On November 27, 2002, Claimant was a student at Potsdam State University. On
the day in question, he was leaving the Potsdam campus and driving to his
family’s home in Watertown, New York, for the Thanksgiving holiday.
Claimant testified that, as he drove south on Route 11, he was stopped by a
State Trooper and ticketed for a cracked windshield. Once the transaction was
completed, Claimant pulled back onto Route 11, proceeding south, leaving the
Trooper still parked on the side of the road. Claimant stated that the Trooper
did eventually pass him on the southbound highway. It was not clear from
Claimant’s testimony as to how long it was after the traffic stop, or how
far Claimant drove after the stop, before Claimant observed a vehicle on the
right side of the southbound highway.
Claimant testified at trial that he proceeded up a hill and that, at the
hill’s crest, he observed a State Trooper’s vehicle (“troop
car”) and saw red lights on top of the car flashing. He stated at trial
he was three or four car lengths away when he first observed the troop car. Up
until that point, he had been driving 55 miles per hour, but he slowed to 40
miles per hour as he approached.
The approach to the troop car from the hill’s crest was downhill.
Claimant states that, “within a nanosecond,” the troop car performed
“a pivot or a lurch” placing the troop car at the
11 o’clock position in Claimant’s lane. It appears from the
trial testimony that the troop car hesitated, then proceeded to cross the
southbound lane. It was at that time that the front of Claimant’s car hit
the driver’s side of the troop car.
Trooper Peter Peters was driving the law enforcement vehicle involved in the
accident. Claimant called Trooper Peters on his case in chief. Trooper Peters
has been a State Trooper since October 2000 and, at the time of the accident,
was posted in Gouverneur, New York and was working the 7:00 a.m. to 7:00 p.m.
shift. He was responsible for patrolling DeKalb, Gouverneur and the small towns
in the area. Specifically, he was to respond to complaints and look for Vehicle
and Traffic Law infractions.
Trooper Peters was running radar that evening and recalled stopping Claimant
for traveling 74 miles per hour. He stated at trial that Claimant was polite
and cooperative so Trooper Peters gave him a break, found a traffic infraction
and wrote him a ticket for a cracked windshield at approximately 5:15 p.m. that
evening. Both vehicles reentered the southbound lane of Route 11 between 5:20
and 5:22 p.m. Trooper Peters confirmed that he let Claimant enter the road
Trooper Peters described how the lights on his car worked. The lights on the
roof, referred to as “gumballs,” flash red and white when activated.
When the gumballs are activated, two round red lights, mounted inside the car in
the rear windshield also flash. In addition, the car’s headlights have a
third position and, when in the third position, the lights flash in an
alternating pattern. All the lights, as just described, can be activated by a
button on the steering wheel. Trooper Peters testified that all the lights were
activated when he pulled Claimant to the side of the road for speeding.
Route 11 is generally a two-lane highway with a “fog line”
indicating the outside of a car lane and the beginning of the shoulder of the
road. Some portions of the road have double yellow lines indicating
“no-passing” zones, as well as specifically designated traffic lanes
for slow-moving traffic. The area of Route 11 where the accident occurred is
depicted in Exhibits E-3, E-8 and E-5. Exhibit E-3 depicts Route 11 looking
south. The road appears to lie flat until a dip can be seen past the farm silo
on the left, then a rise in the road beyond the dip. The pavement is marked by
a solid yellow line for the southbound lane with a broken yellow line for the
northbound, indicating that traffic traveling southbound may not cross over into
the northbound lane to execute a pass. It appears from Exhibit E-3 that it
might be difficult to see traffic traveling northbound in the “dip.”
The markings change to a solid yellow line for the northbound lane with a broken
yellow line for the southbound lane as you approach the farm house,
approximately at the place on the road where a driver could see traffic in the
dip (Exhibit E-5).
Trooper Peters stated he overtook Claimant about 1 to 1.5 miles after leaving
the location of the traffic stop. After passing Claimant, Trooper Peters
observed another traffic infraction involving a third vehicle. He stated he was
driving up a slight incline (Exhibit E-1) and, as he came over the crest, he saw
a tractor-trailer in his lane, passing two or three vehicles (Exhibit E-3).
