New York State Court of Claims

New York State Court of Claims

HARRINGTON v. STATE OF NEW YORK, #2007-039-045, Claim No. 109133, Motion Nos. M-73276, CM-73508


Synopsis


Defendant moves the Court for an order granting summary judgment pursuant to Vehicle and Traffic Law § 1104. Claimant cross moves the Court for an order granting summary judgment on the ground that defendant’s negligence was the sole cause of his injuries. Both motions are denied. Defendant’s argument that it is entitled to qualified immunity pursuant to VTL § 1104 [c], and that its conduct on the occasion in question should be scrutinized in accordance with the reckless disregard standard thereunder, is not persuasive. It is undisputed, and the Court agrees, that the DOCS van was an “authorized emergency vehicle” engaged in an “emergency operation” pursuant to VTL §§ 101 and 114-b. Thus, relying upon the Court’s rationale in Church v City of New York, 268 AD2d 382 [2000], as well as the definition of a police vehicle pursuant to VTL § 132-a, defendant is entitled to the heightened recklessness standard and claimant’s cross motion for summary judgment must be denied. Defendant having failed to offer sufficient proof in admissible form to show that the driver of the DOCS van did not operate the vehicle with reckless disregard for the safety of others pursuant to VTL § 1104 (e), thereby failing to meet its prima facie burden, defendant’s motion for summary judgment must also be denied.

Case Information

UID:
2007-039-045
Claimant(s):
CURTIS HARRINGTON
Claimant short name:
HARRINGTON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109133
Motion number(s):
M-73276
Cross-motion number(s):
CM-73508
Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Robert W. Nishman, Esq.
By: Moore & Lane, LLPBy: Jonathan Moore, Esq., of counsel
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Frederick H. McGown, IIIAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 7, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Curtis Harrington, an inmate at the time of the circumstances alleged herein, seeks damages for injuries he allegedly sustained on January 30, 2003 while a passenger in a Department of Correctional Services’ van (hereinafter “DOCS van”) that was involved in a motor vehicle accident with a tractor trailer. Claimant alleges, among other things, that the accident occurred when the DOCS van passed in front of a tractor trailer while attempting to exit the New York State Thruway. Issue was joined, and defendant now moves the Court for an order granting summary judgment pursuant to Vehicle and Traffic Law § 1104. Claimant opposes the motion and cross moves the Court for an order granting summary judgment on the ground that defendant’s negligence was the sole cause of his injuries.

Vehicle and Traffic Law § 1104 permits “[t]he driver of an authorized emergency vehicle, when involved in an emergency operation,” to disregard certain rules and regulations of the road. An “authorized emergency vehicle” includes, among others, “[e]very . . . police vehicle or bicycle [and] correction vehicle” (Vehicle and Traffic Law § 101), and is considered to be engaged in an “emergency operation” when, in addition to other activities, it is “transporting prisoners” (Vehicle and Traffic Law § 114-b). In addition, “[e]xcept for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions . . . granted [pursuant to Vehicle and Traffic Law § 1104] shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp so that from any direction, under normal atmospheric conditions from a distance of five hundred feet from such vehicle, at least one red light will be displayed and visible” (Vehicle and Traffic Law § 1104 [c]).

While “Vehicle and Traffic Law § 1104 excuses the violation of certain traffic laws by authorized vehicles involved in an emergency operation, [i]t explicitly qualifies that privilege . . . by providing that the driver is not relieved of ‘the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others’” (Gonzalez v Iocovello, 93 NY2d 539, 551 [1999], quoting Vehicle and Traffic Law § 1104 [e]). The Court of Appeals has interpreted “ ‘Vehicle and Traffic Law § 1104 (e) [to] preclude[] the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness’ ” (Saarinen v Kerr, 84 NY2d 494, 497 [1994]).

Defendant argues that it is entitled to qualified immunity pursuant to Vehicle and Traffic Law § 1104 (e) and that its conduct on the occasion of the accident should be scrutinized in accordance with the reckless disregard standard thereunder. Defendant further argues that, since there is no proof before the Court that defendant operated the DOCS van with “reckless disregard for the safety of others,” the claim should be dismissed (Vehicle and Traffic Law § 1104 [e]). Claimant counters that defendant is not entitled to qualified immunity because, pursuant to Vehicle and Traffic Law § 1104 (c ), “a vehicle that is neither a police vehicle, []or a police bicycle must be equipped with, and actually operate, sirens and emergency lights while engaging in the emergency operation of transporting prisoners,” and there is no proof that the DOCS van was properly equipped in accordance with the statute. In support of his cross motion, claimant argues that he is entitled to judgment as a matter of law because defendant’s negligence was the sole proximate cause of his injuries.

