New York State Court of Claims

New York State Court of Claims

TRIPPE v. THE STATE OF NEW YORK, #2006-031-501, Claim No. 106134


Snowplow operator was engaged in snow plowing operations at the time of the accident triggering, for liability purposes, the higher standard of reckless disregard found in Vehicle and Traffic Law § 1103(b). As Claimants were unable to demonstrate that snowplow operator acted with reckless disregard for the safety of others, the claims are dismissed

Case Information

In the Matter of the Claim of DOROTHY TRIPPE and ANTHONY TRIPPE
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:
Signature date:
March 15, 2006

Official citation:

Appellate results:

See also (multicaptioned case)
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 poor conditions.

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.[1]
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 snowplow.

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 snow[2]
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[3]
("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 Stork.
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 right.[4]
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 scene.
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 right.

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:
"Unless specifically made applicable, the provisions of this title, except the provisions of sections eleven hundred ninety-two through eleven hundred ninety-six of this chapter, shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway nor shall the provisions of subsection (a) of section twelve hundred two apply to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation. 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 others."
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 others (
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, N.Y. (13 AD3d 331) as support for this position.
Davis, 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). The Davis 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 #2004-015-415).
Dumoulin, 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 salt.[5]
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 Pilat, 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. [citation omitted]).
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 disregard (
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 Thruway Authority, 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, supra, 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.


March 15, 2006
Rochester, New York

Judge of the Court of Claims

[1]During the trial, Claimants' counsel conceded that, in their Bill of Particulars, Claimants had inadvertently indicated that DOT employee Robert Stork was operating the first plow which Claimants maintained entered their lane of travel and first struck the van. It was later determined that Mr. Stork was the driver of the second plow and that another DOT employee, Jeffrey VanRoo, was operating the first plow. Claimants therefore moved to amend their Bill of Particulars to correctly state this fact. As there has been no prejudice to Defendant and I have broad authority to amend Claimants' pleadings at any time to conform them to the evidence, that motion is hereby granted (see e.g. Murray v City of New York, 43 NY2d 400; Dougherty v Dougherty, 256 AD2d 714; Rothstein v City University of New York, 148 Misc 2d 911, affd 194 AD2d 533; CPLR 3025).

[2]Plowing included salting, as needed.
[3]At various points throughout the depositions in evidence and the trial, the Parkway has been referred to as the Hamlin Beach Parkway and the Ontario State Parkway. I understood them to be the same road.
[4]Mr. Van Roo testified that Mr. Stork also had a wing man in his plow (Exh. 19, p. 60).
[5]This result is consistent with other snowplow cases decided by this court. A snowplow in the process of making a u-turn to complete his beat, with plows up (Erie Insurance, supra; McDonald v State of New York, 176 Misc 2d 130, 141), or simply just driving through an intersection with plows raised (McLeod v State of New York, 8 Misc 3d 1009A) is entitled to the higher standard of reckless disregard.