New York State Court of Claims

New York State Court of Claims
FLACK v. THE STATE OF NEW YORK, # 2007-015-563, Claim No. 110304

Synopsis

Following trial, the Court determined that a police vehicle traveling at 80 m.p.h. on a rural road in daylight was engaged in an emergency operation thereby entitling its operation to a qualified privilege to disregard the rules of the road pursuant to VTL 1104. Although the privilege does not immunize such a defendant from the consequences of reckless conduct, the Court found the police officers conduct, while negligent, was not reckless.

Case information

UID: 2007-015-563
Claimant(s): WENDY FLACK and TODD FLACK
Claimant short name: FLACK
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110304
Motion number(s):
Cross-motion number(s):
Judge: Francis T. Collins
Claimant's attorney: Conway & Kirby, LLP
By: Thomas A. Conway, Esquire
and Kimberly Boucher Furnish, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 4, 2007
City: Saratoga Springs
Comments:
Official citation:
Appellate results: Reversed, 57 AD3d 1199 [2008]
See also (multicaptioned case)

Decision

The claim alleges that on August 13, 2004 the claimant, Wendy Flack, (hereinafter "claimant") sustained serious physical injuries when the vehicle in which she was a passenger collided with a State Police vehicle on Routes 9N and 22 south of the Village of Crown Point, New York. Trial was bifurcated by Order of the Court dated November 17, 2006 and the decision herein addresses solely the issue of liability.

The claimant first presented the videotaped testimony of Ms. Jennifer Wellons (Exhibits 1, 2) who, on the date of the accident, resided at a seasonal cottage approximately 6 miles north of the Village of Crown Point, New York. Ms. Wellons testified that on the morning of August 13, 2004 she and her fiancé Gary Finch left their camp at approximately 8:30 a.m. intending to travel to a Wal-Mart store located in the Village of Ticonderoga, New York. Upon leaving their residence Ms. Wellons and Mr. Finch entered Routes 9N and 22 approximately two miles north of the Village of Crown Point and proceeded south. She described the weather during this time period as overcast and raining. The rain became heavier as they proceeded through the Village of Ticonderoga and traveled south of the Village on Routes 9N and 22.

The witness estimated that she and Mr. Finch traveled approximately two miles south of the Village of Ticonderoga at approximately 35 - 40 m.p.h. She testified that it was raining heavily at the time, the roadway was wet and that Mr. Finch was operating his Chevrolet pickup truck with both his wipers and headlights on. According to Ms. Wellons the posted speed limit in the section of Routes 9N and 22 south of Ticonderoga is 55 m.p.h. As she and Mr. Finch proceeded south on Routes 9N and 22 their vehicle was approximately 4 car lengths behind the car in front of them when the witness observed a State trooper vehicle in the northbound lane of traffic come "up over a slight rise into the - - around a slight bend" in a manner which she described as "out of control". She estimated that the vehicle in front of her and Mr. Finch was proceeding at approximately 30 - 35 m.p.h.

According to Ms. Wellons the State Police vehicle was fishtailing back and forth until it impacted the car in front of the Finch vehicle in the southbound lane of traffic on Routes 9N and 22. The witness did not recall seeing any other northbound vehicular traffic on Routes 9N and 22 during the two miles of travel between the Village of Crown Point and the accident site. Following the impact between the State Police vehicle and the vehicle operating in front of them, Mr. Finch directed his vehicle onto a service road and both he and Ms. Wellons exited the vehicle. Mr. Finch first ran to the State Police vehicle and then to the vehicle which had been preceding them on Routes 9N and 22 to render assistance. Although Ms. Wellons was unable to estimate the precise speed of the trooper vehicle prior to impact she stated that it was going "very fast".

On cross-examination the witness testified that the first time she observed the State Police vehicle proceeding northbound it was attempting to negotiate a slight rise and bend in the roadway. She testified that the trooper's headlights were on. Immediately prior to observing the State Police vehicle Ms. Wellons testified that she was looking at a field located on the right side of her vehicle as she proceeded south on Routes 9N and 22 although she also testified that she was paying attention to traffic on the road in the moments prior to the accident. According to Ms. Wellons, despite her testimony on direct examination that she did not recall any traffic northbound on Routes 9N and 22 prior to the accident it was her practice to watch the road at all times when driving with Mr. Finch. She then clarified her direct testimony by stating that she did not see any traffic proceeding northbound on Routes 9N and 22 prior to the accident.

On redirect examination the witness testified that the headlights of the State trooper vehicle were on but its emergency lights were not at the time she observed it immediately prior to the accident.

Claimant next presented the videotaped testimony of Mr. Gary Finch who testified that on the morning of August 13, 2004 he and Ms. Wellons were operating his 2003 Chevrolet Silverado pickup truck southbound on Routes 9N and 22. The couple drove through the Village of Crown Point and continued driving south on Routes 9N and 22 following the same vehicle for a "couple of miles" prior to the accident at an estimated speed of 40 - 45 m.p.h..

He and Ms. Wellons continued to follow the vehicle in front of them as it proceeded south on Routes 9N and 22 which at the area of the accident consisted of one northbound and one southbound lane separated by a double yellow line. Mr. Finch stated he first observed the State Police vehicle as it came "over a little bit of rise". The trooper vehicle was within the northbound lane of traffic and Mr. Finch observed the operator fighting to control the vehicle. The trooper car fishtailed several times and impacted the front portion of the claimant's vehicle in the southbound lane on Routes 9N and 22.

