5,6 Filed papers: Claim, Answer
Amelia Fabbri alleges in Claim Number 110480 that on or about February 20, 2003
she was injured in a motor vehicle accident during a snow removal operation by
Defendant’s agents, the New York State Department of Transportation (DOT).
She was operating her 2003 Nissan automobile traveling northbound on Route 9A,
as she approached its intersection with Stormytown Road in Ossining, New York
where snow removal operations were ongoing. As she neared the snow removal area
she alleges that she was “negligently, carelessly and recklessly . . .
directed [by DOT employees] to turn into oncoming traffic”, resulting in
her collision with another vehicle as she made a left turn toward westbound
Stormytown Road from northbound Route 9A, across the oncoming traffic from
southbound Route 9A. [Claim No. 110480, ¶¶10, 12, 13]. Ms. Fabbri
also alleges that the DOT breached it duty to maintain the state roadways in a
reasonably safe condition, and “negligently failed to properly deploy
flagmen . . . negligently failed to deploy signal devices to control traffic; .
. . and failed to exercise reasonable care during its operations.”
In its Answer, in addition to general denials, the State asserted 14
Affirmative Defenses including its Eleventh Affirmative Defense that the acts
complained of are privileged pursuant to Vehicle and Traffic Law §1103(b),
in that they are activities performed by Defendant in the course of the
maintenance of its highways. Defendant now moves for summary judgment dismissing
the claim premised upon its Eleventh Affirmative Defense.
Assuming a movant has made a prima facie
showing of entitlement to
judgment as a matter of law by proffering sufficient evidence to eliminate any
genuine material issues of fact, the party in opposition to the motion for
summary judgment must tender evidentiary proof in admissible form to establish
the existence of material issues which require a trial. Winegrad v New York
University Medical Center
, 64 NY2d 851 (1985); Zuckerman v City of New
, 49 NY2d 557 (1980). While it is not the best practice, the use of an
attorney’s affirmation appending pertinent deposition testimony,
documentary evidence, and a verified pleading reciting material facts, is not a
fatal procedural flaw in a presentation. Alvarez v Prospect Hospital
NY2d 320, 325 (1986).
Defendant has attached the depositions of Amelia Fabbri, Claimant, [Affirmation
in Support of Motion for Summary Judgment by Vincent M. Cascio, Exhibit F];
David Lock, a DOT employee working at the scene of the accident, [ibid.
Exhibit G]; Paul Huntley, the driver of the truck that collided with
Claimant’s car, [ibid. Exhibit H]; and Darren Heater, the DOT
supervisor at the scene, [ibid. Exhibit I]; as well as copies of the
verified claim, answer, and Claimant’s bill of particulars. [ibid.
Exhibits A, B, C]. A note of issue and certificate of readiness has been filed
herein. [ibid. Exhibit D].
Vehicle and Traffic Law §1103(b) provides in pertinent part that the rules
of the road
and statutes governing motorists
“. . . shall not apply to persons, teams, motor vehicles , and other
equipment while actually engaged in work on a highway . . . The foregoing
provisions of this subdivision shall not relieve any person, or team or any
operator of a motor vehicle or other equipment while actually engaged in work on
a highway from the duty to proceed at all times during all phases of such work
with due regard for the safety of all persons nor shall the foregoing provisions
protect such persons or teams or such operators of motor vehicles or other
equipment from the consequences of their reckless disregard for the safety of
Ordinary negligence will not render a municipality or the State liable under
this statute, assuming the State’s agents were actually engaged in highway
work as defined therein and as interpreted in the case law. Thus when a county
employee was operating a street sweeper as part of maintenance work on a public
highway the county would be liable for injuries sustained by a motorist who
collided with the sweeper only if the employee was acting with reckless
disregard for the safety of others. Riley v County of Broome, 95 NY2d 455
(2000). The companion case to Riley v County of Broome, supra,
involved a collision with a snowplow. See Wilson v State of New
York, 95 NY2d 455 (2000). In both cases, while the operators’ acts
could likely have been viewed as ordinary negligence, they were found not to
have acted with reckless disregard for the safety of others. Recklessness
“. . . requires evidence 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’ and has
done so with conscious indifference to the outcome . . . (citation
omitted).” Saarinen v Kerr, 84 NY2d 494, 501 (1994).
The threshold issues to determine whether the statute applies are whether the
actor is actually engaged in highway work and, if so, whether such conduct is
done with reckless disregard for the safety of others. Thus, a town street
sweeper who crossed a double yellow line separating two directions of traffic
striking the plaintiff’s car, who was traveling from one work site to
another, was not actually engaged in highway work, and therefore ordinary
negligence principles applied. Davis v Incorporated Village of Babylon
13 AD3d 331 (2d Dept 2004); see also Marvin v Town of Middlesex
2002 WL 58928, affd
300 AD2d 1112 (4th Dept
Claimant argues that Riley
and its progeny involve the operation of the
work or hazard vehicle, not the safety or configuration of the work site itself.
Thus here, where what is alleged is that DOT workers negligently waved Claimant
on while outside their work vehicles - if the factual scenario is what the Court
has understood it to be - the reckless standard is inapplicable Claimant argues,
as what is really involved is the layout of a work site and the failure to
exercise due care in setting up the snow removal area. See Newell v
State of New York
, UID#2001-007-116, Claim No. 93670, Motion No. M-63436
(Bell, J., June 20, 2001)
. Counsel argues
that “. . . Claimant’s fundamental contention would be the same if
Defendant had created a non-vehicular obstruction at the Intersection, such as a
pile of snow or a stack of Jersey barriers (i.e., the fundamental nature of the
claim is that Defendant breached its duty to maintain the State’s roadways
in a reasonably safe condition, and therefore acted negligently, when its
employees failed to properly direct traffic around an obstruction, which they
created) . . .” [Affirmation in Opposition to Defendant State of New
York’s Motion for Summary Judgment by Michael G. Hayes, ¶13].
