New York State Court of Claims

New York State Court of Claims

DEMERS v. STATE OF NEW YORK, #2007-039-034, Claim No. 109168, Motion No. M-73067


Synopsis


Defendant’s motion for summary judgment on the ground of qualified immunity pursuant to Vehicle and Traffic Law § 1104 denied. Pedestrian Tonya Hilliker and claimant Winfield Ward’s vehicle were struck by a white car that was involved in a high speed pursuit by a New York State Police cruiser. The co-administrators of Hilliker’s estate and claimant Ward brought claims against the State of New York alleging, among other things, that the officers were negligent and reckless in their pursuit of the white car, thereby causing the collision and resulting in death and injuries to Hilliker and Ward. The Court determined that, although the officers were operating an “authorized emergency vehicle” that was engaged in an “emergency operation” at the time of the accident, a triable issue of fact exists as to whether the police acted with reckless disregard when they pursued the white car at a high rate of speed into an area of the city that is known to be densely populated.

Case Information

UID:
2007-039-034
Claimant(s):
RICHARD DEMERS and SHEILA DEMERS and VICKIE DEMERS, as Co-Administrators of the Estate of Tonya M. Hilliker
Claimant short name:
DEMERS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the captions to reflect the State of New York as the only proper Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109168
Motion number(s):
M-73067
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Tepper, Dardeck & Levins, LLP
By: James G. Levins III, Esq., Of Counsel
Attorneys for Richard and Sheila Demers
(Claim No. 109168)

Anderson, Moschetti & Taffany, PLLC
By: David J. Taffany, Esq., Of Counsel
Attorneys for Vickie Demers
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Stephen J. MaherAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-039-035


Decision

On April 19, 2003, at approximately 2:30 A.M. in the City of Glens Falls, pedestrian Tonya M. Hilliker (hereinafter decedent) and claimant Winfield Ward’s vehicle were struck by a white car that was involved in a high speed pursuit by a New York State Police cruiser. Thereafter, the co-administrators of decedent’s estate and claimant Ward brought claims against the State of New York (hereinafter defendant) alleging, among other things, that the officers were negligent and reckless in their pursuit of the white car, thereby causing the collision and resulting death and injuries to decedent/claimant. Issue was joined and an order for joint trial of the claims and consolidation of discovery was signed by the Court (Hard, J.). Defendant now moves the Court for an order granting summary judgment on the ground of qualified immunity pursuant to Vehicle and Traffic Law § 1104.

“The operator of an ‘authorized emergency vehicle’ (see Vehicle and Traffic Law § 101) who is engaged in an ‘emergency operation,’ as defined by Vehicle and Traffic Law § 114-b, is afforded the benefits of Vehicle and Traffic Law § 1104 . . . including protection from civil liability unless engaged in acts of reckless disregard” (Gonyea v County of Saratoga, 23 AD3d 790, 791 [2005] [citations omitted]).
“This 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” (Saarinen v Kerr, 84 NY2d 494, 501 [1994], quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]).
Moreover, “ ‘[w]hile the nature of the underlying police call or the officer’s perception of its urgency is irrelevant for purposes of ascertaining whether the officer was engaged in an emergency operation . . . ‘the nature of the call nevertheless is relevant in determining whether a responding officer’s conduct was in reckless disregard for the safety of others’ ” (Muniz v City of Schenectady, 38 AD3d 989, 991 [2007] quoting O’Banner v County of Sullivan, 16 AD3d 950, 952 [2005]).