The witness testified that he could not recall whether he observed northbound traffic on Routes 9N and 22 in the area between the Village of Crown Point and the site of the accident, a distance he estimated at approximately four miles. When asked whether he observed any speeding vehicles proceeding in a northbound direction prior to the accident the witness responded "not that I know if, no, nothing that like shocked me". The State trooper vehicle had its headlights on but was not operating either its emergency lights or siren. Following the accident Mr. Finch and Jennifer Wellons provided statements to the State Police.

The next witness called was Colleen Flack, the claimant's sister-in-law. Ms. Flack testified that on the morning of August 13, 2004 she left her house in Moriah, New York, and drove approximately 2 miles to the claimant's residence. Both she and the claimant worked as housekeepers for Lake George Property Management Corporation. The witness testified that she arrived at claimant's home at approximately 8:20 a.m. with the intention of arriving at their employment in Hague, New York, by 9:00 a.m. She stated that it was raining hard during the two mile trip from her house to the claimant's as well as upon her arrival.

Ms. Flack and the claimant left the claimant's home at approximately 8:30 a.m. and traveled 10 miles to the junction of Routes 9N and 22 during which time, according to the witness, it was also raining hard. Turning south on Routes 9N and 22 they drove through the Village of Crown Point. Ms. Flack testified that she operated her vehicle south of the Village of Crown Point at approximately 35-40 m.p.h. due to the hard rain and wet roads. During this period she did not observe any vehicular traffic proceeding north on Routes 9N and 22. With regard to the happening of the accident the witness testified "I remember seeing the police car fishtailing and he was coming at me really fast, and there was nothing I could do. That's all I remember". The witness did, however, recall that neither the State trooper vehicle's emergency lights nor its headlights were on. The vehicles impacted entirely within the southbound lane of traffic. Ms. Flack estimated the time between first observing the State Police vehicle and impact as "like two seconds."

On cross-examination Ms. Flack confirmed that she had testified at her examination before trial that although it was raining that day "it wasn't hard rain, it was enough to keep the wipers going". In this regard the witness testified at trial "yes, I just know it was raining". She also confirmed that she testified at her examination before trial that she could not recall whether she was using her vehicle's regular or intermittent wipers that morning.

New York State Trooper Michael Kijowski was called to the stand by the claimant. Trooper Kijowski testified that he was appointed to the New York State Police Academy in April 2003. While at the academy the witness received training regarding high-speed vehicle operation and equipment safety, including tires, tire pressure and tire tread as part of the Emergency Vehicle Operator's Course (EVOC).

Upon graduation Trooper Kijowski was assigned to the State Police Barracks in Marcy, New York, from September 2003 to January 2004. In January he was transferred to the barracks in Schroon Lake, New York, where he remained stationed throughout the period up to and including the date of the accident.

Trooper Kijowski testified that he arrived at the Schroon Lake State Police Barracks at approximately 7:00 a.m. on the morning of August 13, 2004. He recalled that it was raining during the approximately 10 minute drive from his home to the Schroon Lake Barracks. Upon his arrival he performed his usual routine activities including a visual inspection of his assigned troop car, which is required to be performed each morning prior to beginning his shift. On the date of the accident Trooper Kijowski was assigned Unit 3B44, a Ford Crown Victoria. Trooper Kijowski shared his assigned vehicle with Trooper Laberon who also operated the vehicle. He denied that Trooper Laberon told him he was having difficulty with the vehicle prior to the beginning of Trooper Kijowski's shift, although he was aware that the tires on the unit would need to be replaced at some point in the future. The vehicle had been serviced shortly (1,000 miles) prior to the date of the accident. According to the witness a tire pressure gauge is maintained at the State Police Barracks and each State Police vehicle is equipped with a gauge to measure tire tread depth. On the morning of August 13, 2004 Trooper Kijowski used neither appliance. The witness stated that he visually inspected the tires and although they were worn he determined that there was "ample tread". He estimated that his visual inspection of the vehicle lasted approximately 15 - 20 seconds.

Upon beginning his patrol Trooper Kijowski left the Schroon Lake Barracks and drove approximately 23 miles to the State Police Barracks located in Crown Point, New York. According to the trooper it was raining during the 35 - 40 minute trip between the Schroon Lake and Crown Point Barracks. Trooper Kijowski left the Crown Point State Police Barracks located at the southern end of the Village, ultimately proceeding southbound on Routes 9N and 22 intending to meet Forest Ranger Mark St. Clair at the Ticonderoga Police Department to secure his assistance in locating a firearm which had been lost in a nearby river. The witness related that he observed moderate traffic in both the northbound and southbound lanes of Routes 9N and 22 as he drove the approximately 4 miles between the Village of Crown Point and Shore Airport Road which is located south of the accident scene. It was raining during this period and the witness related that his windshield wipers and headlights were on. As he approached Shore Airport Road Trooper Kijowski observed two vehicles in the northbound lane of Routes 9N and 22 traveling at a high rate of speed. The first vehicle was a black car which the trooper estimated was proceeding at approximately 70 m.p.h. His radar confirmed that the vehicle was proceeding at 67 m.p.h. That vehicle was followed by a white Dodge Intrepid which the trooper visually estimated to be traveling at 75 m.p.h. and which the radar confirmed was proceeding at 73 m.p.h. While the witness had determined not to pursue the black car, which his radar indicated was proceeding at 67 m.p.h., he decided that he would attempt to stop the white Dodge Intrepid. The trooper slowed his vehicle and executed a U-turn approximately 300 feet north of the intersection of Shore Airport Road and Routes 9N and 22. He then accelerated in the northbound lane of traffic to a speed of approximately 85 m.p.h. He did not employ his emergency lights although he was aware of potential vehicle traffic entering Routes 9N and 22 from residences, businesses and intersecting streets. Trooper Kijowski testified that although he has operated his vehicle at up to 85 m.p.h. while patrolling the Adirondack Northway he had not previously operated his patrol car at such a rate of speed on Routes 9N and 22.

