New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-044-011, Claim No. 107241


Court dismissed claim for injuries incurred when claimant was hit by a car while being arrested. Claimant had been involved in a domestic disturbance, and was standing by the road with a long gun and a bottle of wine in his hand. A Trooper in his vehicle spotted him, and told him to put the gun down and lie down. Instead, claimant took several steps toward the Trooper with the gun, and then eventually laid down partially in the road. Immediately thereafter, claimant was hit by an oncoming vehicle. The Court found that the Trooper did not behave negligently under the circumstances.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] seeks to recover damages from defendant State of New York (defendant) for injuries incurred during the course of a State Trooper’s investigation of a domestic disturbance. Trial of the matter was bifurcated and was held in the Binghamton District on April 22 and 23, 2008. This decision addresses only the issue of liability.

Claimant’s injury was incurred when he was hit by a moving automobile on County Route 87 (Route 87) after dark on the date of November 1, 2001. It is undisputed that claimant had been drinking alcoholic beverages throughout the course of the day, was carrying a semi-automatic rifle as he was walking along the side of the road after an argument with his wife, that a State Trooper (Trooper Thomas Doran)[2] pulled up in his vehicle and told him to drop the gun, and that claimant was lying on or partially on the road immediately prior to being hit (although he had gotten up and tried to avoid the vehicle when he saw it approaching him). Claimant Kristal Johnson had called the police due to claimant’s conduct, and the Trooper’s arrival was in response to that call. However, testimony regarding the details of the occurrence differed markedly.

Claimant testified that he helped his brother install flooring on November 1, 2001. He left the house to help his brother at 10:00 a.m. or 11:00 a.m., and returned home between 4:00 p.m. and 5:00 p.m. During the course of the day, he drank somewhere between four and six beers, but had nothing to eat. When he returned home, it was just starting to get dark. He entered the kitchen, where Kristal Johnson was preparing dinner for those present, which included claimants, their two children, and Kristal Johnson’s sister’s three children. Claimant and his wife then became involved in a lengthy argument. Eventually, Kristal Johnson locked claimant out of the house. He spent 10 to 15 minutes trying to get back in, banging on the door with his fist and cutting his hand in the process. Blood was left on the door frame and the kitchen floor. Eventually, his mother arrived at their house, and he followed her in the door. He got his coat and boots, intending to go into the woods around the house to “cool off.”[3] He also took a bottle of Southern Comfort, although he denied taking a bottle of wine. He said, however, that he did not consume any alcoholic beverages after he arrived home that evening.

Claimant testified that he went to the garage, which was detached from the house, to get his rifle, for protection from “rabid animals.” He loaded the rifle in the garage. He said he entered and left the garage via a door on the opposite side of the garage from the house, so it would not have been possible to see from the house that he was carrying a gun.

Route 87 in the vicinity of claimant’s home is a two-lane road with gravel shoulders approximately a foot wide sloping down to drainage ditches on each side, a double yellow center line and white fog lines on each side, which runs generally in a north-south direction. Claimant testified that the speed limit on the road is 55 miles per hour, although cars generally travel faster than that. He said that there are no streetlights in the vicinity of his property, and no lights on any nearby houses which illuminate the road.

When claimant left the garage, he walked south away from his house, along the east side of Route 87. He saw his neighbor, William Kellogg, across the road and on the other side of the drainage ditch, and crossed to speak with him. He said it was dark by this time. Claimant testified that as soon as he reached Kellogg, a distance of about 15 to 20 feet west of the ditch, a State Trooper pulled up in his vehicle. Claimant said that the Trooper was driving north, so that claimant’s location some distance away from the west side of the road was also across an open lane of traffic from the Trooper. Claimant testified on direct examination that he set the gun down as soon as the Trooper pulled up, and on redirect said that he simply “bent over and set it on the ground.” Claimant’s sworn statement taken after the accident[4] while claimant was in the ambulance, states that claimant “just threw the gun into the ditch” after being told by the Trooper to drop it. Claimant testified at trial that the Trooper handcuffed him and “laid [him] in the road,” with his feet in the dirt and part of his body in the southbound lane. He did not see any flashing emergency lights or hazard lights in use on the Trooper’s vehicle. Claimant did not recall the Trooper shining a spotlight on him and Kellogg.

