New York State Court of Claims

New York State Court of Claims

DEMERS v. STATE OF NEW YORK, #2009-039-132, Claim No. 109168 and 109149


Following a trial, the Court concludes that claimants did not prove by a preponderance of the credible evidence that State troopers acted with reckless disregard for the safety of others when they pursued a vehicle through the streets of Glens Falls over the course of approximately 8/10ths of a mile and for a duration of between 20 to 30 seconds. The high speed chase culminated in a collision between the pursued vehicle and a third-party vehicle which resulted in the death of claimant Hilliker and injuries to claimant Ward.

Case Information

RICHARD DEMERS and SHEILA DEMERS and VICKIE DEMERS, as Co-Administrators of the Estate of Tonya M. Hilliker, and WINFIELD WARD
Claimant short name:
Footnote (claimant name) :

STATE OF NEW YORK1 1.The Court has, sua sponte, amended the captions in both claims 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):
109168 and 109149
Motion number(s):

Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
Tepper, Dardeck & Levins, LLP
By: James G. Levins III, Esq., Of Counsel
Attorneys for Richard and Sheila Demers
(Claim No. 109168)

Anderson, Moschetti & Taffany, PLLC
By: David J. Taffany, Esq., Of Counsel
Attorneys for Vickie Demers

Bartlett, Pontiff, Stewart & Rhodes, P.C.
By: Malcolm B. O’Hara, Esq., Of Counsel
Attorneys for Winfield Ward
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 22, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Richard Demers, Sheila Demers and Vickie Demers, as co-administrators of the estate of Tonya M. Hilliker (Claim No. 109168), and claimant Winfield Ward (Claim No. 109149) commenced claims against the State of New York (hereinafter defendant) alleging, among other things, that on April 19, 2003 at approximately 2:30
in the City of Glens Falls, two New York State troopers acted with “reckless disregard” under Vehicle and Traffic Law § 1104 (e) during a high speed vehicular pursuit of another vehicle, and that their recklessness caused the death of Ms. Hilliker and injuries to Mr. Ward when the car they were pursuing collided with other vehicles. The liability portion of the trial was conducted on September 16, 2008 and February 10, 2009. Claimants called five witnesses including three bystanders to the accident and the two state troopers involved in the pursuit. Defendant’s witnesses included two City of Glens Falls police officers on duty at the time of the accident and a State Police investigator with experience in accident investigation and accident reconstruction. Exhibits received into evidence included maps, photographs, witness statements and portions of State Police written policies. The parties requested and were granted time to submit post-trial memoranda.

The proof offered at trial demonstrated that at or around 2:30
on April 19, 2003, a white car[2] was closely following a marked state trooper vehicle driven by Trooper Matthew Gilbert on Main Street[3] in the City of Glens Falls. Gilbert was accompanied by Trooper Kevin Bouyea, who was sitting in the front passenger seat. The white car then turned left off Main Street onto South Western Avenue. The troopers continued to travel a short distance on Main Street and turned left onto Luzerne Road to ascertain why the vehicle had been following them. At that point, the troopers observed the white car heading toward them, going the wrong way on a one-way street. Gilbert took evasive action and pulled the patrol car to the right side of the road. The white car passed them, and Gilbert made a U-turn on Luzerne and activated the emergency lights. The white car then hesitated before turning left onto Broad Street, which is the continuation of Main Street.[4] The troopers stopped at the corner of Luzerne and Broad, turned left onto Broad and activated the car’s sirens. Broad Street is a straight-away and is lined with businesses and residential properties. There was no evidence of any traffic on Broad Street at the time of the pursuit.

The white car accelerated as it proceeded on Broad. The troopers continued to follow the white car and accelerated as well. The posted speed limit was 30 miles per hour. Near the intersection of Broad and Hudson Avenue, Bouyea attempted to radio the Glens Falls Police Department to notify them about the white car and its location. The troopers estimated the top speed of the white car as it continued on Broad was between 80 and 85 miles per hour. Gilbert testified that the patrol car sustained a top speed of 70 miles per hour for approximately 10 seconds and that said speed occurred at or around the intersection of Broad and Hudson. Bouyea testified that he obtained the license plate number of the white car near the intersection of Broad and Hudson, and that their patrol vehicle then decelerated. According to Bouyea, the closest the patrol vehicle came to the white car was ten car lengths when he was reading the white car’s license plate.

