New York State Court of Claims

New York State Court of Claims

SLATE v. STATE OF NEW YORK, #2008-039-104, Claim No. 114213, Motion No. M-75506


Synopsis


Defendant’s motion for summary judgment on the basis that the driver of a tractor was not reckless pursuant to Vehicle and Traffic Law § 1103 (b) is granted and the claim is dismissed. Claimant seeks an award for damage to her vehicle when it was struck by “flying stones” cast from a tractor that was driven by a state employee while cutting grass alongside the road. Defendant offered sufficient prima facie proof through the driver’s affidavit to establish that he was actually engaged in work on the highway at the time of the accident and to establish that the driver did not act with reckless disregard for the safety of others on the occasion in question. In opposition, claimant does not seek liability based upon the manner in which the tractor was operated, but rather upon defendant’s alleged failure to properly equip the tractor with a guard. However, even if a proper guard was not installed, claimant has not offered any competent proof which suggests that the failure to properly install a guard constitutes reckless disregard, or that the driver operated the tractor “in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.”

Case Information

UID:
2008-039-104
Claimant(s):
BARBARA SLATE
Claimant short name:
SLATE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption 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):
114213
Motion number(s):
M-75506
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Barbara Slate, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 14, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant alleges that on July 12, 2007 her automobile sustained damage when it was struck by “flying stones” cast from a tractor that was driven by a state employee while cutting grass alongside the road. Issue was joined, and defendant now moves the Court for summary judgment on the basis that the driver’s conduct was not reckless pursuant to Vehicle and Traffic Law § 1103(b).

Vehicle and Traffic Law § 1103 (b) provides, in relevant part, that

“[u]nless specifically made applicable, the provisions of this title, except the provisions of sections eleven hundred ninety-two through eleven hundred ninety-six of this chapter, shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway nor shall the provisions of subsection (a) of section twelve hundred two apply to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation. The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.”
“In Riley v County of Broome (95 NY2d 455), the Court of Appeals held that Vehicle and Traffic Law § 1103 (b) excuses all vehicles, regardless of their classification, from the rules of the road when ‘actually engaged in work on a highway’ ” (Skolnick v Town of Hempstead, 278 AD2d 481, 482 [2000]). When this condition is met, “the standard to be applied to the conduct of the defendants is that liability will attach only if they act in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” (Farese v Town of Carmel, 296 AD2d 436, 437 [2002]; see also Green v Covington, 299 AD2d 636, 637-638 [2002]). It is well settled that “[o]n a motion for summary judgment, a movant is required to establish by competent and admissible evidence a prima facie entitlement to judgment” (Howard v J.A.J. Realty Enters., 283 AD2d 854, 855 [2001]). “If this burden is met, then the opponent to a motion for summary judgment has the affirmative burden of coming forward with competent, admissible evidence establishing the existence of a genuine triable issue of fact” (id.).

In support of its motion, defendant offers the affidavit of William Kastner. Kastner was the operator of the tractor on the day of the accident. With respect to the condition of the tractor, Kastner states, among other things, that “[t]he tractor is regularly serviced including preventative maintenance and replacement of blades, [and that] [i]t was serviced on May 11, 2007 and on July 9, 2007 when a ‘trash guard’ or a ‘rock guard’ was installed.” Kastner further provides that ‘[t]he tractor was in good and working order when [he] used it on July 12, 2007,” and he attaches copies of three work orders in support of his averments. With respect to the circumstances of the accident, Kastner states that he was “operating the mower at a slow rate of speed and did not take any exaggerated or excessive movements of the mower.” Nor did he, as he states, “observe any loose gravel or other hazards as [he] was mowing and [he] kept [his] eyes on the grass, roadway and fence as [he] was mowing this area.”

Claimant opposes the motion[2] and argues that “[i]t is not at all clear from the evidence that a proper rock guard was properly installed on the defendant’s vehicle at the time of the incident, as defendant claims.” In support of her position, claimant refers to copies of the three work orders that are attached as an exhibit to Kastner’s affidavit. Claimant contends, among other things, that the work orders reveal that a trash guard was installed on the tractor after her automobile sustained damages, and that a rock guard should have been installed in any event.

The Court concludes in the first instance that Vehicle and Traffic Law § 1103 (b) governs the imposition of liability in this matter. Defendant has offered sufficient prima facie proof through Kastner’s affidavit to establish that he was actually engaged in work on a highway at the time of the accident, as that term is defined under Vehicle and Traffic Law § 1103 (b). Claimant does not offer any proof to dispute this material fact.

Thus, the Court is left to determine whether a genuine issue of material fact exists with respect to whether defendant acted with reckless disregard for the safety of others pursuant to Vehicle and Traffic Law § 1103 (b). In this regard, the Court concludes that defendant has offered sufficient prima facie proof to establish that it did not act with reckless disregard for the safety of others on the occasion in question. Kastner states in his supporting affidavit that he operated the tractor at a “slow rate of speed,” that he did not make any “exaggerated or excessive movements,”and that he “did not observe any loose gravel or other hazards as [he] was mowing and [he] kept [his] eyes on the grass, roadway and fence as [he] was mowing [the] area.” Kastner further attests to the “good and working order” of the tractor on the day of the accident, as well as the installation of a “ ‘trash guard’ or a ‘rock guard’ ” on July 9, 2007, three days prior to the accident.

The Court is unable to conclude, however, that claimant has offered sufficient proof in opposition to the motion to establish a material issue of fact as to whether defendant acted with reckless disregard for the safety of others. Unlike many cases involving the interpretation of Vehicle and Traffic Law § 1103 (b), here, claimant does not seek liability based upon the manner in which the tractor was operated (see Farese v Town of Carmel, supra; Riley v County of Broome, supra; Wenger v Broome County Government, 296 AD2d 642 [2002]; and Skolnick v Town of Hempstead, supra. In fact, claimant plainly states in her opposing affidavit that her “claim is not based on [the] operator of the vehicle being reckless.” Rather, the basis of liability appears to be defendant’s alleged failure to properly equip the tractor with a guard, although Kastner’s affidavit indicates a guard was installed on July 9, 2007, prior to the accident. However, even if a proper guard was not installed on the tractor at the time that claimant’s automobile sustained damage, claimant has not offered any competent proof which suggests that the failure to properly install a guard constitutes reckless disregard, or that Kastner operated the tractor “in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” (Farese v Town of Carmel, supra at 437).

Accordingly, it is hereby ordered that M-75506 is granted and the claim is dismissed.


January 14, 2009
Albany, New York

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


Papers Considered
:
  1. Notice of Motion dated September 8, 2008;
  2. Affirmation in Support of Defendant’s Motion For Summary Judgment by Belinda A. Wagner, AAG, dated September 8, 2008 with exhibits;
  3. Affidavit of William Kastner, sworn to on September 8, 2008 with exhibit;
  4. Response to Defendant’s Motion for Summary Judgment dated September 12, 2008; and
  5. Reply Affirmation by Belinda A. Wagner, AAG, dated September 15, 2008.


[2]. The Court has considered claimant’s unsworn affidavit offered in opposition to the motion even though it was not presented in admissible form, and claimant did not provide the Court with any excuse for her failure to submit the affidavit in admissible form (see Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]; see also Barbour v Knecht, 296 AD2d 218, 227 [2002]).