New York State Court of Claims

New York State Court of Claims

SIMMONS v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2009-018-053, Claim No. 113125, Motion No. M-76556


Case Information

TIMOTHY E. SIMMONS, SR., KATHLEEN M. SIMMONS, Individually and as Parent and Natural Guardian of DANIEL J. SIMMONS and ROBERT SIMMONS
1 1.The Court has amended the caption sua sponte to reflect the proper Defendants.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the proper Defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
MACKENZIE HUGHES LLPBy: Arthur W. Wentlandt, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Christopher Wiles, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendants bring a summary judgment motion seeking an order dismissing the claim.

Claimants oppose the motion.

The basic facts are not really in dispute. On December 27, 2005, at approximately 8:00 p.m., State Troopers Michael J. Davis and Wayne Carr were in a marked State Trooper vehicle at a U-turn in the center median on Interstate 90 (I-90) of the New York State Thruway, just east of Exit 39 in the Town of Van Buren. The troopers were assigned to work together that evening from the Weedsport exit to the Westmoreland exit. In the median, the trooper vehicle was parked with its lights off facing south while Trooper Carr operated a laser device to assess the speed of passing motorists. Trooper Carr advised Trooper Davis that a passing vehicle was traveling at 80 miles per hour (mph). Trooper Davis then backed up in the U-turn so that he could pull the car out into the westbound passing lane of I-90. He had to wait for a couple of cars to pass before it was safe to pull out. He only had his headlights on at this time.

Traffic on the Thruway was moderate. Trooper Davis accelerated to 90 mph toward the targeted vehicle. He flashed his headlights at one vehicle that was in front of him, and that vehicle moved over into the driving lane. Trooper Carr kept watch on the subject vehicle, which was white with four doors, while Trooper Davis attempted to catch up to it. After passing Exit 39, Trooper Davis was passing a red sport utility vehicle when it started to pull into his lane. Trooper Davis moved the Trooper vehicle over to the left shoulder and then went into the grassy part of the median. At this point, Trooper Davis lost control of the vehicle as it began to fishtail. The trooper’s vehicle re-entered the roadway moving from the passing lane into the driving lane where it struck Claimants’ vehicle. Claimants’ vehicle went off the right shoulder of the roadway rolling over a few times before coming to rest on its roof. Trooper Davis never activated his police lights or siren at any time. After an internal State Trooper investigation into the incident, Trooper Davis was disciplined for being involved in a preventable accident.

It is the State’s position that based upon these facts, the troopers’ vehicle was an emergency vehicle engaged in an emergency operation, and pursuant to Vehicle and Traffic Law § 1104(a), the State cannot be held liable for Trooper Davis’ conduct unless it can be found to be in reckless disregard for the safety of others. Defendant argues the claim should be dismissed because Trooper Davis’ conduct was not, as a matter of law, reckless. Alternatively, Defendant argues that even if there is a question of fact regarding whether Trooper Davis’ conduct was reckless, the claim must still be dismissed because Claimants cannot establish that they have suffered a serious injury as defined in § 5012(d) of the No-Fault Insurance Law and as a result their claim is barred by the statute.

Claimants, in opposition, argue that there are questions of fact regarding the applicable standard of care and whether Claimants’ injuries meet the serious injury threshold. It is Claimants’ position that Trooper Davis does not get the benefit of the lower standard of care because he was not engaged in an emergency operation at the time of this accident. Specifically, they argue that the troopers were not yet in pursuit of the vehicle. Trooper Davis did not activate his lights and admits that he was not engaged in stopping the vehicle at the time of the accident. Even using the reckless disregard standard, Trooper Davis’ conduct in trying to catch up to the alleged “speeder” by driving his vehicle on a dark night at 90 mph, faster than the speeder was traveling, without his lights or siren activated, could be found reckless.