While proceeding north on Routes 9N and 22 from the point where he executed the U-turn, the trooper described the highway as straight with good visibility although the shoulders, which were approximately 8 feet wide at the point where the U-turn was made, became more narrow as he proceeded north. He described the roadway as he approached the accident site proceeding north on Routes 9N and 22 in the following manner:

The road actually kind of does an S-turn, to describe it properly. Coming in, assuming you're going due north, it will kind of turn off towards the north, northwest, it will straighten out, and then it will turn at the top of a knoll. And then it goes over another knoll and then goes back to the north again.

As related in his testimony, Trooper Kijowski slowed his vehicle to 80 m.p.h. as he entered the first knoll as described above. After cresting the knoll his vehicle began to fishtail when a loss of traction caused the rear of his vehicle to slide right and then left, repeating this process two or three times. As the rear end came back to the right the vehicle began to spin in a counterclockwise direction. During this period Trooper Kijowski stated that it was his intention to "let off the gas, not to brake and to try and steer it out". He testified to his belief that he did not apply the vehicle's brakes as he began to fishtail. He agreed, however, that he testified during his examination before trial that he applied his brakes slightly during the period that the vehicle was fishtailing in an effort to regain control. He further agreed that he had been instructed during the EVOC course at the State Police Academy not to apply the brakes when a vehicle is fishtailing. The right rear of the trooper car impacted the driver's side front of claimant's vehicle in the southbound lane of traffic. The witness identified various photographic exhibits (Exhibits 12 - 21) which were received in evidence.

Trooper Kijowski confirmed that he did not operate his emergency lights after completing the U-turn and proceeding northbound on Routes 9N and 22 in pursuit of the speeding northbound vehicle. In this regard the witness testified:

The reason I didn't activate the emergency lights at that point in time was because of - - there's a very, very narrow shoulder on that roadway, which I'd estimate to be about 18 inches wide in the location where the accident occurred, and I knew that I wouldn't be able to catch up to that vehicle within the - - up until that first knoll, and I didn't want to initiate a traffic stop within that area where the shoulder is narrow because my concern was that it would be more of a hazard to traffic than my traveling northbound with emergency lights or sirens activated . . . . I was trying to control the traffic stop by effecting where I'd activate those lights. . . .

The witness stated that the shoulders at the point where he initiated his U-turn to proceed northbound on Routes 9N and 22 was approximately 8 feet in width. He stated that he did not activate his lights at that point because he had not yet obtained a confirmed radar speed reading. As a result he hesitated in activating the emergency lights and at that point became concerned that activating the emergency lights would cause the subject vehicle to stop on the knoll referenced in his earlier testimony where it could possibly block northbound traffic and create a road hazard. The witness confirmed that he did not activate his siren during the time he was pursuing the northbound vehicle.

On cross-examination Trooper Kijowski testified that he and other State Police Academy students were instructed regarding the manner in which a troop vehicle should be inspected prior to use. As part of the EVOC course students were instructed to focus primarily upon the vehicle's tires. He went on to state "[t]hat was the main component of my walk around and inspection, aside from body damage or any other lights I saw burned out". Instruction at the State Police Academy included use of the tire tread gauge as well as demonstrations regarding the handling of a vehicle with inadequate tires on wet roads using a skid pad. In addition, the trooper also received training regarding visual estimate of vehicle speeds while at the academy.

With regard to the decision not to activate his emergency lights at the time he first became aware of the white northbound vehicle's high rate of speed the witness related:

At the time that I observed the vehicle, I had to pull over and perform a U-turn. At that point in time, it was - - I wanted to try to control the vehicle stop a little bit better, and I wanted to pull the vehicle over at that location at Crown Point where the old ice cream stand is. In doing that, I was going to have to patrol up to that vehicle and then activate my emergency lights.

The witness testified that two fatal accidents had occurred on Routes 9N and 22 near the site of the subject accident within the preceding year. He stated that in light of those prior accidents "I decided that I wanted to pull it over north of that location knowing that it was a safer area, that it was a reduced speed limit in that area, and there was a safe shoulder. . .".

The witness testified that on the morning of August 13, 2004 he had arranged to meet Ranger Mark St. Clair at the Ticonderoga Police Department at 9:00 a.m. He testified that he did not experience problems in controlling his vehicle that morning prior to the accident.

On redirect examination Trooper Kijowski confirmed that his superiors ultimately determined the accident involving the Flack vehicle was preventable. The trooper recognized that pursuit of the speeding northbound vehicle might pose a risk to the public but he also viewed the operator of the white northbound vehicle as "a risk going into the area where there were two fatal accidents within the past couple of months".

The claimant called Wendy Flack to the stand who testified to substantially the same facts as those testified to earlier by her sister-in-law Colleen Flack. She estimated that she and her sister-in-law drove approximately 3 miles on Routes 9N and 22 upon leaving the Village of Crown Point. During those three miles she did not see any vehicular traffic proceeding north at greater than the posted 55 m.p.h. speed limit. In fact, Ms. Flack testified that she did not observe any northbound traffic that morning.

In describing the happening of the accident Ms. Flack testified that it was raining at the time and that she suddenly saw a fast-moving vehicle "coming fishtailing at us". She estimated the period between her first observation of the vehicle and the time of impact as "no more than one to two seconds". The northbound vehicle's emergency lights and siren were not operating and the witness could not recall whether its headlights were on.

