New York State Court of Claims

New York State Court of Claims

PETTIT v. THE STATE OF NEW YORK, #2008-009-190, Claim No. 103630


Synopsis


The State was found 100% liable for personal injuries suffered by claimant in an automobile accident with a State Police patrol car. The Court found that the State Trooper operated his vehicle with reckless disregard for the safety of others.

Case Information

UID:
2008-009-190
Claimant(s):
CINDY L. PETTIT and CHARLES E. PETTIT, JR.
Claimant short name:
PETTIT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103630
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WEGERSKI LAW FIRM
BY: John P. Wegerski, Esq.,
Of Counsel. CARL J. COCHI, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 28, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this claim, claimant Cindy L. Pettit[1], seeks damages for personal injuries suffered by her in an automobile accident with a State Police patrol car operated by State Trooper Shawn M. Dibble on October 7, 1999. The trial of this claim was bifurcated, and this decision therefore addresses the issue of liability only.


Much of the testimony taken at trial was uncontradicted, and is summarized as follows. On October 7, 1999, at approximately 8:10 p.m., a New York State Police patrol vehicle operated by Trooper Shawn M. Dibble collided with an automobile driven by Cindy L. Pettit at the intersection of New York State Route 11 and Central Drive in the Village of Central Square, New York.

Central Drive intersects with Route 11 to form a “T” intersection. A stop sign controls traffic on Central Drive at this intersection, with traffic on Route 11 having the right-of-way.

Claimant, who was proceeding on Central Drive, came to a stop at the intersection of Route 11and Central Drive, and then pulled out from Central Drive onto Route 11. She was immediately struck by a State Police vehicle operated by Trooper Dibble, who was proceeding southbound on State Route 11 while responding to a 911 dispatch call.

Trooper Dibble testified that he had been a New York State Trooper since 1997, and had been stationed at the Hastings Barracks since September, 1998, where he was assigned to the Road Patrol at the time this accident occurred. Trooper Dibble testified that during the time he had been stationed at Hastings, he had become very familiar with the surrounding area, including the Village of Central Square. He was aware that Route 11, the main street passing through the Village of Central Square, consisted of two lanes, with a no passing zone and a 30 miles per hour speed limit. He confirmed that he was familiar with all intersections within the village, including the “T” intersection at Central Drive and Route 11. He was also aware that, in addition to the stop sign at the intersection of Central Drive and Route 11, there was a “Children at Play” sign at that location, and that there was a residential housing development in the immediate vicinity.

Trooper Dibble testified that on the evening of October 7, 1999, he was on duty when he received a 911 dispatch at approximately 8:00 p.m. The call came from the Oswego County Sheriff’s 911 Center, which advised that an Electronic Intrusion Device (EID), or burglar alarm, had gone off at Winter Harbor Marina in Brewerton, New York. Trooper Dibble testified that he had previously responded to approximately 20 EID calls from this Marina in the preceding year, and each time these calls had been false alarms. He had found no evidence of criminal activity at the Marina on any of these prior false alarms.

Winter Harbor Marina is within the jurisdiction of both the Oswego County Sheriff’s Department and the New York State Police. Since the call was received from the 911 Center operated by the Oswego County Sheriff, Trooper Dibble testified that it was his belief that he was the closest car available to respond, and in any event, he would always respond to burglar alarms. The Hasting’s State Police Barracks is located north of the Village of Central Square on Route 11. Trooper Dibble testified that he left the barracks and proceeded south on Route 11 to respond to the call. Initially, he activated both his overhead lights and siren. The posted speed limit on Route 11 decreases from 55 miles per hour to 45 miles per hour as one approaches the Village from the north, and then further decreases to 30 miles per hour within the Village limits. Trooper Dibble testified that as he proceeded into the Village, his overhead lights were on and his siren was activated.

Trooper Dibble testified that he then stopped at the four-way intersection of Route 49 and Route 11, but that he did not stop or slow down for any of the several “T” intersections within the Village limits, including the “T” intersection with Central Drive. Trooper Dibble testified, however, that after proceeding from the four-way intersection of Route 49 and Route 11, he deactivated his siren, but kept his overhead flashing lights operating. He testified that pursuant to the State Police Field Manual, he had discretion in determining whether to activate his siren, and that he made a conscious decision to deactivate the siren at that time.

