The accident that gave rise to these two claims occurred on March 17, 2001 at
approximately 7:30 p.m. Claimants were riding in a 1993 Ford Aerostar van
("van") when it came upon two of Defendant's Department of Transportation
("DOT") snowplows. A bifurcated trial on the issue of liability was held on
August 2, 2005 and the parties thereafter submitted post-trial memoranda as well
as reprisal briefs. I find the facts to be as follows:
Claimant Dorothy Trippe was driving the van on Route 390 North in the far-left
lane, or passing lane. There are three lanes on 390 North at this point. She
testified it was a dark night and that the road condition was "not very good."
She described it as "slushy" and noted that it had not yet been plowed. Mrs.
Trippe stated she was going approximately 25 to 30 miles per hour due to the
Her passenger in the front seat, her aunt, Pierina Santillo, commented that she
saw plows. When Mrs. Trippe looked over to the right side of the car, she
noticed that there were two plows coming down the Ridgeway Avenue ramp onto
Route 390 North. She observed that the two plows were about parallel with her
van and appeared to be traveling at the same speed, one plow ahead of the other.
Mrs. Trippe kept driving in the far-left lane and Mrs. Santillo commented that
one plow appeared to be "coming over" and then commented "it's going to hit us."
Mrs. Trippe testified it was at that point that she felt an impact at the right
rear part of her van. The van then started spinning around and off to the right
side of the road. It was during the van's spinning to the right that the second
plow came into contact with the van.
Mrs. Trippe testified on cross-examination that she did not see the first plow
as she spun across the road but she was sure that she did not pass in front of
the first plow. The second plow eventually ended up pushing the van into the
right-hand guide rail. The plow and van came to rest facing each other, with
the van facing south.
Mrs. Santillo's testimony essentially corroborated Mrs. Trippe's. She added
that the roads were not only slushy, but a little slippery as well. She
observed the plows as they were driving down the Ridgeway Avenue ramp onto Route
390 North. She stated that the "plows were up" and that she "never took my eyes
off of them." She described the first plow as just "coming over" and that it
appeared it was going to hit the van where she was sitting, in the front
passenger seat. Mrs. Santillo said she felt and heard the impact in the back
end of the van and then recalled that the van spun out of control. She believes
they were hit more than once.
Anthony Trippe, Mrs. Trippe's husband, was seated behind her in the van. He
agreed with his wife's testimony and Mrs. Santillo's testimony regarding the
location of the plows as the plows proceeded down the Ridgeway Avenue ramp onto
Route 390 North. He testified that one of the plows was traveling across 390
North, from right to left, at a greater rate of speed than the van traveling in
the far-left lane. He also observed that the second plow stayed in the
far-right lane. He stated that the first plow, the one that was crossing over
to the left lane, was not "pushing snow."
Mr. Trippe next observed what he believes was the wing blade of the first plow
strike the side of the van. The van then "spun out" and he said he knew there
were several more impacts because he and the others were "bounced around." Mr.
Trippe actually observed being "tangled up" with the second plow. It was during
that time that the back window and passenger side windows were broken. The last
impact he felt was when the van came to rest against the guide rail. After the
accident, Mr. Trippe walked around the van to observe the damage. He testified
that the dent to the right rear side of the van was caused by the first
The fourth passenger in the van, Albert Santillo, is deceased and the parties
stipulated to the admission of his deposition transcript. Mr. Santillo was
seated in the right side rear passenger seat and was able to observe the first
plow. He testified at his deposition that the first time he saw the plow, it
was in the middle lane and in the process of moving into the left lane where the
van was traveling. Mr. Santillo stated when he turned to the right to look out
the window, all he saw was the front end of the plow; that the plow was "a
little behind us."
He stated that after turning to look at the plow, he turned back to the front
and that was when he felt an impact. He described his physical reaction to the
impact. Mr. Santillo said his head snapped back and forward so hard that his
forehead hit the headrest of the seat in front of him, causing his glasses to
fall off his face. He testified that the van was hit more than once.
Neither plow driver was available to testify at trial. However, the Court
accepted into evidence both drivers' deposition transcripts which I have read
and have found the following facts:
Jeffrey VanRoo was employed by DOT as "head tree puller" from November 2000 to
July 2002. In addition to his duties related to tree removal, he also plowed
from November to April each year. He trained by riding in a plow, "running a
wing," and driving while supervised. In January 2001, DOT determined that Mr.