Claimant stated that the Trooper went to get something out of his trunk after claimant was lying in the road, and he (claimant) saw a vehicle approaching from the north, having already rounded the curve approximately 500 to 600 feet away. Claimant said he rolled over, got up, and started to jump toward the ditch. However, the car hit him at the left hip, back, and lower part of his body, causing him severe injuries. Claimant stated that his memory has been affected by the medications that he currently takes for the residual effects of his injuries. He said he has difficulty remembering, and that it is a slow process.

On cross-examination, claimant said it did occur to him that his wife might call the police. He also acknowledged that the Trooper may have ordered him to put the gun down. He stated he did not know how he ended up on the edge of the southbound lane, or how he got on the ground. He specifically denied having a bottle of wine in his hand when the Trooper pulled up.

Kristal Johnson also testified. She said that when her husband arrived home that night, she could tell that he had been drinking, but that he was “not highly intoxicated.” She acknowledged that they argued and she locked him out of the house, saying that she “felt better with him outside.” She noticed that he had a cut on his knuckles from banging on the back door. She said he was acting irrationally. After his mother arrived, and claimant got his jacket, she saw him leave the house and did not see him again until after the accident. She did not know where he was going, or that he had taken the rifle. She said sometimes he would go into the woods or to see friends when he needed to “cool off.”

Kristal Johnson acknowledged that she called law enforcement officials after claimant left the house, although she did not recall specifically what she said. She did not tell them that he had a gun, because she was not aware of it. She said that she did “want them to do something.” She became aware that claimant was hit by a car after her mother heard it on a scanner. She also said they always had Arbor Mist wine in the house, because her father worked at the winery, and that Arbor Mist always came in a tall, frosted white bottle. She did not see claimant take either the wine or the Southern Comfort from the house.

William Kellogg, the Johnsons’ neighbor, testified. He said that he and his wife had never socialized with claimants. On the night of the accident, he had returned a tractor to a neighbor and was walking back to his house at about 6:00 p.m., when he saw claimant along the road. He said they each identified themselves verbally, as it was dark. He said they started walking toward each other, and met at the edge of the west side of the road. He said claimant was on the shoulder, and he was on the other side of the ditch, approximately three to four feet away. He did notice that claimant was carrying a gun in his right hand, and had a bottle in his left hand.

Kellogg then noticed the approach of the Trooper’s vehicle. The vehicle’s headlights were on, but there were no emergency lights. The vehicle stopped, and the officer told claimant to put his gun down and get down on the ground.[5] He said it twice, in rapid succession. The Trooper had a spotlight shining on claimant, and had his gun drawn. Kellogg said claimant moved “very slowly” in response to the Trooper’s commands. Kellogg didn’t remember exactly where claimant placed the gun, but said he (claimant) put it down slowly, and then laid down, with his legs on the shoulder and his torso in the roadway. Kellogg said claimant was not handcuffed. Kellogg said he then sensed that a car was coming. He said the Trooper was still at his vehicle, and started to yell, when claimant got up to move out of the way and then got hit.[6] Kellogg said it “all seemed to happen at once.” He said the vehicle did not seem to be traveling at an excessive speed.

Albert Quackenbush, the driver of the vehicle, testified as well. At the time of the accident, he was 72 years old. He had his glasses on, and said his vehicle was in excellent condition. He was traveling south on Route 87, which he did routinely. He said he came around a curve approximately 300 yards before reaching the vehicle. He said he had slowed down for the curve. He saw the Trooper’s headlights in the northbound lane from “probably 150 feet away.” He said he didn’t notice anything in his lane of traffic when he first came around the curve. He did eventually notice something in his lane, but thought it was a round bale of hay, at which point he braked heavily. He was not certain when he realized the object in the road was a person. He said he did not actually see claimant lying in the road, but saw him as he (claimant) tried to move out of the way. Quackenbush said when he saw the Trooper’s vehicle, he moved over to the shoulder to avoid anything in the road. He said he never observed any emergency lights on the Trooper’s vehicle, but did see the spotlight shining across the road. Quackenbush did not receive a traffic citation for the incident.

Sergeant Gregory Fonseca testified on claimants’ behalf. At the time, Fonseca was a sergeant with the Steuben County Sheriff’s Department. He testified that he became aware of a request for police response to an alleged domestic incident at claimants’ residence shortly before 6:00 p.m. on the night of November 1, 2001. Because it was a domestic dispute, policy required two officers to respond, if possible. Fonseca indicated that Trooper Doran responded. Because Fonseca was closer to the scene than another State Trooper, he advised that he would respond as well.