According to his testimony, Trooper Dibble believed that he was proceeding at a speed of approximately 60 miles per hour through the Village as he approached Central Drive. However, he then conceded, based upon a subsequent State Police investigation, that he was in fact traveling at a speed of 83 miles per hour through the Village at the time of the accident.

Trooper Dibble also testified that there is a depression in Route 11, north of Central Drive, which obstructs vision of vehicles at the intersection with Central Drive. Additionally, Trooper Dibble testified that a large pickup truck had pulled over to the side of the southbound lane of Route 11, further obstructing his view of the intersection.

Trooper Dibble testified that as he came out of the depression on Route 11, just north of the Central Drive intersection, he first observed the Pettit vehicle. He immediately slammed on his brakes and turned his car to the left in an attempt to avoid a collision, but he was unable to stop or swerve in time. After the vehicles collided, Trooper Dibble’s vehicle swerved further to the left and crashed into a house located on the east side of Route 11.

Claimant Cindy L. Pettit testified that she was very familiar with Central Drive and its intersection with Route 11, since her residence was located in a development in which the only access to Route 11 was by way of Central Drive. She testified that she had driven through this intersection at least twice a day for the past 18 years, and that she was well aware that the speed limit on both Central Drive and Route 11 in this vicinity was posted at 30 miles per hour.

Claimant testified that shortly after she left her residence on the evening of October 7, 1999, she was proceeding towards Central Drive when she heard a siren in the distance coming from the north on Route 11. Based on the sound, the siren came from a vehicle which was proceeding south on Route 11. She testified that she never saw the vehicle which emitted this particular siren, but from the sound that she heard, the vehicle proceeded out of distance before she reached the intersection of Central Drive and Route 11. Claimant testified that she then came to a complete stop at the intersection of Central Drive and Route 11, looked both ways a couple of times, and as soon as she proceeded into the intersection the collision occurred. Claimant testified that she had no idea what happened except that there was a flash of light, a smash, and the car started spinning. She testified that she never heard a siren or any audible warning from the vehicle which collided with her.

Claimant also testified that she was familiar with the depression in Route 11, just north of Central Drive. Based on her experience, claimant testified that if you do not observe a vehicle at the top of the depression, a driver has sufficient time to safely pull out onto Route 11. She testified that she did not observe any vehicle at the top of the depression when she began to make her turn onto Route 11.

Suzanne Edee, an eyewitness to this accident, also testified at trial. Ms. Edee was also very familiar with the intersection of Central Drive and Route 11, as she traveled that route on a daily basis. Ms. Edee testified that her vehicle was in front of claimant’s vehicle on Central Drive at the Route 11 intersection just prior to the accident. Ms. Edee was also familiar with the depression in Route 11 north of its intersection with Central Drive, and also testified that typically, when vehicles are in that dip, or just entering the dip, a driver can safely turn onto Route 11 from Central Drive.

Ms. Edee testified that on the night of the accident, she was stopped at the intersection of Central Drive and Route 11, preparing to make a left-hand turn onto Route 11 to proceed north. While stopped at the intersection, she observed a white police vehicle, with red lights and siren activated, drive past her proceeding southbound on Route 11.[2] She identified this police vehicle as a sheriff’s vehicle. She then observed a second vehicle, with flashing red lights, to the north on Route 11, which she estimated to be approximately 2/3 of a mile from Central Drive. Although its red flashing lights were activated, Ms. Edee testified that the vehicle did not have its siren operating. Based on the distance of this vehicle from the intersection, Ms. Edee testified that, in her opinion, she had sufficient time to make her turn onto Route 11, which she proceeded to do.

Ms. Edee testified that after making her turn, she had only proceeded two or three car lengths when the collision occurred between the vehicles operated by Trooper Dibble and claimant. She testified that Trooper Dibble’s vehicle never slowed down, and never emitted an audible siren or warning of any kind as it approached the intersection with Central Drive.

Testimony from Thomas Pirro, the owner of Winter Harbor Marina, confirmed that there had been many false alarms at his Marina in the year prior to this incident, and that each time, a police officer responded. He also testified that, at the time of trial, he still had the same system and that he continued to experience false alarms.