VanRoo was ready to operate a plow without supervision.
On the date of the accident, Mr. VanRoo worked noon to midnight out of the
Braddock's Bay DOT shop ("shop"). He was assigned a six-wheel dumptruck with a
salter, right and left wing plows and a front plow. He had another DOT employee
with him that day, Shawn Gillard, who sat in the passenger seat and operated the
right wing plow. From noon to 4:00 p.m. on March 17, 2001, he and Mr. Gillard
plowed parts of Route 390 and the Hamlin Beach
("Parkway"). When it began to get dark outside, he received a radio call from
his supervisor asking him to leave the Parkway and assist another plow on Route
390. The other plow operator already on Route 390 was Robert
Mr. Stork had entered Route 390 South from the Parkway and plowed the driving
lane, driving ahead of Mr. VanRoo. Mr. VanRoo followed him and took the passing
lane, staying between 20 and 30 feet behind. Mr. VanRoo described the
conditions as snowing hard and with heavy slush already on the road. He
testified that neither truck exceeded 35 miles per hour as they plowed and
salted. They plowed Route 390 South up to the Ridgeway Avenue exit ramp.
When the plows reached the exit ramp, Mr. Stork left the main road first,
followed by Mr. VanRoo. They continued plowing up the ramp. To enter Route 390
North, the plows had to travel on Ridgeway Avenue to access the Route 390 North
ramp. Prior to entering Ridgeway Avenue, Mr. VanRoo testified he did two
things; he called Mr. Stork on the radio to tell him he would plow the passing
lane and he discontinued plowing because Ridgeway Avenue was a road maintained
by the town. However, Mr. VanRoo maintains that both plows had their "lights,
360s and strobe lights" engaged.
When the plows entered the Route 390 North ramp, Mr. Stork was still ahead of
Mr. VanRoo and, according to Mr. VanRoo's deposition, Mr. Stork was plowing the
access ramp. Mr. VanRoo kept his plows in the up position because he intended
to merge into traffic and move to the far-left (passing) lane closest to the
grass median. Mr. VanRoo estimated his own speed at 30 mph when he merged into
the first lane on Route 390 North then immediately moved to the next lane
(middle lane) because there was a break in traffic. He still needed to move
over one more lane, but observed "four sets of headlights" in his mirror. He
waited until he saw four sets of taillights in front of him, checked his mirror
again and, noting no traffic, he proceeded to move to the far-left passing lane.
He states he had his left-hand turn signal on the whole time. He still had his
front plow and both wings up.
The far-left passing lane was snow-covered, the Claimants' van was keeping up
with traffic, which was moving at a greater speed than the plow, according to
Mr. VanRoo. The fourth set of taillights in the far-left passing lane was
Claimants' van. At this point, he still had his plow and wings up, but the
front plow had already been turned to the left in preparation for plowing the
far-left passing lane. The effect was that the front plow was now the same
width as the truck, compared to sticking out three to four inches on each side
when the plow is facing straight. He noticed, just before moving over, that the
van, which was 40 to 50 feet in front of him, put on the brake lights, then
started "to lose control in front of me" (he observed the "nose" of the van and
the brake lights engage, almost simultaneously). Mr. VanRoo responded by
slamming on his brakes and moving to the far-left passing lane and over to the
shoulder of the road to avoid the van.
At this point, he saw the van spin out to the right and he saw it hit Mr.
Stork's truck. He testified that he pulled over on the far-left side of the
bridge over Ridge Road, at the north end, after the van hit the other plow. He
and Mr. Gillard left their plow and went to see if Mr. Stork was all
Mr. VanRoo left when Mr. Stork assured him that he was fine. Mr. VanRoo
proceeded north on Route 390 and plowed the passing lane. He ended up on the
Parkway and headed back to the shop to get more salt when he received a call
asking him to turn around and go back to the accident
As mentioned earlier, Shawn Gillard was Mr. VanRoo's wing man at the time of
the accident. DOT paperwork shows that Mr. Gillard was assigned to "Job 6" as
was Mr. VanRoo on March 17, 2001 and they both worked from 11:00 a.m. until
12:00 a.m. During the shift, Mr. VanRoo and Mr. Gillard switched positions as
driver and wing man (Exh. H). Mr. Gillard's recollection of the events of March
17, 2001 differ from Mr. VanRoo's recollection.