Although she had testified on her direct examination that it was raining "pretty hard" at the time of the accident she recalled the testimony at her examination before trial in which she was asked whether it was a hard rain, a regular rain or a soft rain to which she responded "to tell you the truth, I don't remember". When asked whether she saw something white in the moments before the accident as she had testified at her examination before trial she responded that she did recollect that statement but that the white object could have been "the glare of the water, the rain hitting the windshield, it could have been the air bag coming at me. I don't know what that white was". When queried regarding her statement that she had observed no northbound traffic while traveling between the Village of Crown Point and the accident site she responded "well, I wasn't looking but I mean, it was obvious when we were the only ones on the road until we see the cop".

The claimant called New York State Trooper Thomas Sharron to the stand. Trooper Sharron testified that he entered the New York State Police Academy on April 7, 2003, the same class attended by Trooper Michael Kijowski. Trooper Sharron completed his course of study at the New York State Police Academy, including the Emergency Vehicle Operation Course, and upon graduation was assigned to the New York State Police Clifton Park Barracks for three to five months of on-the-job training. Upon the completion of this training both Trooper Sharron and Trooper Kijowski were stationed at the State Police Barracks in Schroon Lake, New York. His duties there included area patrol, enforcement of the vehicle and traffic and penal laws as well as other administrative duties. On the morning of August 13, 2004 Trooper Sharron was notified by radio transmission that Unit 3B44 had been involved in a collision. Trooper Sharron responded to the scene traveling the approximately 25 miles between his location at the time he was advised of the incident and the accident site. When he arrived at the scene he parked his vehicle and walked to the site of the accident where he observed ambulances, Department of Transportation trucks and a Ticonderoga Police Department vehicle. New York State Trooper Nate Yaw was also at the scene. The witness proceeded to one of the ambulances on the scene where he saw Trooper Kijowski. He did not recall speaking to Trooper Kijowski prior to the time that the ambulance containing the trooper left the scene.

Once both ambulances had exited the site Trooper Sharron secured the scene, which he described as ensuring that no vehicles or unauthorized individuals contaminated or otherwise affected the scene prior to the arrival of a supervisor and investigation team. He did not investigate the accident nor did he interview any witnesses. He did not recall taking any notes at the scene but testified that any notes taken would have been turned over to his supervisor. In this case, the supervisor at the site was a Lieutenant Ryan.

After both vehicles were towed from the scene Trooper Sharron left the accident site and drove to Moses-Ludington Hospital in Ticonderoga, New York. His purpose at the hospital was to obtain the names of the individuals involved in the accident and information regarding their medical injuries. He described standard operating procedure under such circumstances to include interviews of nurses and doctors at the hospital to ascertain medical status of the parties involved. He could not recall whether he spoke to Trooper Kijowski while at the hospital.

On cross-examination the witness testified that although he and Trooper Kijowski car-pooled to and from work together, he could not state whether that occurred prior to or after August 13, 2004.

On redirect examination Trooper Sharron stated that although Trooper Kijowski was his friend, he did not recall speaking to him while at the hospital on the date of the accident.

The claimant's next witness was Investigator John Stubbe of the New York State Police. Investigator Stubbe testified that he attended the New York State Police Academy in 1990 and was thereafter assigned road patrol duties for the next ten years. In 2000 the witness was assigned to the Collision Reconstruction Unit in Newburgh, New York. He was then assigned to the Forensic Identification Unit in Ray Brook, New York, in February 2005 where his primary responsibility was the reconstruction of motor vehicle collisions.

Investigator Stubbe was the individual assigned to investigate the accident involving Trooper Kijowski on August 13, 2004. He was contacted by Captain David Dennon while at the State Police Messina Station, several hours from the accident site. He was informed by Captain Dennon that there was a personal injury motor vehicle accident involving a New York State Police vehicle. Captain Dennon informed the witness that the matter involved a rear-end collision and assigned him the task of investigating the accident in light of problems the State Police had experienced with the gas tank of Ford Crown Victorias exploding during rear-end collisions. Under ordinary circumstances the relatively slight nature of the injuries involved would not have required a response by Investigator Stubbe's unit had the accident not involved a rear-end collision.

After receiving notification regarding the accident at approximately 9:50 a.m., the witness arranged for Trooper Richard Hoff to meet him at the accident site where Investigator Stubbe arrived at approximately12:02 p.m. Upon his arrival the witness spoke to Lieutenant Ryan who provided him information regarding the individuals involved in the accident. Ryan also described his basic understanding of the manner in which the collision occurred, relating to Investigator Stubbe that the State Police vehicle was proceeding north on Routes 9N and 22 when the operator lost control and struck a southbound vehicle in the southbound lane of traffic.

Investigator Stubbe located Trooper Richard Hoff and the two performed a "walk-through" of the scene. As part of the walk-through they inspected the respective vehicles, identified probative evidence and took photographs and measurements. Upon the conclusion of the investigation of the scene both vehicles involved were towed to the State Police Station in Ray Brook, New York.

According to the witness there was no physical evidence at the scene to indicate the location where the State Police vehicle first lost control. Investigator Stubbe was at some point informed by Lieutenant Ryan that the loss of control occurred somewhere after a "hill crest" approximately 500 feet south of the point of impact between the vehicles. Photographs taken that day all depict the area north of the hill crest. Because Lieutenant Ryan had informed him that the loss of control first occurred in an area north of the hill crest, photographs were not taken of the area south of that point although that area is included in the diagrams prepared by Investigator Stubbe as part of his accident investigation. According to Investigator Stubbe he and Trooper Hoff walked to the hill crest and observed the area as part of their inquiry(1) .

