New York State Court of Claims

New York State Court of Claims

WOJTASIK v. THE STATE OF NEW YORK, #2006-009-161, Claim No. 95722


Synopsis


Claimants sought damages for personal injuries suffered by claimant Donna Jo Wojtasik in an automobile accident when her vehicle was struck head-on by another vehicle which was proceeding the wrong way on Route 81, while being pursued by a New York State Police Trooper. Claimants alleged that the police officer supervising the vehicular pursuit from the radio control point was negligent, while the State contended that his actions were cloaked with governmental immunity. Although the Court found that the supervising officer failed to properly perform his required duties as supervising officer, the Court found that the actions of the driver of the vehicle which collided with claimant were the sole proximate cause of the accident.

Case Information

UID:
2006-009-161
Claimant(s):
DONNA JO WOJTASIK, JOHN W. WOJTASIK JR. and DONNA MYERS
Claimant short name:
WOJTASIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95722
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
CHERUNDOLO, BOTTAR & LEONE, P.C.
BY: Edward S. Leone, Esq.,Of Counsel.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 29, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimants
[1]
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 Wojtasik
[2]
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, was killed.
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 summary judgment
[3]
. In a Decision and Order to these motions dated January 9, 2003
[4]
, 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.

This claim, 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 governmental immunity.
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 fully transmitted.
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.
Pertinent 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 contact action).
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 request.
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”
[5]
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
[6]
.
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 Trooper Croucher.
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 be dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

June 29, 2006
Syracuse, New York

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




[1]. The claim of John W. Wojtasik is derivative in nature to the claim of Donna Jo Wojtasik, while the claim of Donna Myers, the mother of Donna Jo Wojtasik, is based upon damages allegedly suffered by her in witnessing the accident involving her daughter. Accordingly, all references to claimant, unless otherwise specified, are to Donna Jo Wojtasik.
[2]. At trial, claimant identified herself as Donna Jo Myers. In order to avoid any possible confusion with her mother and fellow claimant, Donna Myers, in this decision the Court will refer to her as either “claimant” (see Footnote 1) or “Donna Jo Wojtasik”, as set forth in the caption of this claim.
[3]. Motion No. M-64094 (defendant’s motion for summary judgment dismissing the claim), and Motion No. CM-64835 (claimants’ cross-motion for an order of summary judgment on the issue of liability).
[4]. Wojtasik v State of New York, Ct Cl, January 9, 2003, Midey, J., Claim No. 95722, Motion No. M-64094 and Cross Motion No. CM-64835.
[5]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[6]. The Court considered but gave little weight to the testimony of Reginald F. Allard, Jr., defendant’s expert on police driving issues. The Court found that Mr. Allard was not sufficiently familiar with New York State Police policies or the State Police Field Manual.