While this is certainly a beguiling attempt at setting aside the applicability
of the statute, it is clear that the statute was not intended to be construed so
narrowly. Although it appears that the majority of cases applying the statute
have involved the movement of the vehicles themselves, and have not mentioned
the “persons, teams” language therein, the words are still plain.
See Vehicle and Traffic Law §1103(b). If the “. . . persons,
teams, motor vehicles and other equipment . . .” are “actually
engaged in work on a highway . . .” at the time of the accident at issue,
the State will be liable only for reckless conduct. [See id.]. In those
cases where the statute has not been applied that have received appellate court
review, the employees were on their way somewhere else for example, or were
using vehicles for purposes other than highway work at the time of the alleged
misfeasance. See Davis v Incorporated Village of Babylon,
supra; Marvin v Town of Middlesex, supra.
Significantly, whether certain behavior can be categorized as
“reckless” poses a genuine issue of material fact precluding summary
determination, particularly where, as here, the mechanics of the accident -
including the location of the equipment and the personnel, and the actions of
State personnel at the site - are not established by the movant’s
presentation. See Bliss v State of New York, 95 NY2d 911 (2000);
New York State Electric & Gas Corp. v State of New York, 14 AD3d 675
(2d Dept 2005); Mendoza v Grace Industries, Inc., 4 AD3d 272 (1st Dept
Claimant testified at a deposition held on September 21, 2005, concerning her
view of the accident occurring on February 20, 2003. [Affirmation in Support of
Motion for Summary Judgment by Vincent M. Cascio, Exhibit F]. She indicated
that she had been driving for approximately one and one-half miles on northbound
Route 9A when she came to its intersection with Stormytown Road. There, she
intended to make a left turn across the southbound lanes of Route 9A to complete
the turn onto Stormytown Road, and to - ultimately - visit her husband in his
nursing home. It was a clear day - warm enough for the snow to be melting - and
she was traveling at a speed between 40 and 45 mph as she approached the
intersection. She estimated that there was snow piled on the side of the road
between one and one and one-half meters high. As she slowed to make the turn
from the left lane of northbound Route 9A, she saw workers clearing the snow.
She stated that she stopped, and was signaled to go ahead by the workers, and
also saw one of the workers mouth the word “go” but did not hear him
say the word. As she turned across the southbound traffic of Route 9A, her car
was struck by a truck driven by Paul Huntley.
Mr. Huntley indicated that he did not see Claimant’s car until she was
directly in front of him in the left lane of southbound Route 9A, at less than
100 feet. [ibid
. Exhibit H]
before seeing Claimant’s vehicle, Mr. Huntley saw a payloader stationed on
the median on the southbound side of Route 9A, with its bucket facing north.
There was a person in the back of the payloader, the operator of the payloader
was facing southbound traffic, and another individual was standing on the
southbound median strip with a flag rolled up. It was a “split
second” after observing the payloader that he saw the Claimant’s
car, attempting to “dart” across the road. Mr. Huntley applied his
brakes and turned hard to the right but was unable to avoid a collision.
Darren Heater, a highway maintenance supervisor for the DOT, was responsible,
along with his crew of three (3) workers, for the job of clearing snow from the
side of the highway on February 20, 2003. [Affirmation in Support of Motion for
Summary Judgment by Vincent M. Cascio, Exhibit I]. The three workers were Arnold
Folberth, who was operating the payloader, and Don Lounsbery and Dave Lock on
traffic control. Mr. Heater testified that workers were wearing orange safety
vests and helmets, and that there were no flagging stations set up that day at
the intersection. A pickup truck was parked in the shoulder on the
“northbound hashmarks between the left hand lane and the left turn
lane”, with rotating lights and flashers, to give people advance warning
of the work being performed. He indicated that he had decided not to use flagmen
because they were not working in the road itself. The truck was used to push the
snow off the median away from the intersection, and that other than this truck,
and the vehicle in which they arrived at the site, there were no State vehicles
there. He testified that he saw Claimant’s car turn into southbound Route
9A without ever stopping.
David Lock, assigned to snow removal for the past 10 years with the DOT, could
not recall the specific work he was performing on the day of the accident,
except to say that he reported to work that day in a State pickup truck, and was
wearing the assigned orange vest and hard hat. [Affirmation in Support of Motion
for Summary Judgment by Vincent M. Cascio, Exhibit G]. He recalled two other
workers at the site that day, Darren Heater and Donald Lounsbery, and that there
was a pickup and a loader at the site. He said he was in front of the pickup
truck when he first saw Claimant’s vehicle, in his peripheral vision, and
made “a hold back gesture” meaning she should slow or stop her car.
He did not see her car stop. Mr. Lock could not remember if he saw Mr.
Huntley’s truck “as it was about to impact or if it was
impacting,” although he “heard a skid.”
The deposition testimony alone is equivocal, referencing as it does photographs
and DOT documents not included with the motion papers, and does not establish
all the factual issues. Credibility and comparative fault are also at issue.
Based upon the showing here, while the Court agrees that the reckless standard
applies because DOT workers were actually engaged in work on a highway - here
snow removal - there are triable issues of fact surrounding that determination
that cannot be resolved on the papers alone.
Accordingly, Defendant’s motion for summary judgement dismissing the
claim is hereby denied.