In this claim, claimant Cindy L. Pettit
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.
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
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
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.
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
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.