Fonseca exchanged information with Doran about their respective locations. He was approximately one mile farther away from the scene than Doran. Fonseca said he used his emergency lights until he got close to the scene and on to Route 87, when he turned them off. He said that it was standard practice and training at all the law enforcement agencies at which he had worked to not approach the scene of a domestic disturbance with emergency lights or sirens on. He said he lost radio contact with Doran for approximately one minute, and then heard Doran call out a “signal 30” over the radio, which he stated meant that the Trooper had encountered a man with a gun. At that point, Fonseca was traveling at a low rate of speed, using his spotlight to try to find the address he had been given. He was familiar with claimants’ residence as the scene of prior domestic disturbances. He had also advised Doran that there had been prior domestic disturbances at that residence, and that alcohol had been involved in those disturbances.

When Fonseca heard the signal 30 call, he immediately put on his emergency lights and accelerated to the scene. Before he arrived at the scene, he heard Trooper Doran call for an ambulance. He said he arrived in less than a minute after the signal 30. He did not recall if Trooper Doran’s emergency lights were on when he approached the scene, as his concern was for Trooper Doran’s safety. When he arrived at the scene, he found Doran in the ditch on the west side of the roadway kneeling near a weapon, which was located either in or partially in the ditch. He said members of an Emergency Services Squad were already on the scene attending to claimant. Fonseca said claimant was lying in the roadway, but Fonseca was not certain if that was where claimant had landed, or whether he had been moved there. Claimant was not handcuffed.

Trooper Robert Frost, the accident reconstructionist, also testified regarding his observations of the accident. He viewed the scene the next day. His report states, in pertinent part:
Hill crest approx 258 feet north of impact area Roadway drops approx 7 feet to impact area. Tpr Doran stopped in northbound lane with door opened confronting pedestrian who was intoxicated and armed with rifle on west shoulder. Vehicle cresting hill moved onto west shoulder to avoid trooper. Operator did not see pedestrian.[7]

Michael P. O’Rourke also testified on claimants’ behalf. At the time, O’Rourke was a uniformed sergeant. His recollection was that both he and Doran were at the station when Kristal Johnson called, and that Doran took the call. Doran left the station, and O’Rourke was advised that Doran was responding to a domestic dispute where the husband was banging on complainant’s door. O’Rourke was not aware that Fonseca was also responding to the call to assist Doran. Shortly thereafter, Doran called in the signal 30, and then requested an ambulance. O’Rourke then responded to the scene. He did not see claimant’s injury, but did believe that claimant was handcuffed by that time. O’Rourke testified that he recalled thinking that claimant was intoxicated, but he had no specific recollection why he thought that.

Trooper Thomas Doran testified. He stated that, on the date of the incident in question, he received information from the dispatcher that there was an alleged domestic disturbance in progress. He responded, as did Fonseca. While en route, the dispatcher advised him that the male subject had left the residence, after pounding on the back door and bloodying his knuckles. Doran was given a description of the clothes claimant was wearing. Doran confirmed that Fonseca contacted him by radio and indicated that there had been previous domestic disturbances at that address. Doran did not recall being told that claimant had a gun, prior to encountering him.

Doran said that when he first encountered claimant, he had his headlights and a handheld spotlight turned on. He did not have emergency lights on, as it was standard practice not to have them on when getting close to the scene of a domestic disturbance. He saw two individuals standing in the grass off the shoulder of the road. He estimated that they were five or six paces from the road. He said it was dark, with no streetlights. His observation was that one individual was facing south, the other - claimant - was facing north, and fit the description of the person Doran was seeking, both physically and in terms of his attire. Claimant appeared to be holding a bottle of wine (in a tall, frosted white bottle) in his right hand, and the barrel of a long gun in his left. Doran was not certain how far away he was when he made these observations, but estimated the distance as about 25 feet. He said he immediately stopped his vehicle when he saw them, drew his sidearm, and told claimant to drop the gun. He said that the only light on claimant was the spotlight. He said that not only did he not have time to turn on the overhead lights, but he did not consider doing so because he did not want to illuminate himself more than necessary when confronting an individual carrying a gun.