The diagram of the accident scene prepared by Investigator Stubbe (see Exhibit 46) reflects the location of both vehicles as well as "metal scars" in the southbound lane of traffic. Investigator Stubbe measured the distance from the hill crest to a point immediately south of the metal scars, which he determined was the approximate area of impact. That distance measured 507 feet.

Investigator Stubbe's accident investigation report relates that heavy rain was falling at the time the collision occurred. The witness related that this information was derived from the "Chief of the Ticonderoga Police Department" whose name he could not recall but who informed the investigator that he was in the vicinity of the accident site at the time the collision occurred and that it was raining heavily at that time. The witness described the "metal scars" mentioned in the report as scratches upon the surface of the road. Both the report and the diagram prepared by Inspector Stubbe relate the existence of a skid mark on the road surface. The skid mark measured approximately 8 feet and was located on the shoulder of the roadway just south of the point where the trooper car came to rest. Inspector Stubbe did not recall observing any pooling water on the roadway during the walk-through he performed with Trooper Hoff although he agreed the road was wet. Due to inclement weather conditions at the scene on the date of the accident Investigator Stubbe returned to the scene on August 20, 2004 to observe the roadway in a dry condition in order to determine whether any other tire marks could be found.

On page three of his investigation report Investigator Stubbe related that the Kijowski vehicle was equipped with Goodyear Eagle RS radial tires, size P225/7R16. Tread depth and air pressure measurements established that both front tires had a tread depth of 3/32 of an inch and approximately 30 lbs. p.s.i. of air pressure. The tread depth on both rear tires was 5/32 of an inch and the left rear tire air pressure was approximately 31 lbs. p.s.i. The right rear tire was in a flattened condition and therefore no air pressure measurement was secured. Investigator Stubbe agreed that the tires of the State Police vehicle could properly be described as "well- worn". He further agreed that inadequate tread depth and under or over inflation of the tires could contribute to a loss of vehicle stability and control. In this instance, Investigator Stubbe testified that it would be more likely that the front tires of the State Police vehicle would hydroplane before the rear tires because the tread depth of the rear tires was greater than that of the front.

Investigator Stubbe testified to his conclusion that the State Police vehicle lost control due to hydroplaning, which he described as "where a car's tires will break free from the roadway surface and ride on top of the water". In this regard the witness stated that given Trooper Kijowski's description of the rear portion of his vehicle beginning to fishtail as well as the lack of tire marks on the roadway surface he determined that hydroplaning was the most likely cause of the loss of control testifying "the reason there wasn't [sic] any tire marks on the surface was because the tires weren't actually riding on the surface of the road, they were on water". As part of his investigation the witness determined that under the circumstances, including tire tread, tire pressure and weather conditions, the minimum speed at which Trooper Kijowski's vehicle would begin to hydroplane was approximately 56 miles per hour.

Investigator Stubbe also discussed his findings regarding the right taillight and brake light of the State Police vehicle, which he determined experienced "cold bulb break" as a result of the collision. Based primarily upon the color of the lightbulb filament he was able to determine that the taillights and break lights were not on or operating at the time of the accident. He agreed that the taillights were not on at the time they were broken and that ordinarily taillights are turned on at the same time as a vehicle's headlights.

Finally, the witness stated the conclusion that the main contributing factor to the loss of control of the Kijowski vehicle was speed too fast for conditions.

On cross-examination the witness testified that the Vehicle and Traffic Law standard for legal tread depth is 3/32 of an inch and that no separate or different standard exists relative to State Police vehicles. He testified that Exhibit 61 demonstrates that the Kijowski vehicle received a 100,000 mile maintenance service on August 5, 2004. The document also indicates in a column entitled "sequence" the numbers 1, 4, 6 and 7. According to the witness these numbers reflect maintenance sequence numbers, the first of which, number 1, indicates an oil change, as well as inspection and rotation of the vehicle tires.

On redirect examination the witness was unable to identify the services performed pursuant to maintenance sequences 4, 6 and 7, but stated that he was familiar with services performed under maintenance sequence 1 because those services are performed on each State Police vehicle every 5,000 miles. Maintenance sequences 4, 6 and 7 are only performed every 100,000 miles. Exhibit 84 contains a bill for services performed by North Country Towing dated August 5, 2004 which also indicates the performance of maintenance sequences 1, 4, 6 and 7. Investigator Stubbe did not personally confirm with the mechanic performing the service that the tires of the Kijowski vehicle were, in fact, inspected and rotated pursuant to maintenance sequence 1.

Claimant next called New York State Police Captain Robert LaFountain. Captain LaFountain was Zone 3 Commander on August 13, 2004. On that date, however, he was on scheduled leave and did not respond to the accident at issue herein. That responsibility was assumed by Lieutenant Patrick Ryan.

Upon returning to duty, Captain LaFountain stated that he confirmed the investigation was complete, reviewed investigation documents and submitted a cover memorandum with his determination as to whether he considered the accident to be preventable or non-preventable. Reviewing the investigation report and his memorandum (see Exhibit 46) the witness confirmed that he concurred with Inspector Stubbe's conclusion that the accident was caused by excessive speed relative to the existing conditions, primarily wet pavement. He agreed that both Mr. Finch and Ms. Wellons were interviewed as part of the investigation and that neither reported observing a vehicle proceeding northbound on Routes 9N and 22 immediately prior to the time of the accident.

On cross-examination the witness testified that State Police vehicles are inspected on a regular basis to ensure that equipment is functioning properly and that vehicles are also inspected as part of a routine maintenance program.

On redirect examination Captain LaFountain testified that the only standard utilized by the New York State Police to determine when worn tires should be replaced is that they be in compliance with New York State Law.