Gilbert testified that the patrol car got within 25 yards of the white car in the vicinity of Hudson Avenue before he slowed the car down to a speed of 50 miles per hour because he was concerned about the safety of continuing the pursuit. The troopers then followed the vehicle at the lesser speed, with sirens and lights still activated. The white car remained unresponsive to the lights and sirens and continued accelerating. The troopers lost sight of the vehicle for several seconds. When they reached the intersection of Broad and South Streets, they observed the white car in a rocking or bouncing motion as it came to a stop in the middle of South Street. Gilbert brought their patrol vehicle to a controlled stop at or near the corner of Broad and South and they exited their vehicle with guns drawn. Gilbert and Bouyea acknowledged that they were familiar with the City of Glens Falls and knew that the area on South Street where the fatal accident occurred would be populated with pedestrians frequenting bars and restaurants in the early morning hours. The distance between the corner of Luzerne and Broad and the scene of the accident on South Street was estimated to be 8/10ths of a mile.

Claimants produced three witnesses who were present at the scene of the accident when it occurred. Timothy Culligan testified that he was sitting behind the wheel of his car, which was parked on South Street, facing away from the intersection of Broad and South. He was talking with Ms. Hilliker and Walter LaBarge, both of whom were standing outside his car, when he heard sirens and then saw LaBarge run. He recalled that his car was then struck by the white car and he was “bounced around.” The force of the impact pushed his car to the curb. He then checked himself for injuries and felt pain in his left leg. He recalled seeing state troopers with their guns drawn “a matter of seconds” after his car was struck. LaBarge testified that he was a friend of Ms. Hilliker’s and was talking with her and Culligan when he noticed some lights and heard sirens. As he turned toward the intersection of Broad and South, he observed “the white car was doing at least 70 to 80 miles per hour and the State Trooper was right behind him” and as the cars entered South Street, the troopers’ vehicle “was still right on [the white car’s] tail.” He did not see the troopers’ car strike any cars or pedestrians. Anthony Suttle testified that he had known Ms. Hilliker for a year or two and had been with her for most of the evening prior to the accident. He testified that as he was crossing South Street, he heard sirens, looked up and saw the white car being followed by the trooper vehicle “[r]ight behind it . . . maybe ten feet” and that the trooper vehicle was “right behind him” as the vehicles approached and entered South Street. He ran quickly to the sidewalk to avoid the white car and suffered a gash on his forearm. He agreed that the trooper vehicle neither skidded nor was out of control, and that it pulled up and parked near the white car.

According to Michael MacIntosh, a State Police investigator with expertise in accident reconstruction, physical evidence at the accident scene, including the post-crash location of the vehicles and pre-impact tire marks and debris, indicated the white car’s speed was 82.22 miles per hour as it made the turn from Broad to South. He found no evidence of pre-impact tire marks from the trooper vehicle and no indication of physical contact or damage to the trooper vehicle.

Testimony from Glens Falls Police Officers Arnold and Clark, on duty on South Street that evening, indicates the two officers heard sirens before the crash and saw the white car make the turn off Broad at a high rate of speed and strike other vehicles before it came to rest. Both officers then ran towards the white car. Neither officer testified that he observed the trooper vehicle enter the intersection. Officer Arnold first noticed the troopers as they exited their vehicle five to eight seconds after the white car came to a full stop, and Officer Clark saw the trooper car several seconds after the white car’s initial impact.
It is well settled that “[t]he driver of an ‘authorized emergency vehicle’ ” (see Vehicle and Traffic Law § 101) who is involved in an “emergency operation” as defined by Vehicle and Traffic Law § 114-b, is afforded the qualified protections of Vehicle and Traffic Law § 1104 (e), including protection from civil liability unless the operator is engaged in conduct which rises to the level of recklessness or reckless disregard for the safety of others (see Criscione v City of New York, 97 NY2d 152, 158 [2001]; Szczerbiak v Pilat, 90 NY2d 553, 556-557 [1997]; Saarinen v Kerr, 84 NY2d 494, 501 [1994]; Gonyea v County of Saratoga, 23 AD3d 790, 791 [2005]). “This rule strikes a balance that allows police officers ‘to carry out their important responsibilities [which]