On direct examination, Mr. Gillard stated he did not recall a radio call
between Mr. VanRoo and Mr. Stork to establish who would be the lead plow during
the turn off of Route 390 South and the travel to the Route 390 North access
ramp. Nor did he recall whether or not Mr. VanRoo passed Mr. Stork on the ramp.
But he does specifically recall that Mr. VanRoo actually did move over to the
middle lane on Route 390 North. According to his testimony, at this point
nothing seemed out of place to him.
Mr. Gillard commenced work with DOT in August 2000 and first came to operate a
plow in November 2000, alternating between being the plow driver and the wing
man. He testified that tandem plowing was where two or three trucks would work
together, each plowing a different lane. Which truck took the front would
depend which way the snow was pushed. If the snow was pushed to the right side
of the road, the truck in the farthest left-hand lane would be the first plow.
If the snow was pushed to the left side of the road, the truck in the farthest
right-hand lane would be the first plow. Also, according to procedure they
would start tandem plowing in the center and right (driving) lanes because those
were the lanes where traffic enters from the feeder roads and the ramps.
So, Mr. Gillard was not surprised that Mr. VanRoo did not plow the Route 390
North access ramp because, if the lead truck had already plowed ahead of them in
the same lane, they would only be plowing the lead truck's salt off the road.
He also was not surprised that Mr. VanRoo moved into the middle lane on Route
390 North because if they were going to tandem plow with Mr. Stork, Mr. Stork's
plow would come off the ramp and take the right lane.
On direct examination, Mr. Gillard also testified about his observations of the
accident. He stated he observed the van spinning and sliding in front of them
from the left. He also testified that he saw the van hit Mr. Stork's plow.
After the accident, he urged Mr. VanRoo to stop, but Mr. VanRoo continued
northbound on Route 390 to the Parkway and eventually to the shop where he
obtained another load of salt. It was at this time, according to Mr. Gillard,
that they learned that Claimants were alleging that Mr. VanRoo hit the van
causing it to go out of control.
On cross-examination, Mr. Gillard testified that, at the point of impact, he
was able to observe Mr. Stork's plow to his right. At first, when the van spun
out of control, he placed Mr. Stork's left wing plow edge to his right and at
the back of his passenger side door. After he saw the van hit Mr. Stork's plow,
he observed that Mr. Stork's left wing was at the back right corner of Mr.
VanRoo's plow. The two plows were only two to three feet apart. Following the
accident, he called Mr. Stork over the radio to make sure he was all
Mr. Stork retired from DOT in 2002 after a 35-year career. His
responsibilities were primarily road maintenance but he also operated cranes,
mechanical shovels and snowplows. On the date of the accident, he happened to
be driving a six-wheel dumptruck with a salter, two wing plows and a front plow
out of the Braddock's Bay shop. His shift was from noon until 8:30 p.m. but, on
that day, he was logged in from 11:00 a.m. to midnight (Exh. H).
Mr. Stork corroborated Mr. VanRoo's testimony regarding the lights on the plow,
that is with regard to the headlights, taillights, strobes and 360s. He also
described, in greater detail, the responsibilities of the wing man. The wing
man operates the right wing plow. The driver operates the left wing plow, the
front plow and the salter. The wing plow's function is to push the snow moved
by the front plow out at a wider angle; if the snow was being pushed to the
right then only the right wing plow would be down. Conversely, if the snow was
being pushed to the left, then the left wing plow would be down.
Mr. Stork stated he was at the shop at approximately 7:00 p.m. or a little
after on March 17, 2001 where he drank a cup of coffee and loaded up the salter
hopper. He testified that he discussed with Mr. VanRoo, who was also present,
which lanes they would each plow on Route 390. Then later, in the deposition,
he testified that he actually talked to Mr. VanRoo on the radio and discussed
which lanes they would plow. Mr. Stork would take the middle and Mr. VanRoo
would take the right lane. Mr. Stork drove straight out the Parkway traveling
east to Route 390 South, plowed and salted Route 390 South to Ridgeway Avenue
and intended to proceed northbound on Route 390 at Ridgeway Avenue. Mr. Stork
testified that, when he approached Ridgeway Avenue, he pulled his plows up (he
had his front plow turned to the right and his right wing down on the Parkway
and on Route 390 South), to avoid pushing snow into the intersection. He stated
that his front plow would have been about a foot off the ground while each wing
plow would have been five to six feet off the ground. Mr. Stork testified that
he put his front plow and his right wing down as he made the turn from Ridgeway
Avenue to the Route 390 North ramp, plowing and salting as he proceeded. Mr.