Claimant called Mr. David Brill. Mr. Brill testified that he first became employed by the Florida Highway Patrol in January, 1979. Upon graduating from the Florida Highway Patrol Academy he was assigned as a patrolman and continued in that capacity until he was promoted to the position of traffic homicide investigator sometime in the late 1980s or early 1990s. As a traffic homicide investigator his primary duty was to investigate fatal traffic accidents and those involving serious physical injury. In June, 1996 he became a full-time instructor in collision analysis and accident reconstruction at the Institute of Police Technology and Management, which is affiliated with the University of North Florida. He has also provided instruction at the New York State Police Academy. The defendant stipulated to Mr. Brill's qualifications as an expert in the area of traffic accident investigation and reconstruction.

Mr. Brill testified that he reviewed the investigation report prepared by Investigator Stubbe, various statements including those of Trooper Kijowski and Ms. Flack, as well as several exhibits regarding maintenance records and State Police policies and procedures with regard to the operation of emergency vehicles. He stated that his review of this matter led him to conclude that Trooper Kijowski's vehicle was traveling in a range between 79.5 and 83.5 miles per hour at the time of impact. Mr. Brill testified that given the general consensus that the Kijowski vehicle was fishtailing prior to impact it was "highly unlikely that it hydroplaned and it's much more likely that it was a loss of control due to the speed and existing weather conditions". He described hydroplaning as a relatively rare phenomenon and stated that a vehicle will never fishtail during a true hydroplane. Mr. Brill testified that it was his conclusion that operating the State Police vehicle at 85 m.p.h. under then existing conditions was a direct cause of the loss of control. The speed of the Kijowski vehicle in conjunction with reduced friction between the tires and the wet road caused a loss of lateral stability resulting in a loss of control. With regard to hydroplaning, the witness testified that the front tires of the Kijowski vehicle would be more likely to lose contact with the roadway because they contained less tread depth than did the tires on the rear of the vehicle.

The claimant's final witness was Lieutenant Patrick Ryan of the New York State Police. Lieutenant Ryan related that he was advised of an accident involving a State Police vehicle on Routes 9N and 22 on the morning of August 13, 2004. He related that as a commissioned officer he responded to the scene to gather information for the purpose of briefing the acting trooper commander on the circumstances of the incident and to insure that all necessary resources were available at the accident site. He proceeded from the State Police Headquarters in Ray Brook, New York, driving through what he described as a heavy rain to the accident site on Routes 9N and 22. Upon his arrival at the scene he observed various emergency vehicles and spoke to various individuals whose identities he could not recall. He did, however, recall speaking to a representative of the Ticonderoga Police Department at some point. Lieutenant Ryan recalled that in general the conversations with individuals at the scene upon his arrival led him to conclude that Trooper Kijowski had observed a speeding vehicle proceeding northbound on Routes 9N and 22 and that he performed a U-turn and accelerated in the northbound lane in an attempt to apprehend the violator. At some point his car fishtailed or hydroplaned and came into contact with the Flack vehicle. Neither Trooper Kijowski nor the Flacks were at the scene at the time the witness arrived.

According to Lieutenant Ryan his primary purpose in going to the scene of the accident was to form a basic conclusion with regard to the circumstances surrounding the incident and report back to his supervisors. He did not conduct any meaningful aspect of the investigation, did not speak to witnesses and did not maintain notes regarding any conversations or observations which occurred at the site. After approximately 20 minutes the witness left the scene and drove to Moses-Ludington Hospital. There he spoke to Sergeant Alverez, who was attempting to gather information regarding the medical status of Trooper Kijowski and the occupants of the Flack vehicle. The witness also spoke to Trooper Kijowski at the hospital. He inquired of the trooper what had transpired prior to the accident, advised him that an investigation of the matter was likely and that he would be required to provide a memorandum or other accounting of his activities immediately prior to the incident. He did not take notes of his conversations with either Sergeant Alverez or Trooper Kijowski. Thereafter he contacted Captain Dennon at Troop B Headquarters who directed the witness to contact the field commander's designee, Colonel James Shepperly and advise him as to the circumstances surrounding the accident. He also assisted Sergeant Alverez in sending a teletype message notifying State Police Headquarters in Albany that a "significant incident" had occurred.

The witness confirmed that the police accident report was prepared by Sergeant Julio Alverez who was a first-line supervisor charged with responding to the accident. Sergeant Alverez has since left the New York State Police and now resides in Spain. Although it was Lieutenant Ryan's understanding that it was raining at the time of the accident he could not confirm a statement to that effect contained within the police accident report from personal knowledge.

Finally, the witness testified that although each State Police vehicle is equipped with a gauge to measure tire tread the gauge is actually provided so that it is available to troopers when, during a stop, they suspect that the depth of a vehicle's tire tread fails to conform to the requirements of the Vehicle and Traffic Law.

Vehicle and Traffic Law 1104 provides drivers of "authorized emergency vehicles" engaged in an emergency operation a qualified privilege to disregard the rules of the road so long as certain safety precautions are observed (see Vehicle and Traffic Law 1104 [b][1]-[4]; Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Criscione v City of New York, 97 NY2d 152 [2001]). The statute expressly permits an emergency vehicle to disregard traffic control devices, speed limits, parking rules and regulations governing the direction of travel (Vehicle and Traffic Law 1104 [b][1]-[4]). The privilege afforded is a qualified one, however, permitting the imposition of liability where conduct rises to the level of recklessness (Saarinen v Kerr, 84 NY2d 494 [1994]).

