New York State Court of Claims

New York State Court of Claims



Thruway Authority not liable for accident that occurred when a car in front of Thruway Authority truck suddenly applied its brakes because a dog ran onto the Thruway, causing the truck to swerve and collide with a truck in the adjacent lane. The actions of the car driver in suddenly braking while he was accelerating onto the Thruway warranted application of the emergency doctrine, leading to the conclusion that the Thruway Authority driver was not negligent despite losing control of his truck.

Case Information

PATRICIA JACOBELLIS, as Administrator of the Estate of RICHARD JACOBELLIS, SR., Deceased
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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Barry Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises out of a collision between a tractor-trailer operated by claimant’s decedent, Richard Jacobellis, Sr., and a truck owned by the Thruway Authority and operated by one of its employees. [1] The trial was bifurcated and only the issue of liability will be determined herein.

Robert Smith was the driver of the Thruway truck that collided with claimant’s vehicle. Mr. Smith, who is now retired, had been a bridge repair mechanic for the Thruway Authority since the 1960’s. He started work at 6:30 a.m. on June 1, 2001, and some time thereafter he left the Thruway Authority yard en route to a repair job, driving what he described as a high-lift truck. He was driving between 55 and 60 m.p.h., northbound in the right lane of the Thruway, which contains two travel lanes. The speed limit was 65 m.p.h. Behind him was a Thruway dump truck being driven by Fanny Dina. Smith stated he checked his brakes, tires, turn signals, etc., before leaving the yard, as per his normal routine. He drove for between five and ten miles on the Thruway before reaching the Plattekill service area, near milepost 65.

Smith testified that as he approached the service area, he saw a car leaving the service area, so he slowed down to allow the car to enter the driving lane in front of him. As the car was entering the driving lane, an animal ran onto the road and the car applied its brakes, as did Smith. He stated that his truck was top-heavy, and as he hit the brakes the truck started swaying. The next thing he knew, the truck was resting on the passenger side in the center median. He did not remember contacting the car and did not know if his truck skidded, but he did recall seeing in his rearview mirror claimant’s tractor-trailer in the left lane. He got out of his truck and sat on the median guide rail waiting for emergency personnel who took him to a local emergency room. According to Exhibit 2, a Thruway Authority Inter-Office Memorandum written by D. Monchino addressed to W. Behrens, the car in front of Smith encountered a dog standing on the Thruway, Smith’s truck struck the rear of the car and the truck left two skid marks totaling 290 feet in length, with a 110-foot gap between the two skid marks. [2]

Smith could not estimate how far he was from the car in front when he saw the car apply its brakes. He first saw the car on the ramp from the service area when it was about two thirds of the way down the ramp. When the car’s brakes were applied, it was partially in the driving lane and partially in the ramp. Smith stated that as soon as the animal ran onto the road, the car’s brake lights came on. Although Smith’s recollection of the details of the incident was poor, the court’s impression was that he was a credible witness.

A portion of claimant’s deposition transcript dated June 9, 2004 was received in evidence. [3] He testified he was driving northbound on the Thruway, at the speed limit, and moved into the left lane about two miles before the Plattekill service area. He believed the speed limit was 55 m.p.h. He observed a convoy of what he thought were three or four Thruway Authority trucks in the right lane and stated that at one point, the lead vehicle began to skid, with smoke coming from the tires. He stated he took his foot off the accelerator and the rest happened so fast that he did not recall anything except for the truck skidding into his lane and the front of his tractor-trailer striking the driver’s side of the Thruway truck. He had no view of any vehicle in front of the Thruway truck due to the relative positions of their vehicles.