VanRoo was still behind him.
Mr. Stork appeared to possess little independent recollection regarding the
particulars of the accident. However, based on his deposition testimony I am
able to conclude the following: 1) Mr. Stork knew he hit the van; 2) the van
was "sliding" toward his plow from the left; 3) Mr. VanRoo was ahead of him;
and 4) eventually, the van spun around and faced his plow. A signed statement
by Mr. Stork dated March 17, 2001 described the contact as "the van struck the
front plow and was wedged between the front plow and right wing until we came to
a stop" (Exh. 8).
Mr. Stork did recall that, after the accident, he called Mr. VanRoo on the
radio to tell him about what happened and to come back to the scene. Mr. Stork
stated Mr. VanRoo did come back and when he did he "pulled in behind the
accident." By that time, the police were already on the scene. Mr. Stork
opined that Mr. VanRoo's plow was inspected by the State police.
One of the officers on the scene was State Trooper Jacob P. Brinson who had
training in the area of investigating motor vehicle accidents as well as
accident reconstruction. Trooper Brinson completed an MV-104A Form (Exh. 9)
indicating points of impact on the van. He described what he saw when he
arrived at the scene; a plow and van were "kind of joined together," the plow
was facing north on Route 390 and the van was facing east. He described the
weather as bad, the roads were slushy. He testified he observed the damage to
the van and concluded that the damage to the right rear panel of the van was
consistent with the information he received from the Claimants - that they were
hit by Mr. VanRoo's plow, which sent them sliding into Mr. Stork's plow. On
cross-examination, however, Trooper Brinson stated he found no evidence of an
impact on Mr. VanRoo's plow. Trooper Brinson did not take photographs of the
scene as part of his investigation.
Claimants called Jeffrey Resnick, a private investigator, who had taken
pictures and a video of the area of the accident after the fact. Mr. Resnick
also took measurements of miles and time traveled between various points on
Route 390 North. These pictures and measurements were taken in July 2004.
Pictures of the scene of the accident as well as pictures of the damaged van
are in evidence. Pictures of the plows, however, are not. Mr. Gillard did
describe various parts of the plow during his testimony. The front plow is 11
feet wide and can be raised as far as 2 feet off the ground. The front plow has
a concave shape; the top of the front plow curves about 2 feet over and past the
bottom part of the front plow. The truck itself is 10.5 feet wide so the front
plow sticks out a few inches on each side. The wing plows sit on the truck at
approximately 45 degree angles when down on the road plowing. The front of the
wing adds approximately 12 inches to each side of the truck.
Claimants' investigator, Mr. Resnick, provided visual information and physical
measurements of the accident site. Exhibit 1 is an enlarged aerial photograph
of the intersection of Ridgeway Avenue and Route 390 and its immediate environs.
I found it helpful to trace the route of the plows as they exited Route 390
South and entered Route 390 North. Claimants posit that Mr. VanRoo's plow
traveled a total of six-tenths of a mile without engaging a plow or salting the
road. Mr. Resnick provided the measurements in his trial testimony.
Vehicle and Traffic Law § 1103(b) states:
Snowplows engaged in snow removal operations are hazard vehicles under the
terms of Section 1103(b), thus exempt from the normal rules of the road and
liable only for conduct that constitutes reckless disregard for the safety of
Erie Insurance Company a/s/o Schoen Place Auto, Inc. v State of New York
Ct Cl, August 30, 2004 [Claim No. 107974, Motion No. M-68681], Minarik, J., UID
#2004-031-103, citing Riley v County of Broome
, 95 NY2d 455). Claimants
posit that, although Mr. VanRoo was operating a hazard vehicle, i.e. snowplow,
he was not actually engaged in work on a highway so the ordinary negligence
standard applies. Claimants rely on Davis v Incorporated Vil. of Babylon,
(13 AD3d 331) as support for this position.