As for Defendants’ position that the Claimants did not sustain serious injuries as defined by the No-Fault Insurance Law, Claimants argue, first, that Defendants’ submissions cannot be considered because the medical records are not in admissible form. Moreover, Claimant, Daniel Simmons, sustained a fracture of his toe which is a serious injury under the law. Claimant, Timothy Simmons, Sr., suffered a permanent consequential limitation and significant limitation of use of a body organ, member or function as defined in Insurance Law § 5102(d).

Vehicle and Traffic Law § 1104 provides in pertinent part:

(a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may...

3. Exceed the maximum speed limits so long as he does not endanger life or property...

(e) the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provision protect the driver from the consequences of his reckless disregard for the safety of others.

Every police vehicle is an “authorized emergency vehicle” pursuant to Vehicle and Traffic Law § 101. A police vehicle “pursuing an actual or suspected violator of the law...” is engaged in an “emergency operation.” (Vehicle and Traffic Law § 114-b). Undisputedly, Trooper Davis was operating an emergency vehicle. Claimants take issue with whether Trooper Davis was engaged in emergency operation at the time of the accident.

The issue of what is an emergency operation in this case is not determined by the trooper’s failure to activate the vehicle’s lights and siren. Although the reduced standard does not apply to other emergency vehicles if lighted lamps and sirens are not employed, the legislature specifically exempted police vehicles from this requirement (Vehicle and Traffic Law § 1104 [c]), implicitly foreseeing circumstances where a police officer might be pursing an expected violator of the law without activating the police vehicle’s lights and sirens. The undisputed testimony of both Troopers Davis and Carr that they left the U-turn area to catch up to the speeder with the intent to stop the vehicle for driving in excess of the speed limit is the conduct which meets the statutory criteria for “emergency operation.” (See Williams v City of New York, 240 AD2d 734 [police officers who had triple-parked police cars while they were investigating a potential stolen vehicle that was double-parked were found to be pursuing an actual or suspected violator of the law and thus involved in an “emergency operation” under the statute]; O’Banner v County of Sullivan, 16 AD3d 950 [a deputy sheriff was found to be involved in an “emergency operation” when, in response to a dispatch report of a vehicle proceeding erratically, he turned and looked over his shoulder at a passing vehicle matching the description and rear-ended a vehicle stopped at an intersection]; see also Rusho v State of New York, 24 Misc 3d 752 [parole officer’s turn without turn signal, horn, siren or warning lights into path of oncoming vehicle in an effort to change direction in order to pursue a parole absconder was an emergency operation and not reckless]).

The question then becomes, could Trooper Davis’ conduct, under these circumstances, be found to be reckless? Based upon the undisputed facts that answer is no. The standard of reckless disregard “requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known and 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, 84 NY2d 494, 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]). Among the factors to be considered in determining whether a State Trooper acted recklessly in pursuing a vehicle: (1) the nature of the original offense; (2) the length of miles of the chase; (3) the duration of time of the chase; (4) the weather conditions; (5) road conditions; (6) traffic volume; (7) neighborhood characteristics; (8) visibility; (9) speed (Dale and Gere v State of New York, Ct Cl, Lebous, J., June 30, 2003, Claim No. 98032 [UID # 2003-019-006]). A violation of the New York State Police Manual is “an important, although not dispositive, factor in determining whether [the trooper] had acted recklessly.” (Saarinen, 84 NY2d at 503, n 3; Criscione v City of New York, 97 NY2d 152, 158; see also Dale and Gere v State of New York, Ct Cl, Lebous, J., supra). Thus, despite Claimants’ argument that Trooper Davis’ testimony that his actions that night were not covered by any specific guideline in the New York State Police Field Manual conveniently leaves no departmental standard by which to judge the trooper’s conduct, this does not raise issues of fact.