The Court finds in the first instance that the officers were operating an “authorized emergency vehicle” that was engaged in an “emergency operation” (Vehicle and Traffic Law §§ 101 and 114-b). Pursuant to Vehicle and Traffic Law § 101, a police vehicle is an “authorized emergency vehicle.” Additionally, an “authorized emergency vehicle” is considered to be engaged in an “emergency operation” when it is, among other things, “pursuing an actual or suspected violator of the law” (Vehicle and Traffic Law § 114-b). In support of its motion, defendant offers transcripts of the pursuing officers’ deposition testimony which constitute sufficient proof to establish, prima facie, that the officers were “pursuing an actual or suspected violator of the law” and were therefore involved in an “emergency operation.” More specifically, Officer Gilbert testified that on the occasion in question he was operating his patrol car when he observed a white car “tailgating” his vehicle. He further testified that, after following the white car, he observed it proceed the wrong way down a one-way street. He then attempted to conduct a traffic stop, but the white car sped away, thereby necessitating the officers’ high speed pursuit of the vehicle. Officer Bouyea, a passenger in the patrol car during the pursuit, provided similar testimony. Claimants do not challenge this aspect of the motion.

Instead, claimants contend that a triable issue of fact exists as to whether the police acted with reckless disregard when they pursued the white car at a high rate of speed into an area of the city that is known to be densely populated. The Court agrees. Certainly, “since the evidence indicates that the conduct of the fleeing motorist posed a threat to the public safety, the officer[s] [were] authorized to ‘use whatever means [were] necessary, short of the proscribed recklessness, to overtake and stop the offending driver’” (Powell v City of Mount Vernon, 228 AD2d 572, 573 [1996], quoting Saarinen v Kerr, supra at 503). The Court also recognizes that Officer Gilbert’s conduct in exceeding the posted speed limit “cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)” (Saarinen v Kerr, supra at 503). Moreover, Officers Gilbert and Bouyea testified that the weather conditions were clear, and there is ample proof before the Court that the patrol car’s flashing red lights and siren were on during the pursuit.

Nonetheless, the record contains proof which suggests that the officers knowingly continued the high speed pursuit into an area of Glens Falls with heavy pedestrian traffic. In Saarinen v Kerr, (supra at 503), the police pursuit took place on “relatively empty, nonresidential streets,” a factor considered by the Court of Appeals in upholding the trial court’s award of summary judgment dismissing the complaint (see also Spalla v Village of Brockport, 295 AD2d 900, 900-901 [2002]; compare Teitelbaum v City of New York, 300 AD2d 649, 650 [2002] where driver mounted sidewalk in a densely-populated area after officer sounded siren while stuck in traffic and grant of City’s motion for summary judgment was affirmed). Here, Officer Gilbert acknowledged during his deposition that the accident area contained “high amounts of traffic in terms of people, pedestrians and [is] a busy part of Glens Falls at 2:30 in the morning” and that the area is “a high bar district establishment.” Additionally, although Officers Gilbert and Bouyea testified that they discontinued the pursuit a considerable distance from the scene of the accident, claimants offer supporting depositions and statements from various witnesses in opposition to the motion which suggest that the high speed pursuit may have occurred closer to the scene of the accident than indicated by the officers. Thus, it cannot be said that no triable issue of fact exists as to whether the police operated their vehicle “in reckless disregard for others at the time of the accident” (Badalamenti v City of New York, 30 AD3d 452, 453 [2006]).

Accordingly, it is hereby ordered that M-73067 is denied.

September 27, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion for Summary Judgment dated March 16, 2007;
  1. Affirmation of Stephen J. Maher, Esq. in Support of Motion for Summary Judgment dated March 16, 2007 with exhibits;
  1. Affirmation of Lois Goland, Esq., dated on March 16, 2007;
  1. “Affidavit” of David J. Taffany, Esq., in Opposition to Motion for Summary Judgment dated March 27, 2007 with exhibits;
  1. Affidavit of Malcolm B. O’Hara, Esq., in Opposition to Motion for Summary Judgment sworn to on March 30, 2007 with exhibits;
  1. Reply Affirmation of Stephen J. Maher, Esq., dated April 2, 2007;
  1. Sur Reply Affirmation of David J. Taffany, Esq., dated April 4, 2007;
  1. Response of James G. Levins III, Esq., to Defendants’ Motion for Summary Judgment dated April 3, 2007; and
  1. Affirmation of James G. Levin III, Esq., dated April 12, 2007.