. . . will inevitably increase the risk of harm to innocent motorists and pedestrians’ (Saarinen v Kerr, 84 NY2d at 502), while still protecting ‘the general public against disproportionate, overreactive conduct’ (Campbell v City of Elmira, 84 NY2d 505, 512 [1994])” ( Flack v State of New York, 57 AD3d 1199, 1200 [2008]).

The more rigorous standard of reckless disregard
“demands more than a showing of a lack of ‘due care under the circumstances’ - - the showing typically associated with ordinary negligence claims. It requires evidence that ‘the actor has intentionally done 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 has done so with conscious indifference to the outcome”

(Saarinen v Kerr, supra at 501, quoting Prosser and Keeton, Torts § 34 at 213 [5th ed]; see also Szczerbiak v Pilat, supra at 557; Martin v Miller, 255 AD2d 816 [1998]). Reliance on a mere negligence standard in such cases “would lead to judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions . . . [and the prospect of civil liability for a] mere failure of judgment could deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants” (Rusho v State of New York, 24 Misc 3d 752, 758 [2009]).

Where a police officer is engaged in a vehicular pursuit, the officer must abide by the restrictions set forth in Vehicle and Traffic Law § 1104 (e) and by departmental procedures and training (King v Village of Cobleskill, 237 AD2d 689, 690 [1997]; Palella v State of New York, 141 AD2d 999, 1000 [1988]; Mitchell v State of New York, 108 AD2d 1033, 1034 [1985], lv denied 64 NY2d 1128 [1985], lv denied 64 NY2d 611 [1985]). Notably, “[t]he reasonableness of the officer’s conduct must be gauged as of the time and under the circumstances in which he acted, not in retrospect” (Palella v State of New York, supra at 1000; see also King v Village of Cobleskill, supra at 692).
“ Moreover, ‘if a police officer conducting a pursuit uses his best judgment as to the most effective means of dealing with a traffic violator and acts without reckless disregard of the safety of others, no liability will attach to his actions even though hindsight might disclose other means of apprehension which may have been safer (Stanton v. State of New York, [29 AD2d 612]; Dunn v. State of New York, 34 AD2d 267; Thain v. City of New York, 35 AD2d 545)’ ”

(Bracci v State of New York, 9 Misc 3d 874, 882 [2005], quoting Strobel v State of New York, 36 AD2d 485, 488 [1971], affd 30 NY2d 629 [1972]; see also Gonzalez v Iocovello, 93 NY2d 539, 551 [1999] [Vehicle and Traffic Law § 1104 (e) “requires the trier of fact not to second-guess an officer’s split-second weighing of choices” but instead determine if the officer acted with “reckless disregard”). Notably, “[t]he fact that an officer exceeds the speed limit does not by itself constitute a predicate for the imposition of liability” (Schieren v State of New York, 281 AD2d 828, 831 [2001]; see also Saarinen v Kerr, supra at 503).

Based upon the aforementioned principles and their application to the facts presented here, and after consideration of the evidence proffered at trial, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that although the events that transpired during the early morning of April 19, 2003 culminated in a tragic and violent end, the State troopers did not act with reckless disregard for the safety of others. The troopers acted within their authority to investigate the patently erratic behavior of the driver of the white car and to pursue him when he failed to comply with activated lights and sirens. Having “observed erratic and dangerous driving . . . [the officers were] duty bound to investigate using all reasonable means, including pursuit, to stop the reckless vehicle’s progress” (Mullane v City of Amsterdam, 212 AD2d 848, 850 [1995]).