Harold Kyle, who was residing in a home on the east side of Route 11 near the Central Drive intersection, testified that although he did not witness the accident, he observed a police car approaching his house immediately after he heard the crash. Mr. Kyle confirmed that this vehicle was a New York State Police car and that its overhead flashing lights were on, but the siren was not. State Police Investigator Dennis Cooper conducted an accident reconstruction for the State Police, prepared a “Collision Reconstruction Findings Report” (Exhibit 8), and testified at trial. Based on his investigation, Investigator Cooper determined that the speed of Trooper Dibble’s vehicle, as it approached the Central Drive intersection, was 83 miles per hour.

Investigator Cooper also examined the skid marks left by the State Police vehicle. The longest skid mark was 118 feet, with the average distance being 103 feet. Based on typical reaction time, Investigator Cooper estimated that Trooper Dibble was approximately 300 feet away from the intersection when he first observed claimant’s vehicle. He calculated that Trooper Dibble had reduced his speed from 83 miles per hour to 69 miles per hour at the time of impact.

Investigator Cooper also determined that claimant’s vehicle was in the southbound lane of Route 11 at the time of impact, and that she was virtually standing still, as she was proceeding well under one mile per hour at the time of the crash.

Investigator Cooper also examined the depression in the roadway of Route 11 north of this intersection, and determined that a motorist entering Route 11 from Central Drive would have “limited visibility or opportunity” to observe any oncoming vehicles and that this depression was therefore of “major significance” in this collision.

Following this accident, and the resulting investigation conducted by Investigator Cooper, an internal investigation (Exhibit 4) was undertaken by the State Police. Following this investigation, Trooper Dibble received a “Letter of Censure” for his conduct (Exhibit 4, p. 13).

Thomas C. Onions, a retired Amherst, New York, police officer, was qualified by the Court as an expert witness and testified on behalf of the claimants. Based on his review of the report made by Investigator Cooper, as well as his own independent investigation, Mr. Onions concurred with Investigator Cooper that Trooper Dibble’s vehicle was traveling at approximately 83 miles per hour through the Village of Central Square when Trooper Dibble first noticed claimant’s vehicle in front of him. He also agreed with Investigator Cooper that at impact, Trooper Dibble’s vehicle was traveling at approximately 69 miles per hour.

Mr. Onions concluded, based upon his investigation and accident reconstruction, that by the time Trooper Dibble first observed claimant’s vehicle, the collision was unavoidable since Trooper Dibble had insufficient time and distance to either stop and/or swerve in either direction to avoid the Pettit vehicle.

Mr. Onions further testified that Trooper Dibble had deviated from generally accepted police practices and procedures, as well as standards set forth in the New York State Police Manual, when he responded to the burglar alarm at Winter Harbor Marina. Specifically, Mr. Onions testified that Trooper Dibble violated generally accepted police practices and procedures when he deactivated his siren, while traveling at a speed of 83 miles per hour in a highly populated area on a road with a posted speed limit of 30 miles per hour.

Reginald Allard, Jr., testified as an expert for the defendant on the issue of police procedures and emergency operations of police vehicles. Under voir dire, however, Mr. Allard acknowledged that he had never been a police officer in New York State, had never received any training in New York State Police practices and procedures, had never taught police procedures in the State, and had never utilized the New York State Police Field Manual in any of his training courses.

Although Mr. Allard was nevertheless allowed to testify, his conclusions (that Trooper Dibble’s speed under these circumstances was reasonable, that Trooper Dibble was not required to have his siren on, and that his operation of his vehicle complied with the New York State Police Manual) have been afforded little weight by this Court.
ANALYSIS
The parties agree that Trooper Dibble’s actions must be viewed under the “reckless disregard” standard set forth in Vehicle and Traffic Law § 1104. Section 1104 relieves the operator of an authorized emergency vehicle (including police vehicles) from the duty to obey otherwise applicable rules of the road, and therefore from liability for harm caused to others, unless the operator acted with “reckless disregard” for the safety of others. “Reckless disregard” has been defined as knowingly committing “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 that said act was committed] with conscious indifference to the outcome” (Sarrinen v Kerr, 84 NY2d 494, 501, quoting Prosser and Keeton, Torts, § 34 at 213 [5th ed]).