In Church v City of New York (268 AD2d 382, 383 [2000]), the Appellate Division succinctly stated that
“Vehicle and Traffic Law § 1104 (a) applies to ‘[t]he driver of an authorized emergency vehicle, when involved in an emergency operation.’ Insofar as every police vehicle is an authorized emergency vehicle (Vehicle and Traffic Law §§ 101, 132), and the use of an authorized emergency vehicle to transport prisoners is an emergency operation (Vehicle and Traffic Law § 114-b), there being no limiting language in the statute bearing on either definition, the City was entitled to the heightened recklessness standard and the correlating instruction to the jury.”

Notably, the Court in Church (supra) conditioned entitlement to the heightened recklessness standard upon compliance with the definitions of “authorized emergency vehicle” and “emergency operation.” Here, it is undisputed that the DOCS van was an “authorized emergency vehicle” (Vehicle and Traffic Law § 101) engaged in an “emergency operation” (Vehicle and Traffic Law § 114-b) - the transportation of prisoners - and the Court must agree[1] (see Church supra at 382-383). Accordingly, as in Church (supra) defendant is entitled to the heightened recklessness standard, and claimant’s cross motion for summary judgment based upon defendant’s alleged negligence is denied.

Additionally, following a review of the applicable statute, the Court is unable to agree with claimant that the requirements of Vehicle and Traffic Law § 1104 (c) are conditions upon the grant of qualified immunity pursuant to subsection (e) of the statute. Rather, it is the Court’s determination that the requirements of subsection (c) are conditions upon the exemptions granted under subsection (b) of the statute. Nonetheless, even if the Court were to determine that the requirements of subsection (c) are conditions upon the grant of qualified immunity under subsection (e), defendant would still be entitled to the heightened recklessness standard since the DOCS van is a police vehicle, as that term is defined by Vehicle and Traffic Law § 132-a, and police vehicles are exempt from the requirements of subsection (c).

A police vehicle is defined as “[e]very vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special duties” (Vehicle and Traffic Law § 132-a). Defendant does not assert that it did not own the DOCS van at the time of the accident, nor is there any proof before the Court that would suggest defendant was not the owner. In fact, the police accident report, which is attached as an exhibit to defendant’s motion, reveals that the van was registered to “NYS Correctional.”

Moreover, precedent exists which supports a determination by this Court that the DOCS van is a police vehicle as that term is defined within the Vehicle and Traffic Law. In Klayman v City of New York (130 AD2d 551, 553 [1987], amended 142 AD2d 668 [1988]), the Appellate Division determined that a correction vehicle was a police vehicle. There, “a captain in the New York City Department of Corrections (hereinafter NYCDC), was driving an unmarked NYCDC automobile equipped with emergency warning devices from Manhattan to Rikers Island where an inmate disturbance was in progress” when the NYCDC vehicle was involved in a four-car collision. Thereafter, actions to recover damages for personal injuries and wrongful death were commenced and jointly tried (id. at 553-554). The jury apportioned liability and awarded damages (id. at 554). The Appellate Court reasoned, in part, that “[t]he NYCDC vehicle was a police vehicle [engaged] in [an] emergency operation” pursuant to Vehicle and Traffic Law §§ 114-b, 132-a and 101 (id.).

Similarly, in Heckstall v State of New York (Ct Cl, Patti, J., April 26, 2004 UID #2004-013-021, Motion No.66939) claimant, an inmate, was involved in a two-car accident while he was being transported in a bus “allegedly leased to the Defendant’s Department of Correctional Services” and driven by a correction officer (id.). Upon claimant’s application for permission to file a late claim, the Court considered “the effect of Vehicle and Traffic Law § 1104 with respect to whether the vehicle in which Claimant was riding [was] an ‘authorized emergency vehicle,’ including whether the bus was a ‘police vehicle’ [pursuant to Vehicle and Traffic Law § 132-a] which was involved in an ‘emergency operation’ [pursuant to Vehicle and Traffic Law § 114-b]” (id.). The Court concluded that “the subject bus was an authorized emergency vehicle, and that [the] [c]orrection [o]fficer . . . should be held accountable pursuant to the standards established in Vehicle and Traffic Law § 1104 (e)” (id.). Persuaded by defendant’s arguments, the Court reasoned that the correction officer driving the vehicle at the time of the accident “would be deemed a ‘peace officer’ [pursuant to Criminal Procedure Law § 2.10 (25)], and thus a ‘police officer’ [pursuant to Vehicle and Traffic Law § 132” (id.). “Hence [the Court reasoned] the bus would be deemed a ‘police vehicle’ [pursuant to Vehicle and Traffic Law § 132-a], if it were owned by the State” (id.).