Trooper Peters immediately pulled off the road to avoid a head-on collision and
switched on all his lights (Exhibit E-8). He testified the tractor-trailer was
driving in a no-passing zone (Exhibit E-11).
Trooper Peters testified that, when his vehicle came to a stop after the
evasive maneuver, it was completely within the breakdown lane, to the right of
the fog line. He marked Exhibit E-8 with his location. He stated he intended
to try and turn around to “go get the
before it caused an accident. He
determined that he needed to turn around to pursue the tractor-trailer and he
had to cross the southbound lane. He “looked over [his] shoulder several
times at the southbound traffic.” He observed a car approximately 20 feet
away that appeared to have stopped. He then looked a couple more times
northbound and three times southbound. He started to turn into the southbound
lane. By this point in time, he had turned on his left directional light as
well as his flashers. He moved slightly to his left so that his left front tire
was on or just over the fog line. This gave him a better view of the vehicles
behind him. He stopped to look at the northbound traffic that had come to a
stop. He also looked southbound over his left shoulder and the southbound
traffic appeared to have stopped as well. This took between two to five
seconds. He determined it was safe so he pulled about halfway out, about six to
eight feet, and that was when he was struck by Claimant’s car. He stated
that the doorpost of his car was over the center line of the road at the time of
impact. Trooper Peters testified that the collision came as a total
The impact dented the driver side rear door and caused the rear of Trooper
Peters’ vehicle to move south and the front north. Trooper Peters exited
his car and observed Claimant as the driver of the vehicle that hit him. He
stated he also talked to another driver in a third car that witnessed the
accident. This was at approximately 5:25 p.m.
Claimant called Trooper Jennifer Gottstine to testify. At the time of the
accident, she was a Line Sergeant and Trooper Peters’ supervisor. One of
her duties was to investigate accidents involving troop cars and write a report.
She conducted an investigation of this accident, arriving at the scene
approximately 20 minutes after it happened.
Trooper Gottstine took several photographs of the scene. Exhibit D-7 depicts
the damage to the driver’s side rear door of Trooper Peters’ car,
which appeared to be the point of impact and the part of the vehicle that
sustained the most damage (Exhibit C). The location of Trooper Peters’
vehicle as depicted in Exhibit D-1 shows his vehicle’s front end facing
almost north and the back end facing south with three-quarters of the vehicle in
the northbound lane. In Exhibit D-2, it appears that the whole troop car is in
the northbound lane.
Trooper Gottstine was also responsible for filling out an accident report
(Exhibit C). It is important to note that she had spaces on the report form to
list contributing factors to the accident. She listed only one, which she
ascribed to Trooper Peters, and that was an “improper U-turn.”
Claimant’s car sustained damage to the front end, with the point of
impact being the front center of the car. This was also the part of the car
that sustained the greatest damage (Exhibit C). Trooper Gottstine opined that
the partial skid mark depicted in Exhibit D-3 in the southbound lane was caused
by Claimant’s vehicle.
Also during her investigation, Trooper Gottstine took supporting depositions
from Claimant and an eyewitness, Chandra Wilson (Exhibits A and B).
Claimant’s supporting deposition supports Trooper Peters’ testimony
that he moved into the southbound lane, hesitated, then pulled out. Claimant
stated in his supporting deposition that the troop car’s initial
hesitation led him to believe that Trooper Peters saw his car coming. Claimant
stated he knew Trooper Peters was executing a U-turn so he “hit” his
brakes but ended up colliding with the side of the troop car (Exhibit B).