The circumstances constituting an "emergency operation" are defined in Vehicle and Traffic Law 114-b and include the operation of a police vehicle "when such vehicle is . . . pursuing an actual or suspected violator of the law. . .". Contrary to Trooper Kijowski's testimony that he was pursuing a speeding vehicle when the accident occurred, claimant argues that the testimony of the non-party witnesses, Ms. Wellons, Mr. Finch, and Colleen Flack, establishes that, in fact, there were no vehicles speeding in a northbound direction of Routes 9N and 22. Claimant contends therefore that Trooper Kijowski was not engaged in an emergency operation thereby subjecting the defendant to liability under the less stringent negligence standard.

Ms. Wellons was equivocal in her testimony on this issue, stating at one point that she was looking at a field to the right and recalled no northbound traffic and at another point that there was no northbound traffic. Mr. Finch's testimony similarly failed to establish the absence of a speeding vehicle. When asked whether he observed a speeding vehicle in the northbound direction, he responded merely "not that I know of, no, nothing that like shocked me". Both Colleen Flack and Wendy Flack testified that they, too, could recall no speeding northbound vehicles. The testimony of Wendy Flack was undermined, however, by her admission during her examination before trial that she had seen something white in the moments before the accident and her subsequent admission that "I wasn't looking".

Having the opportunity to assess the demeanor of the witnesses and evaluate the substance of their testimony at trial, the Court concludes that the testimony of the claimant's witnesses was insufficiently definite to establish the absence of northbound traffic on Routes 9N and 22. On the other hand, the Court finds credible the testimony of Trooper Kijowski that he observed a white northbound vehicle which was exceeding the posted speed limit. No other reason has been offered as to why the trooper would perform a U-turn and accelerate as he did on wet roads in a direction opposite to that which would take him to his intended destination, a meeting with Ranger Mark St. Clair at the Ticonderoga Police Department. The fact that the emergency lights on the troop car were not operating at the time of the accident is not determinative of the issue where, as here, it has been established that an emergency vehicle is pursuing an actual or suspected lawbreaker (VTL 1104 [c]; 114-b; Criscione v City of New York, supra). Accordingly, the Court finds that Trooper Kijowski was engaged in an emergency operation when the accident occurred thereby immunizing the defendant from liability unless he acted with a reckless disregard for the safety of others.

As articulated by the Court of Appeals in Saarinen v Kerr, (84 NY2d at 501), the reckless disregard standard:

demands more than a showing of a lack of 'due care under the circumstances'- the showing typically associated with ordinary negligence claims. It 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 (quoting Prosser and Keeton, Torts 34, at 213 [5th ed]).

Applying this standard, the Court cannot conclude that the conduct of Trooper Kijowski in

the operation of the troop vehicle was reckless since the proof failed to show that, under the facts of this case, he purposely acted in disregard of a known or obvious risk of harm "so great as to make it probable that harm would follow". It is significant in this regard that the accident occurred in a rural area with fields on both sides of the road. The accident occurred during daylight hours at a time when there was only light to moderate traffic and Trooper Kijowski testified that he did not activate the emergency lights on the vehicle because he was "trying to control the traffic stop" by activating the lights in an area that was safe for the vehicles to pull to the side of the road. Notably in this regard the New York State Police Field Manual (Exhibit 31) states the following:

(a) Selecting An Area For The Stop

(1) Try to select a stopping area that allows maximum visibility of your Patrol Car and its emergency lighting.

Avoid stopping vehicles in such hazardous areas as curves, hillcrests and intersections.

* * *

(4) Try to select an area where there is sufficient room off the roadway for both your Patrol Car and the stopped vehicle (emphasis in original).

Trooper Kijowski's decision to pursue the speeding vehicle was admittedly made with an awareness of the risk the pursuit might pose to others, but in his judgment, at the time, this risk was outweighed by the risk posed by the northbound vehicle speeding on a wet roadway in an area where two fatal accidents had previously occurred. That he initiated the pursuit without his emergency lights activated was reasonable in light of his desire, in full accord with State Police policy, to effectuate the stop in a safe area.

In affording emergency personnel the qualified privilege to disregard the rules of the road, the Court of Appeals recognized that the privilege was necessary to enable them to carry out their important responsibilities which "will inevitably increase the risk of harm to innocent motorists and pedestrians"(Saarinen v Kerr, 84 NY2d at 502). Application of the lesser standard of negligence in emergency situations "would lead to judicial 'second-guessing' of the many split-second decisions that are made in the field under highly pressured conditions" (id. at 502).

In retrospect it may be concluded that Trooper Kijowski's decision to pursue the speeding vehicle at speeds in excess of the posted limit on wet roads was negligent. But on the morning of this accident Trooper Kijowski did not have the benefit of hindsight. Rather, he was required to make the type of split-second decision which judicial second-guessing should not supersede. "While hindsight can often furnish reasons for following one course or another, the acts of the trooper here must be considered as of the time when, and circumstances under which, they occurred (Stanton v State of New York, 26 NY2d 990, 991 [1970], rearg denied 27 NY2d 817 [1970]; see also Schieren v State of New York, 281 AD2d 828 [2001]; King v Village of Cobleskill, 237 AD2d 689 [1997]). Upon consideration of the rural character of the area in which this accident occurred, the fact that it was daylight, the threat to public safety posed by the speeding vehicle and the light to moderate traffic on the date of the accident, the Court cannot conclude that the conduct of Trooper Kijowski was reckless. That the worn condition of the tires undoubtedly contributed to the accident which Investigator Stubbe concluded was due to excessive speed on wet roads (Exhibit 47) does not alter this conclusion. Although Trooper Kijowski acknowledged his awareness of the fact that the tires on the troop vehicle would soon need to be replaced, he also testified that on the date of the accident the tread was "ample" and the evidence indicates that they met the legal limit. Importantly, claimant's own expert attributed the happening of the accident to excessive speed for the then prevailing conditions and discounted the effect of tread depth noting that the rear tires of the Trooper vehicle which ultimately lost contact with the road had more tread than did the front.