In this particular matter, the evidence and testimony have established, without contradiction, that Trooper Dibble was operating his vehicle at 83 miles per hour through the Village of Central Square, where the posted speed limit was 30 miles per hour, when this accident occurred. The evidence has also established that Trooper Dibble was very familiar with the area, and he was aware not only that the speed limit was 30 miles per hour, but that there were also many residences and businesses in this vicinity, making it likely that he could encounter vehicle and/or pedestrian traffic as he proceeded through the village. Trooper Dibble was also aware of the depression in Route 11, just north of Central Drive, and that this depression prevented motorists, stopped at the intersection of Central Drive and Route 11, from viewing oncoming southbound vehicles for a period of time. In addition to proceeding at this extremely high rate of speed through the Village, Trooper Dibble also consciously deactivated his siren (although leaving his overhead flashing lights operating) as he entered the Village. Furthermore, Trooper Dibble acknowledged that he was responding to an emergency call from the same location in which he had previously responded to approximately 20 such emergency calls within the past year, all of which proved to be false alarms. Based on this history, Trooper Dibble should have reasonably expected that this particular call, even if not a false alarm, did not involve a threat of life or personal safety.

Based upon the above findings, this Court determines that Trooper Dibble was proceeding at a highly unreasonable speed through a residential area and his conscious decision to deactivate his siren was unjustified. Simply stated, Trooper Dibble’s response to this particular call, taking into consideration that this trooper had responded to approximately 20 false alarms at the same location in the past year, does not justify what this Court finds to be reckless decisions and actions made and taken by him. These actions, with particular reference to his excessive speed and the deactivation of his siren, amount to much more than a momentary lapse of judgment, but rather evidence a total reckless disregard for the safety of any others on the road at the time.[3] The defendant, therefore, must be found accountable for the injuries suffered by claimant in this accident.

The Court must therefore consider the comparative negligence, if any, of claimant Cindy L. Pettit, in this accident. Testimony established, again without contradiction, that claimant had come to a complete stop at the intersection of Central Drive with Route 11, and that before making her turn onto Route 11, claimant had carefully looked for oncoming traffic. Testimony also established that this accident occurred almost immediately after claimant entered the intersection and made her turn. The Court therefore finds that claimant did not have any reasonable opportunity whatsoever to yield the right-of-way to Trooper Dibble, and that she was not responsible in any way for this accident. Accordingly, the Court finds that no comparative negligence should be assessed against claimant, and, therefore, the counterclaim asserted by the defendant against claimant must fail.

The Court therefore finds that the defendant State of New York is 100% responsible for the injuries suffered by claimant in this accident. The Chief Clerk of the Court of Claims is therefore directed to enter judgment on the issue of liability in accordance with this decision. A trial on the issue of damages will be scheduled as soon as practicable.

Any motions not heretofore addressed are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


October 28, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. The claim of Charles E. Pettit, Jr., is derivative in nature. Therefore, all references to claimant, unless otherwise specified, are to Cindy L. Pettit.
[2]. Although it has no bearing on the issue of liability, it is apparent that the Oswego County Sheriff’s Department had responded to the call prior to Trooper Dibble, and that the siren which claimant heard prior to the accident emanated from this Sheriff’s vehicle, which proceeded past the intersection prior to claimant arriving there. There was no evidence at trial to suggest that Trooper Dibble was aware that the Oswego County Sheriff had responded to this call.
[3]. The Court notes that it has reached its decision based solely on the actions of Trooper Dibble, as established at trial. Although claimant’s expert, Mr. Onions, offered testimony that, in his opinion, Trooper Dibble had violated certain provisions of the State Police Field Manual in the operation of his vehicle, it was not necessary, in light of his egregious conduct, for this Court to make any such determination. Furthermore, even though the results of the internal investigation were received into evidence (Exhibit 4), neither the Letter of Censure issued to Trooper Dibble (Exhibit 4, p. 13) nor the findings of this investigation were relied upon by the Court in this decision.