Chandra Wilson observed the accident. She was traveling in the northbound lane
at the time. She observed the troop car traveling in the southbound lane,
having just driven down an incline in the road. She testified that the troop
car pulled over to the side of the road with all its lights operating. She was
unable to give any testimony regarding what, if anything, could have caused
Trooper Peters to pull over to the side of the road with his red/white flashers
on, as well as his right directional. She stated she responded by slowing down
and pulling off the road herself to give the troop car the right-of-way. When
she stopped, she was about 100 feet or less away from the troop car. While she
never observed any tractor-trailer in her lane pass any vehicles, either before
or after she pulled over, she did observe a tractor-trailer and two vehicles
traveling in the southbound lane pass by the troop car before the
Ms. Wilson testified that she first saw Claimant’s car when he was
approximately 500 to 1000 feet away and she estimated that he was traveling at
approximately 55 miles per hour. It appeared to her that Claimant was slowing
down as he approached and that he actually slowed down to about 2 miles per
hour. While Claimant was slowing down, the troop car’s directional went
from right to left and she saw the troop car “inch out away from the curb
or fog line and started [sic] to turn.” She estimated that Claimant was
approximately 40 to 50 feet from the Troop car at this point in the
Trooper’s attempted turn.
Ms. Wilson testified that, at this point, the Troop car stopped for about 10
seconds. Claimant’s car was then observed accelerating as he approached
the troop car, which was now about 3 feet into the southbound lane. During her
examination at trial, Ms. Wilson had difficulty remembering if the troop car
moved again, after the 10 second stop but prior to the impact. However, having
examined the damage to the troop car and Claimant’s vehicle, as well as
having Claimant’s and Trooper Peters’ testimony, I find the troop
car did move again, further into the southbound lane, and was struck by
Claimant’s car, t-bone style.
Claimant maintains that Defendant’s failure to plead Vehicle and Traffic
Law § 1104(e) (reckless disregard standard) as an affirmative defense
in its answer constitutes a waiver of statutory immunity, citing Culhane v
State of New York (180 Misc 2d 61). The Culhane court determined
that § 1104(e) should be pled by defendant as an affirmative defense
in the interests of fairness and the avoidance of surprise, relying on CPLR
§ 3018(b). CPLR § 3018(b) states that a party should plead
“all matters which if not pleaded would be likely to take the adverse
party by surprise or would raise issues of fact not appearing on the face of a
prior pleading . . .” (id. at 65). In Culhane, claimant was
hit by a troop car and claimed negligence. The court found that the facts that
could trigger the applicability of § 1104(e), namely that the Trooper
was involved in an emergency operation thus the standard would be reckless
disregard, were facts particularly within the knowledge of the defendant. The
court determined that because these were facts known only to defendant, claimant
would have no knowledge of them and be surprised (id.). Thus, in
Culhane, the court found that the application of Vehicle and Traffic Law
§ 1104 should have been pled as an affirmative defense.
The New York Court of Appeals (“NYCA”) discussed the nature of an
affirmative defense in Ferres v City of New Rochelle (68 NY2d 446). In
Ferres, plaintiff contended that defendant could not rely on General
Obligations Law (“G.O.L.”) § 9-103 (immunity for landowner
except for willful or malicious acts or omissions) when it failed to plead it as
an affirmative defense (Ferres, at 450). The NYCA stated, unequivocally,
that G.O.L. § 9-103 was not an affirmative defense that must be pled,
but rather a statute whose “sole effect is to establish the substantive
law defining the extent of the duty owed to plaintiff, and the facts, which
arguably bring the case within the statute, are what plaintiff, himself,
asserts . . . ” (id.).
Here, there is no question that a troop car can be an authorized emergency
vehicle pursuant to Vehicle and Traffic Law § 1104(e) and held to the
higher reckless disregard standard if in the midst of an emergency operation
(Vehicle and Traffic Law § 1104(a), (c); Szczerbiak v Pilat, 90 NY2d
553). There is no dispute that, at the time of the accident, Trooper Peters had
activated his emergency lights. During discovery and throughout the
proceedings, Trooper Peters has maintained that he began to execute the U-turn
that caused the accident while in pursuit of a vehicle that committed a Vehicle
and Traffic Law violation. This assertion is contained in the police accident
report completed by Trooper Gottstine on the day of the accident (Exhibit C).
There is no surprise to the Claimant here who had ample opportunity to explore
the facts and circumstances surrounding the accident long before trial.