That night, Trooper Davis drove up to 25 mph above the speed limit on the Thruway, in the passing lane, while pursuing a vehicle going 80 mph. This is a roadway designed for faster travel, without risk of encountering pedestrians, intersections, blinding curves or hills. It was nighttime but the weather was clear. Although it may have started to mist around the time of the accident, there is no indication that weather conditions played any role in this accident. Traffic was not heavy that evening. Under these circumstances, the Court finds that, as a matter of law, Trooper Davis’ conduct was not reckless (see Saarinen, 84 NY2d 494 [where officer traveled at 60 mph on relatively empty but wet, nonresidential streets in pursuit of erratic driver was found to not be reckless]; compare Badalamenti v City of New York, 30 AD3d 452, [question of fact whether officer’s conduct in accelerating into intersection with obstructed view and failing to stop at stop sign was reckless and issue existed as to whether officer had his lights and siren activated]; Rockhead v Troche, 17 AD3d 118, [issue of fact whether probationary sheriffs were reckless when they pursued a potentially stolen van through a heavily trafficked residential area against a red light before the van crashed into plaintiff’s vehicle]; Sweeney v Peterson, 1 AD3d 650, [question of fact whether officer, with less than one year experience traveling between 60 to 65 mph in a 55 mph zone on a wet roadway responding to a report of a possible burglary in process was reckless when in the heavy rain he lost control of his vehicle, spun across the center line striking plaintiff’s oncoming vehicle]; Spalla v Village of Brockport, 295 AD2d 900 [issue of fact whether officer’s conduct was reckless when he proceeded at 90 mph through congested areas and into a heavily traveled intersection]; Allen v Town of Amherst, 294 AD2d 828, [question of fact whether officer acted recklessly in exceeding the speed limit by traveling between 62 and 72 mph, in an area with other vehicular traffic, possibly in violation of department rules and regulations and collided with a vehicle turning into a shopping plaza in front of the officer]; Baines v City of New York, 269 AD2d 309, [jury found officer’s conduct in driving into an intersection against a red light at an unsafe speed without sirens and then suddenly stopping in plaintiff’s lane of traffic making no effort to avoid a collision was reckless]; McCarthy v City of New York, 250 AD2d 654, [issue of fact whether officer’s conduct in trying to pass another police vehicle as both turned left onto a side street on a wet roadway, with fog and no emergency signals in use was reckless]; Zulauf v State of New York, 119 Misc 2d 135, [officer’s conduct was found reckless when he proceeded with lights activiated at speeds of 60 to 80 mph down a narrow rural town road with a hill that obscured a railroad crossing, marked by signs, in pursuit of two vehicles traveling at high speed. One of the speeding vehicles crashed into claimant’s vehicle which was stopped for a passing train]).

It is clear that speed alone is not the critical issue (Sweeney, 1 AD3d at 651-652). Rather, in reviewing the relevant cases, reckless conduct involves surrounding conditions such as bad weather, heavy traffic volume, a populated area, or travel through an intersection - coupled with the officer’s speed to create a situation where an injury or accident is highly probable. Here, other than the trooper’s speed, none of those other factors are present. Relying on other motorists abiding by the rules of the road, it was not highly probable that someone would be injured by Trooper Davis’ conduct that evening. Although if judged by the standard of ordinary care, a question of fact may exist as to whether Trooper Davis’ conduct was negligent, as a matter of law, Trooper Davis’ conduct was not in reckless disregard for the safety of others.

Accordingly, based upon the foregoing, Defendants’ motion must be GRANTED and the claim DISMISSED.

November 30, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion with exhibits attached thereto, including an affirmation of Ralph F. Ambrosio, Esquire, in support.

2. Defendants’ Memorandum of Law, in support.

3. Affirmation of Christopher Wiles, Esquire, Assistant Attorney General, in support with exhibits attached thereto.

4. Affidavit of Arthur W. Wentlandt, Esquire, in opposition, sworn to July 28, 2009, with exhibits attached thereto.

5. Affidavit of Richard Boccio, M.D., in opposition, sworn to July 22, 2009, with exhibits attached thereto.

6. Affidavit of Anthony L. Finuoli, D.O., in opposition, sworn to July 27, 2009, with exhibits attached thereto.

7. Claimants’ Memorandum of Law, in opposition.