this roadblock.
The Court, however, is not persuaded by
any of Sergeant Reese’s testimony that he made up his mind early on in
this pursuit that he would not authorize vehicular contact, and further is not
persuaded that he took any other action during the course of this pursuit, as
would be expected of a supervising officer. Quite frankly, the Court is not
convinced that Sergeant Reese took any affirmative action, or made any decision,
during the course of this pursuit.
Janna Shaffrey, the civilian dispatcher
who was present with Sergeant Reese during the course of this pursuit, testified
during her deposition that it appeared to her that Sergeant Reese was
“pondering” or “thinking” (see Exhibit 2, page 38)
during the entire pursuit. The Court finds no evidence, aside from Sergeant
Reese’s self-supporting testimony, that a conscious and reasoned decision
had been reached by him that vehicular contact should not be initiated.
Additionally, Janna Shaffrey could not definitively corroborate that
Sergeant Reese had made any phone calls during the pursuit. Furthermore,
although his deposition testimony was received into evidence (Exhibit 5),
Trooper Sauer did not appear at the trial to corroborate Sergeant Reese’s
testimony that he had been contacted to set up a roadblock. As a result, the
Court is not convinced that Sergeant Reese made any effort whatsoever to pursue
possible alternative methods to end this pursuit.
One thing, however, is
clear. Based upon Sergeant Reese’s testimony and the transcript of the
radio transmissions, it is obvious that Sergeant Reese never provided any
directive to Trooper Croucher in response to his repeated requests for vehicle
contact action, nor did he attempt to obtain any relevant information from
Trooper Croucher (as required by the New York State Police Field Manual) that
would have allowed him to make a reasoned decision upon an appropriate course of
conduct. As established by the transcripts of the radio transmissions, Sergeant
Reese failed to make any inquiries whatsoever as required by the Manual. He
failed to obtain pertinent (and very basic) information regarding this pursuit -
such as the speed of the vehicles, traffic volume, road conditions and
surrounding terrain, and weather conditions, which would have allowed him to
make a reasoned decision as to whether to approve Trooper Croucher’s
request for vehicle contact action. Quite simply, Sergeant Reese left Trooper
Croucher without any guidance or instruction as he pursued the Lamb vehicle the
wrong way on northbound Route 81.
The Court must agree with Richard
Turner, claimants’ expert witness in police pursuit policies, that
Sergeant Reese “did nothing”
to assist or supervise Trooper Croucher in this pursuit, by failing to obtain or
assess relevant information so that he could reasonably decide whether to
authorize vehicle contact action. Whether it was a “yes” or a
“no”, Trooper Croucher was entitled, and deserved, a response to his
request, which Sergeant Reese failed to provide
The Court finds that when decisive action was required, Sergeant Reese
did nothing: he failed to make any inquiries (as required by the Manual) in
order to obtain very basic information on which he could base a decision on
appropriate actions to take, and failed to provide any response whatsoever to
the requests made by Trooper Croucher. Sergeant Reese was unwilling, or unable,
to properly assess the situation, and therefore failed to make any reasoned or
rational decision as to the appropriate course of action to be taken by Trooper
Croucher. Based upon his failure to take any action whatsoever, the Court finds
that his complete inaction constitutes negligence.
Since the Court has
determined herein that Sergeant Reese failed to properly perform his required
duties as supervising officer of this pursuit, and that his inaction constitutes
negligence, claimants contend that liability must necessarily be assessed
against the State. It is their position that had Sergeant Reese properly
assessed and evaluated the situation, he inevitably would have authorized
vehicle contact action by Trooper Croucher, thus avoiding the collision which
ultimately occurred with the Wojtasik vehicle. Essentially, liability is based
solely upon Sergeant Reese’s failure to follow the guidelines of the State
Police Field Manual, resulting in his failure to authorize vehicular contact by
This Court, however, is not convinced that Sergeant
Reese, had he properly assessed the situation, would have necessarily authorized
Trooper Croucher to initiate vehicular contact. Furthermore, even if Sergeant
Reese had in fact authorized Trooper Croucher to initiate such contact, this
Court cannot conclude that Trooper Croucher would have had the opportunity to
take such action and, significantly, that any such action would have been
successful in taking the Lamb vehicle off the road. As has been well
established herein, Mr. Lamb was operating his vehicle at a high rate of speed,
approaching 90 miles per hour, and was driving into, and trying to strike,
oncoming traffic. One can expect that if Trooper Croucher had initiated action
for vehicular contact, Mr. Lamb would have himself taken further evasive action.
Additionally, as set forth in his trial testimony, Trooper Croucher had never
attempted a vehicle contact action previously, and this Court cannot presume
that he would have been successful in taking out the Lamb vehicle under the
difficult and highly dangerous circumstances which were present in this pursuit.
Simply stated, Mr. Lamb’s erratic operation of his vehicle at a high rate
of speed into oncoming traffic would have made any intervention by Trooper
Croucher extremely risky, both to Trooper Croucher and to others on the highway.
This Court cannot assume that such action, if authorized and initiated, would
have been successful in preventing this accident.
Therefore, although the
Court is extremely sympathetic to claimants for the injuries suffered by them in
this unfortunate accident, the Court must conclude that the actions taken by Mr.
Lamb in the operation of his vehicle, taken as a whole, constitutes a
significant intervening action superceding any negligent conduct on the part of
Sergeant Reese, and as such, must be found to be the sole proximate cause of
this terrible accident. It is entirely too speculative for this Court to find
that Sergeant Reese, had he appropriately considered all relevant factors, would
have then authorized Trooper Croucher to initiate vehicle contact; that Trooper
Croucher would have then had an opportunity, within the time frame of this
pursuit and under exigent circumstances, to take such action; and that such
action would then have been successful in removing the Lamb vehicle from the
road prior to the collision with the Wojtasik vehicle.
Since this Court
finds proximate cause lacking despite the negligent conduct of Sergeant Reese,
it has not addressed defendant’s further contentions, set forth in its
post-trial memoranda, that Sergeant Reese’s actions are entitled to
governmental immunity, or that claimants were required to establish a special
relationship in order to recover on their claim, and that they failed to do so.
Therefore, the claim of Donna Jo Wojtasik, as well as the related claim of
her mother, Donna Myers, and the derivative claim of John W. Wojtasik, must all
Any motions not heretofore ruled upon are hereby
LET JUDGMENT BE ENTERED ACCORDINGLY.