Doran said it appeared that claimant was trying to hide the gun. Doran told claimant more than once to drop the gun, in a very loud voice. Doran said that he was afraid for his safety because claimant matched the description of the individual involved in the domestic incident, although claimant was not threatening him directly. Doran said claimant then put his right hand on the gun in the area of the trigger, so that his hands were in a position to be able to fire the gun, and took three or four steps toward the Trooper. After the three or four steps taken while Doran was yelling at him to put the gun down, claimant dropped the gun in the ditch and laid down pursuant to Doran’s instructions. At this point, the upper part of claimant’s body was in the road, and his feet were in the ditch. Doran got out of his vehicle. He said he did not consider turning on the emergency lights, because he was keeping an eye on claimant, as the gun was still within claimant’s reach. He moved toward claimant to secure the gun and saw the oncoming vehicle. He said he yelled to claimant to get out of the road, and simultaneously moved toward the back of his vehicle to avoid the oncoming car. Doran said Quackenbush’s vehicle slowed significantly as it approached. When the car impacted claimant, claimant was located on the gravel part of the shoulder. After claimant was hit, Doran turned on his emergency lights, checked on claimant, radioed for an ambulance, and located and unloaded the gun.

In explaining why he did not turn on his emergency lights as soon as he stopped, Doran said that those lights would have illuminated him, giving away his precise location. He said that when confronting someone in possession of a firearm, turning on the emergency lights would not be an appropriate tactical decision, and in the rapidly developing situation, he did not have the opportunity to turn them on and remain safe.

David Betts, a retired police lieutenant with 20 years of experience, testified as claimant’s expert. According to Betts, Doran should have communicated with his backup (Fonseca) when he saw claimant and Kellogg by the side of the road, to determine how long before backup arrived. Betts said Doran should have slowed his response in order to develop a plan for the situation, and he should have illuminated Kellogg and claimant by turning his vehicle toward them, turning on his emergency lights, takedown lights and high beams,“taking control of the situation.” Betts also said that Doran should have stopped the vehicle farther away from claimant and Kellogg. Betts suggested that if the vehicle had been angled in the road, it would have been in both lanes, with the desired result that motorists would be alerted that a situation was developing, and slow down.

Betts stated that defendant, through Trooper Doran, owed claimant a duty of care in this situation. He stated that the duty consisted of making sure that claimant was protected, and not injured. Betts stated that claimant was in custody, because he was not free to leave, and that Doran had a duty to make sure claimant was not struck by an oncoming vehicle. Betts said that if Doran had “protect[ed] the scene a little better, [the accident] probably wouldn’t have happened.”

On cross-examination, Betts acknowledged that his conclusions were reached after numerous hours of document review and an hour at the scene, which was considerably more time than afforded Doran, and that those conclusions were not formed while in the presence of someone with a gun and a bottle in his hands who was suspected of having been recently involved in a domestic disturbance. Betts agreed that police officers are not expected to be infallible.

At the close of claimant’s case, defendant moved to dismiss for failure to establish a prima facie case. The Court reserved decision on the motion.

In support of its case, defendant offered the testimony of Reginald Allard, Jr., as its expert witness. Claimant objected to Allard being accepted as an expert on various grounds. The Court reserved decision on claimant’s motion to preclude the testimony and allowed Allard’s testimony pending a determination on the objection. Allard stated that he was asked by defendant’s counsel to determine whether Doran conducted himself in accord with the provisions of the New York State Police Manual, and the applicable State statutes and regulations.

To establish the reliability of an expert’s opinion, the party offering that opinion must demonstrate that the expert possesses the requisite skill, training, education, knowledge or experience to render the opinion (Matott v Ward, 48 NY2d 455 [1979]; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296 [2000]).

While Allard’s resume [Defendant’s Exhibit C] indicates that Allard was undoubtedly an experienced police officer in the State of Connecticut with extensive experience in police “use of force” matters, neither the record nor his testimony supported a determination that he possessed the necessary “skill, training, education, knowledge or experience to render [an] opinion” (id.) regarding whether Doran conducted himself in accord with the pertinent regulations and requirements under the laws of this State. Accordingly, claimant’s motion to strike Allard’s testimony is granted, and the Court has given it no weight in its determination.