Fanny Dina, the driver of the Thruway dump truck that was behind Smith’s truck, testified for the defense. She stated that as she drove northbound about 130 to 140 feet behind Smith’s truck, she noticed claimant’s tractor-trailer pass her in the left lane. As they passed the Plattekill service area, she saw a dark colored car accelerating on the ramp entrance from the service area. When she first saw the car, it was about even with her truck, but it accelerated, passed the Smith truck and entered the highway in front of the Smith truck. She saw Smith’s brake lights come on and his truck was decelerating as the car went past him and entered the highway. A few seconds later, she saw his truck slide across the road and onto the center median. She stated that claimant’s tractor-trailer was next to the center of Smith’s truck when it swerved to the left. She did not see Smith’s truck collide with any other vehicle, nor did she see the animal in front of the car.

At trial, the court reserved decision on defendant’s motion to dismiss the claim. Now, after consideration of all the evidence, the court grants the motion, finding that the collision between claimant’s and defendant’s vehicles was an accident, not attributable to negligence on the part of defendant’s employee.

Negligence is the failure to exercise ordinary care “under the circumstances of a particular case” (McLean v Triboro Coach Corp., 302 NY 49, 51 [1950]). What has come to be known as the “emergency doctrine” recognizes that “when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonably and prudent in the emergency context” (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]). This does not mean that one who is confronted with an emergency situation is relieved from the duty of ordinary care, but rather that conduct that might constitute negligence in the absence of an emergency situation may nevertheless be held to be non-actionable given the emergency context (Ferrer v Harris, 55 NY2d 285, 292-293 [1982]).

The emergency doctrine finds frequent application in cases involving motor vehicles suddenly and unexpectedly confronted by unforeseen obstacles in their path. For example, in Barath v Marron (255 AD2d 280 [2d Dept 1998]), plaintiff’s vehicle had been forced to precipitously slow down when a vehicle attempted to merge onto the Southern State Parkway in front of it. The vehicle immediately behind (driven by defendant # 1) collided with the rear of plaintiff’s vehicle and the vehicle behind them (driven by defendant # 2) collided with the other two. A verdict in favor of the two defendants was affirmed, with the court accepting as reasonable the jury’s conclusion that “the defendants were faced with an emergency situation not of their own making that could not have been reasonably foreseen” (id., at 281). See also Garcia v Prado (15 AD3d 347 [2d Dept 2005]); Caffery v BJY Materials, Inc. (11 AD3d 649 [2d Dept 2004]); Drakes v New York City Tr. Auth. (11 AD3d 580 [2d Dept 2004]).

The facts of this case are even more compelling in warranting application of the emergency doctrine than those of Barath, in which a vigorous dissent maintained that merging traffic, even traffic that merges suddenly or swiftly, is not unusual and not something that is not reasonably foreseeable (Barath v Marron, 255 AD2d 280, supra, 282-284, Luciano, J. dissenting). Here, the emergency confronting Smith was not merely an automobile merging into high-speed Thruway traffic in front of him, but one which suddenly and vigorously applied its brakes due to the presence of an animal on the Thruway, a wholly unexpected and unforeseeable occurrence. While Smith’s actions in losing control of his truck, striking the car in front of him and crossing into the path of claimant’s vehicle might have provided strong support for a finding of negligence in the absence of the emergency context, given the unforeseeable situation with which he was confronted the court cannot conclude that his conduct fell short of the reasonable care standard. Even if Smith had had the benefit of more time, the court cannot say that his actions to potentially defend the life of the car driver would have been unreasonable or imprudent. Under these circumstances, the court finds that this unfortunate accident was just that: an accident not attributable to fault on the part of any party before the court.

Accordingly, the Clerk of the Court is directed to enter a judgment of dismissal.

July 20, 2007
White Plains, New York

Judge of the Court of Claims

[1].Claimant died of causes unrelated to the circumstances of this claim. Further references herein to “claimant” shall mean Mr. Jacobellis.
[2].Claimant’s counsel indicated he served a subpoena on Monchino but he did not appear at trial because he was out of town on vacation. Defense counsel indicated Monchino was no longer employed by the Thruway Authority. The exhibit was admitted solely for the factual description of the accident, not for any conclusions drawn by Monchino reflected in the exhibit.
[3].Exhibit A.