Important distinctions exist between the instant matter and other cases in which liability has been predicated on the reckless operation of an emergency vehicle. In Campbell v City of Elmira, 84 NY2d 505 (1994), the Court of Appeals upheld a jury verdict finding the defendant reckless in operating a fire truck through an intersection against a red traffic light, "indifferently and in disregard of any modicum of statutorily required attentiveness" (id. at 511). There, the jury found that the driver acted intentionally, in conscious disregard of a grave risk and with knowledge of the probability that harm would follow. No such conscious disregard for the safety of others is evident in the case at bar.

In Fioriello v Sasson (255 AD2d 549 [1998], lv denied 93 NY2d 817 [1999]) a police officer pursued a motorist for two traffic violations at speeds double the posted limit in a residential area during rush-hour traffic after dark, causing the motorist to collide with the plaintiff's vehicle. The Court held that a fair basis existed for the verdict in plaintiff's favor. Here, in contrast, the area was rural, traffic was light to moderate and the accident occurred during daylight hours.

In the context of a summary judgment motion, dismissal of the complaint has been granted where, for example, a high speed chase of an intoxicated motorcyclist on wet roads at night resulted in the motorcyclist going off the road and crashing into a sign (King v Village of Cobleskill, 237 AD2d 689 [1997]); a high speed chase in a rural area resulted in the motor vehicle which was being pursued going off the road and into the plaintiff's vehicle in the opposing lane of traffic (Mullane v City of Amsterdam, 212 AD2d 848 [1995]); a police officer's pursuit of motorist at maximum speed of 40 miles per hour with use of the wiggle-waggle lights resulted in a collision (Martin v Miller, 255 AD2d 816 [1998]; cf. Bliss v State of New York, 95 NY2d 911 [2000][question of fact was raised regarding whether or not operator of construction vehicle was reckless in rapidly backing truck with no rearview mirror down narrow decline on bridge onto heavily traveled interstate highway without sounding his horn]; Muniz v City of Schenectady, 38 AD3d 989 [2007] [question of fact existed as to whether or not police officer was reckless when he proceeded to make left turn in intersection without emergency lights operating and with an obstructed view of oncoming traffic]; Rouse v Dahlem, 228 AD2d 777 [1996] [question of fact was raised as to whether or not operator of police vehicle was reckless when he deliberately drove into the path of the plaintiff's motorcycle in such a manner that a collision was likely, if not unavoidable]).

In Saarinen v Kerr, (84 NY2d at 503) the Court of Appeals applied the reckless disregard standard to the facts at issue and concluded:

Measured against the prescribed standard of 'reckless disregard for the safety of others,' it is evident that, as a matter of law, Officer McGown's pursuit of Kerr did not overstep the limits of the statutory qualified privilege. It is true that McGown exceeded the posted speed limit, but that conduct certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law 1104 (b) (3). The other circumstances on which plaintiff and defendant Kerr rely - the wet condition of the road, the possibility of other vehicular traffic in the vicinity, the over-all speed of McGown's vehicle and McGown's purported delay in calling his headquarters - are similarly unpersuasive, particularly in the context of an inquiry based on the 'reckless disregard' standard.

Officer McGown's maximum speed of 60 m.p.h. was hardly a 'breakneck' pace for a police pursuit on relatively empty, nonresidential streets . . . . The wet condition of the roads and the possibility of vehicular traffic in the vicinity undoubtedly augmented the risk involved in the course of conduct McGown undertook, but the risk was one that McGown was entitled to take in the interest of stopping a motorist whose conduct on the road presented a clear and immediate threat to public safety.

A similar conclusion is appropriate in the instant matter. In Saarinen the officer was operating his vehicle at 60 m.p.h. in a 35 m.p.h. zone. Here the proof is that Officer Kijowski lost control of his vehicle, on a rural stretch of highway, at approximately 80 m.p.h. in a 55 m.p.h. zone. The proof further establishes that although the tires of the trooper vehicle were worn they met the requirements of State law and there exists no other standard unique to the State Police relative to minimum tire depth. Although the roadway was wet and it was raining at the time of the subject accident this circumstance also applied to the white northbound vehicle as well and heightened the potential risk posed by that vehicle to other users of the highway. Finally, any attempt to secure assistance from other police agencies in stopping the subject northbound vehicle would have resulted, according to Trooper Kijowski, in significant delay given the rural character of the area and the distance between the State Police Barracks in Schroon Lake and this particular section of Routes 9N and 22.

Only with the benefit of hindsight could it be said that the decision to pursue the speeding vehicle was error. The Court will not second guess Trooper Kijowski's decision to pursue a vehicle operating almost 20 m.p.h. above the posted speed limit, on wet roads, in the rain. Nor will the Court determine, in hindsight, that the manner in which the pursuit was undertaken was reckless. In this regard Trooper Kijowski provided a reasoned basis for his decision not to utilize either his vehicle's siren or emergency lights in that he intended to influence or control the area where the actual stop occurred consistent with applicable State Police policies.

For the foregoing reasons the claim is dismissed. Let judgment be entered accordingly.

September 4, 2007

Saratoga Springs, New York

Francis T. Collins

Judge of the Court of Claims


1. A memorandum prepared by Trooper Kijowski on August 18, 2004, indicates that he lost traction "on the straight section of roadway south of the accident scene, prior to a slight left[-]hand curve" (Exhibit 45).