, the Second Department affirmed an order of the Supreme Court
granting partial summary judgment to plaintiffs, determining that defendants did
not qualify for the higher standard of reckless disregard under Section 1103(b).
case involved a street sweeper that crossed the double yellow
line and struck plaintiff's vehicle. Because the street sweeper was "merely
traveling from one work site to another," the court found it was not actually
engaged in work on the highway (id.
at p. 332). Claimants cite the
plaintiffs' appellate brief and state the distance between work sites was
approximately one-quarter mile (Plaintiffs' [sic] [Claimants'] Post-Trial
Memorandum, p. 9).
The case at bar is similar in that Mr. VanRoo was not plowing snow or salting
the road at the time of impact; just as the street sweeper was not sweeping the
street. However, that is where any similarity between the two cases ends. Mr.
VanRoo was not traveling between work sites - he was on his work site and
getting in place to tandem plow with Mr. Stork. The evidence shows that Mr.
VanRoo traveled six-tenths of a mile without plowing or salting and that he
traveled an additional 10 miles or so after the accident to the shop to acquire
more salt. All Mr. VanRoo's "travel" occurred on Route 390, his assigned beat.
The case at bar appears to be more akin to
Dumoulin v State of New York
(Ct Cl, August 9, 2004 [Claim No. 107300,
Motion Nos. M-68375 and CM-68516], Collins, J., UID
, the hazard vehicle in question was a snowplow and the operator
had assigned duties and hours of work that were not in dispute. The location of
the accident site was within the parameters of his assigned plowing beat. The
fact that the plow operator was traveling between rest areas on the highway when
the accident occurred was of little consequence to Judge Collins. "Under the
circumstances reflected in this record it is clear that [the operator] was
actually engaged in his assigned task of patrolling his beat at the time the
accident occurred. It matters not whether he was actually plowing or dispensing
salt at the precise moment of impact" (id.).
Here, Mr. VanRoo was assigned a specific portion of Route 390 with Mr. Stork.
Mr. VanRoo was in the process of covering his beat when the accident occurred,
even though his plows were up and he was not dispensing salt and he may have
been on his way to the shop for more
Accordingly, I find that the "reckless disregard" standard set forth in Vehicle
and Traffic Law § 1103(b) applies in this instance. The Court of Appeals
has defined "reckless disregard" 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 (citations omitted)" (Szczerbiak v
, 90 NY2d 553, 557). In Szczerbiak
, the Court of Appeals
affirmed the trial judge's determination that a police officer's accelerating
down a road responding to a report of five males engaged in a melee without
activating his emergency lights and siren was reasonable and that it was only
when he looked down to activate the lights and siren that the collision in
question occurred; this "‘momentary judgment lapse' does not alone rise to
the level of recklessness required of the driver of an emergency vehicle in
order for liability to attach" (id.
Other cases address the higher standard as well. For example, a police chase
on a wet road with a high probability of vehicular traffic in the area where the
officer exceeded the posted speed limit did not rise to the level of reckless
Saarinen v Kerr
, 84 NY2d 494, 503). Even a snowplow operator that
misjudged the distance between his wing plow and a parked vehicle cannot be said
to have committed anything more than negligence (Swiercz v New York State
, Ct Cl, July 21, 2000 [Claim No. 97301], Collins, J., UID
#2000-015-515). Finally, a plow operator that failed to observe a claimant's
vehicle prior to changing lanes, either because claimant was in the plow
operator's blind spot or because the plow operator was inattentive, cannot be
said to have acted with reckless disregard. The plow operator made no conscious
decision "to ignore a grave risk, which is likely to result in harm to others
(citations omitted)" (McDonald v State of New York
, 176 Misc 2d 130,
, at 143).
I find Mr. VanRoo's conduct to be negligence at best; he made a conscious
decision to move to another lane after he saw four sets of taillights pass his
plow. He may have failed to observe Claimants' vehicle due to his
inattentiveness or because Claimants were in a blind spot but, either way, his
conduct does not rise to the level of reckless disregard.
Nor can I characterize Mr. Stork's conduct as reckless disregard for a known or
obvious risk. According to the evidence at trial, Claimants' van was suddenly
propelled into Mr. Stork's path - he had no time to engage in a conscious
thought about a grave risk. He could not avoid hitting the van.
Accordingly, claim numbers 106134 and 106133 are dismissed in their entirety
and Defendant's counterclaim is dismissed as moot.
LET JUDGMENTS BE ENTERED ACCORDINGLY.