Notwithstanding the Court’s finding that defendant is entitled to qualified immunity pursuant to Vehicle and Traffic Law § 1104, the Court concludes, after viewing the evidence in a “light most favorable to the nonmovant” (Raven Indus., Inc. v Irvine, 40 AD3d 1241, 1242 [2007]), that defendant has not met its prima facie burden entitling it to judgment as a matter of law. Specifically, defendant has failed to offer sufficient proof in admissible form to show that the driver of the DOCS van did not operate the vehicle at the time of the accident with “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]; see Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [2006]; Chiarini v County of Ulster, 9 AD3d 769, 769-770 [2004]).
“[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” (Saarinen v Kerr, supra at 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]).

In support of its motion, defendant offers the deposition testimony of claimant, Correction Officer Duncan Bey, a passenger in the DOCS van at the time of the accident, and Steven January, the operator of the tractor trailer. Upon review of the foregoing testimony, the Court finds that it is neither the type of affirmative proof that is necessary to meet defendant’s burden, nor is it sufficient to do so.

Bey was able to offer only limited testimony regarding the accident as, by his own admission, he had no knowledge of how the accident happened because he was unable to see outside of the van windows. For instance, Bey testified that he had no knowledge of whether the driver could see clearly out of the front window, whether the driver put the directional lights on before leaving the passing lane, or the speed of the van at the time of the accident. Nor does the testimony of January supply defendant with sufficient proof to meet its prima facie burden. In fact, January testified that he did not notice any directional signals on the van when it attempted to pass in front of his truck from the passing lane, and that the van was “very close” to his truck when it started to pull in front of his truck - “not more than a van length.” January further testified that the accident happened “within seconds” and that he
“could see that this van wanted to get off . . . on to that ramp and get off that exit but there wasn’t enough, in my opinion, real estate to do so, so she was forcing her way in. And so I put on my brakes hard at that point in the right lane. And she did get in front of my truck, but at that point we were just feet apart from each other.”

Additionally, claimant’s deposition testimony, without more, is not sufficient to meet defendant’s burden since the Court must take into consideration its self-serving nature. Moreover, to the extent that defendant argues that “claimant cannot establish that [the driver of the DOCS van] was reckless,” defendant cannot meet its initial burden as a summary judgment movant by “pointing to perceived deficiencies in [claimant’s] proof” (DeMilia v DeMico Brothers, Inc., 294 AD2d 264, 264 [2002]; see also Xu v 688 Sixth Ave. Realty Co., 19 AD3d 687 [2005]).

Accordingly, it is hereby

ORDERED that Motion No.73276 is denied; and it is further

ORDERED that Cross Motion No. 73508 is denied.


November 7, 2007
Albany, New York

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


Papers Considered
:
  1. Notice of Motion dated April 27, 2007;
  2. Affirmation in Support of Motion by Frederick H. McGown, III dated on April 27, 2007 with exhibits;
  3. Notice of Cross Motion dated May 23, 2007;
  4. Affidavit in Opposition by Curtis Harrington sworn to on May 23, 2007;
  5. Affirmation of Jonathan A. Moore, Esq. dated on May 23, 2007 with exhibits.

[1]. In discussing Vehicle and Traffic Law § 1104, the Court in Saarinen, (supra at 501, quoting Ferrer v Harris, 55 NY2d 285 [1982]), noted that “the common law has long recognized that an emergency situation which leaves little or no time for reflection ‘itself may be a significant circumstance which . . . should enter into the determination of the reasonableness of the choice of action pursued.’ ” The Court recognized that “emergency personnel must routinely make conscious choices that will necessarily escalate the over-all risk to the public at large in the service of an immediate, specific law enforcement or public safety goal” (id. at 502). This Court recognizes that the application of the definition of an “emergency operation” to include the transportation of prisoners under any circumstance may not always serve the intended purpose of Vehicle and Traffic Law § 1104. However, unless and until the Legislature amends Vehicle and Traffic Law § 114-b so as to narrow the circumstances when the transportation of prisoners constitutes an emergency operation, the Court must abide by the statute’s plain, and apparently broad, meaning (see In re Matter of M.B., 6 NY3d 437, 447 [2006]; Matter of Wiley v City of Watertown Fire Dept., 39 AD3d 975, 976-977 [2007], appeal dismissed _______________ NE2d _________ [2007]; Ryder v City of New York, 32 AD3d 836, 837 [2006], lain lv dismissed 8 NY3d 896 [2007]).