New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-031-502, Claim No. 109395


State Trooper acted with reckless disregard when he executed a U-turn in front of Claimant’s vehicle. Claimant also found negligent. Claimant 50% and Defendant 50% responsible for accident.

Case Information

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: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Johnnie Green (“Claimant”) alleges that, on or about November 27, 2002, he was injured when a State Police vehicle suddenly pulled into traffic in front of his own vehicle on Route 11 in the Town of DeKalb, St. Lawrence County, New York. Claimant filed his claim on May 25, 2004. I held a trial, on liability only, on May 9, 2006, in Utica, New York. Counsel then filed post-trial memoranda, reprisals and motions.

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 first.

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 semi”[1] 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 surprise.

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 accident.

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.
Reckless Disregard Standard
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 injuries.

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 standard.[2]

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 negligence.

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.

June 14, 2007
Rochester, New York
Judge of the Court of Claims

[1].All material in quotation marks with no attribution are from the trial transcript.
[2].An emergency operation can be “pursuing an actual or suspected violator of the law” (Vehicle and Traffic Law § 114-b).