Initially, the Court finds that Trooper Doran did not specifically order claimant to lie down in the road. Rather, the testimony of both Doran and Kellogg, a disinterested witness, was that Doran ordered claimant to “drop the gun” and “get down.” Rather than complying with those commands, claimant took at least two, and possibly several, steps forward, before discarding the gun and laying down with his body partially on the pavement. Claimant’s testimony to the contrary was simply not credible, particularly when so many of the pertinent details differed from those described by both Doran and Kellogg.

It is clear that police officers owe a duty of care to protect those in their custody from the risk of foreseeable harm (see e.g. Parvi v City of Kingston, 41 NY2d 553 [1977]). Regardless of whether claimant was actually in custody when he was hit, with a concomitant duty of care thereby owed, nevertheless, that duty is one of protection from foreseeable harm, or in other words, “[w]hether there was a breach of that duty turns on the question of whether the resulting injury to [claimant] was a reasonably foreseeable consequence of the State’s conduct” (Johnson v State of New York, 253 AD2d 274, 278 [1999]).

In this instance, the Court finds that claimant’s injuries were not a reasonably foreseeable consequence of the State’s conduct. When Trooper Doran braked hurriedly upon seeing an individual matching the description he had been given carrying a gun and a bottle, standing some distance off the road, and yet did not angle the vehicle or turn on his emergency lights as Betts testified he should, it was simply not foreseeable that claimant would move toward Trooper Doran - and thus the road - in the face of Trooper Doran’s instructions and his drawn weapon. It was further not foreseeable that claimant would eventually unilaterally decide to lay down in the road - as opposed to on the shoulder or even farther away from the road - immediately prior to the approach of an oncoming vehicle.

Additionally, even if Trooper Doran had angled his vehicle and turned on his emergency lights, Betts’ testimony was inconsistent as to whether that would have had the result of preventing claimant’s injuries. Betts stated: “as soon as you turn [the vehicle], you would have been in both lanes. The desired result is to alert motorists that there’s a situation there. People have a tendency to slow down.” He further testified: “if [the vehicle was] turned, the reflective stripes on the side of the vehicle would have alerted oncoming traffic to slow and stop.” However, Quackenbush testified that when he came over the knoll and recognized that there was an obstruction in the road, he “braked real heavy,” and “was going to stop.” He also said he saw the Trooper’s spotlight shining across the road. He stated that he had already “slowed up considerably” and moved over onto the shoulder to avoid anything in the road, when he saw claimant jump out of the way. It is clear from his testimony that Quackenbush was alerted that there was “a situation” in the road, and he responded by slowing down and moving to the shoulder. Nothing in the record shows that he would have acted any differently if Trooper Doran had his emergency lights on, or his vehicle at a greater angle than it was.

Finally, there was no testimony to indicate that either angling the vehicle or use of the emergency flashers was required by some protocol, policy or manual. In fact, the testimony of the other police officers consistently indicated that standard protocol would be to leave emergency lights inactive when approaching the scene of a possible domestic disturbance. While perhaps in retrospect the better decision would have been to activate the emergency lights and to place the vehicle at more of an angle in the road, it cannot be said that Trooper Doran behaved negligently in the face of the possible subject of a domestic disturbance who was unexpectedly found to be carrying a gun and what appeared to be a wine bottle, who ignored directions to get down and drop the gun, who took steps toward the Trooper while putting his other hand on the gun in a firing position, and who then laid down in the road.

The claim is therefore dismissed on the merits. Any motions not previously determined, including defendant’s motion to dismiss, are hereby denied. Let judgment be entered accordingly.

July 1, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. Claimant Kristal Johnson’s claim is derivative in nature, and unless otherwise indicated or required
by context, the term claimant shall refer to James Johnson.
[2]. Although Thomas Doran is no longer employed by the State Police, for consistency, the Court will refer to him throughout this Decision as “Trooper Doran.”
[3]. All quotes herein are taken from the Court’s recording of the proceeding.
[4]. Claimant’s Exhibit 8, pp 19-20.
[5]. In his sworn statement taken that night, Kellogg stated that it appeared that claimant was attempting to hide the gun from the Trooper (Claimant’s Exhibit 11, p 46).
[6]. In a sworn statement dated February 22, 2002, Kellogg stated that claimant had moved as far as the ditch beside the road when the vehicle swerved into the ditch and hit him.
[7]. Claimant’s Exhibit 8, p 120.