Vehicle and Traffic Law § 1103 mirrors § 1104 and, although it
applies to “hazard vehicles” as opposed to “emergency
vehicles,” the language creating the reckless disregard standard is
identical (see Riley v County of Broome, 95 NY2d 455). Courts have
determined that Vehicle and Traffic Law § 1103 is not an affirmative
defense to be pled in the answer. Vehicle and Traffic Law § 1103 states
that Vehicle and Traffic Laws generally do not apply to hazard vehicles
“actually engaged in hazardous operation.” However, this qualified
immunity will not protect the defendant if their conduct amounted to the
reckless disregard for the safety of others (Vehicle and Traffic Law
§ 1103(b); McDonald v State of New York, 176 Misc 2d 130, 141).
In McDonald, the court determined that the “legal effect of Vehicle
and Traffic Law § 1103 ‘is to establish the substantive law defining
the extent of the duty owed’ to our claimants, and the facts that bring
the case within the statute are what the claimants themselves allege - - that
they were injured in a collision with a State snowplow engaged in plowing snow
upon a public highway” (id., 140 - 141).
Here, Claimant alleges that a Trooper operating a troop car “suddenly and
without explanation, veered out into the roadway” (Claim, para. 2).
Although the claim makes no reference to the troop car being involved in an
emergency procedure and/or having his flashers and lights operating,
Claimant’s own supporting deposition confirms that the red lights were
operational (Exhibit B). There were enough facts at the outset known by
Claimant and eventually disclosed in discovery that would bring this out of the
surprise rule in Culhane. As with Vehicle and Traffic Law § 1103 in
McDonald, here, the sole effect of Vehicle and Traffic Law § 1104 is
to establish the substantive law regarding the duty Trooper Peters owed
Claimant. Trooper Peters owed Claimant the duty to drive with due regard for
the safety of all and he can be held liable for the consequences of his reckless
disregard for the safety of others. Vehicle and Traffic Law § 1104(e) is
not an affirmative defense that must be pled, and the Defendant has not waived
qualified immunity pursuant to Vehicle and Traffic Law § 1104(e), although
it would have been the better practice to raise this issue earlier by way of a
motion (Ferres, 68 NY2d at 450; see also Dale & Gere v State of
New York, Ct Cl, April 24, 2002 [Claim No. 98032, Motion No. M-64647],
Lebous, J., UID #2002-019-527).
The penultimate issue is whether or not Trooper Peters acted without due regard
for the safety of others and, by his reckless actions, caused the accident that
injured Claimant. I find that Trooper Peters’ conduct amounted to
reckless disregard and his conduct was the proximate cause of Claimant’s
I was troubled by the lack of corroboration on the issue of the tractor-trailer
that was allegedly passing other cars going northbound in violation of the
Vehicle and Traffic Law. There was a question as to whether or not Trooper
Peters was in the midst of an emergency operation. His conduct certainly rose
to the level of negligence. However, given the fact that his red and white
flashers were operating, as well as the rest of the emergency lights, in
addition to his testimony that his intent was to apprehend a vehicle driving in
violation of the Vehicle and Traffic Law, I find that Claimant must prove the
Trooper’s conduct met the higher
The one eyewitness to the accident testified that she observed Claimant
traveling in the southbound lane and that, although it was obvious to her that
he had slowed down, he never stopped. The action by Trooper Peters of inching
out onto the road, then hesitating, caused Claimant to believe he would be
allowed to pass and to proceed at a greater speed since he was by now only 40 to
50 feet away from the troop car. In addition, the New York State Police
investigation cited Trooper Peters for an improper U-turn.
Claimant is also at fault. He observed Trooper Peters pulled off to the right
side of the road with his emergency lights engaged. He even slowed his car
anticipating some type of movement by the troop car. Rather than continue to
slowly approach or even pull over and stop as Chandra Wilson did, Claimant
accelerated. Claimant’s conduct amounted to contributory
I find Defendant 50% liable and I find Claimant 50% liable.
A trial on damages shall occur as soon as practicable.
All other motions are hereby denied.
Let interlocutory judgment be entered accordingly.