In the instant case, the troopers’ conduct was reasonable as of the time and under the circumstances in which they acted. Indeed, it is not the role of the Court to assess, retrospectively, the split-second decision-making by a police officer charged with enforcing the law and protecting the public (see Schieren v State of New York, supra at 830-831). Both troopers testified that the duration of the entire incident, from its origin on Luzerne, when they activated the trooper car lights and began their pursuit to its termination 8/10ths of a mile later on South Street, was between 20 and 30 seconds. While Gilbert acknowledged that he sustained a top speed of 70 miles per hour during the pursuit, he only did so for a matter of seconds, subsequently reducing the patrol car’s speed upon their obtaining the white car’s license plate number. Nor is the Court persuaded by claimants’ argument that the troopers’ conduct was reckless given their undisputed knowledge of the bar district area where the collision occurred. Although the troopers’ decision to engage in a pursuit at a high rate of speed, at night, along city streets, and in the direction of an area likely to be frequented with bar and restaurant patrons, could be viewed as unwise or even negligent, it does not rise to the level of reckless conduct “as of the time and under the circumstances in which” the troopers were called upon to act (Palella v State of New York, supra at 1000). A finding of reckless conduct by the troopers, given the duration and distance of the pursuit herein, would run contrary to the legislative intent underlying Vehicle and Traffic Law § 1104 of striking a balance between “encouraging emergency personnel to act swiftly and resolutely while at the same time protecting the public’s safety to the extent practicable” (Saarinen v Kerr, supra at 502).

Here, a review of the New York State Police Emergency Vehicle Operator’s Course regarding “Pursuit and Emergency Driving” (exhibit 7) and the “Pursuit Driving” section in Article 30 the New York State Police Field Manual (exhibit 6) reveals no evidence that either policy was violated during the pursuit by Troopers Gilbert and Bouyea. The proof shows that the troopers activated the emergency lights and sirens, attempted to notify other law enforcement personnel and relay relevant information, considered the importance of safety and the need to balance the risks to the public and themselves against the duty to enforce the law and apprehend violators, and reduced their speed after obtaining the license plate number and upon realizing the dangers of continuing the pursuit in that area of the city.

Notwithstanding the inconsistencies in the proof as to the distance between the patrol vehicle and the white car during the pursuit on Broad Street and as to the distance between the cars as they entered South Street, or the conflicting testimony from Trooper Bouyea that he never saw the collision compared to his written statement made two months after the accident that both troopers “observed the pursued vehicle striking several cars, coming to rest in the middle of South Street” (claimant’s exhibit 22), the evidence proffered does not demonstrate reckless conduct. The troopers were tailgated late at night by a vehicle that forced them off the road by driving toward them the wrong way on a one-way street. The vehicle then turned onto another street and accelerated at a high rate of speed toward a section of the city that the troopers knew would be populated with bar or restaurant patrons. This aberrant and hazardous conduct by the driver of this vehicle posed a “clear and present threat” (Mullane v City of Amsterdam, supra at 850) to other motorists and pedestrians and justified the troopers’ efforts to initiate a pursuit once the driver refused to stop after lights and sirens were activated. Moreover, during this frenetic half minute of activity, the troopers activated their lights and sirens, attempted to make radio contact with the Glens Falls Police Department, and considered the safety ramifications of continuing the pursuit toward the South Street area as evidenced by the troopers’ decision to reduce the vehicle’s speed and activate the vehicle’s lights and sirens.

As for the testimony of the bystander witnesses - Timothy Culligan, Walter LaBarge and Anthony Suttle - the Court is not persuaded that their testimony demonstrates that the troopers acted with reckless disregard for the safety of others. None of the witnesses testified or gave written statements that the troopers’ vehicle was out of control, skidded or struck any person or vehicle. From all accounts, the moments leading up to the white car turning the corner and colliding with Culligan’s vehicle and other cars were tumultuous and fast-moving. These bystander witnesses acknowledged either at trial or in written statements[5] that the events transpired very quickly, and that they each were either moving out of harm’s way in the moments before the accident or examining themselves for injury in the immediate aftermath of the accident. Consequently, the Court finds unreliable the bystander witnesses’ estimates of matters such as the elapsed time between the accident and when they saw the troopers outside of their vehicle, the speeds of the two cars, and the distance between the vehicles as the cars approached and entered South Street.

The weight of the bystanders’ testimony regarding the proximity between the two vehicles immediately before the accident is also diminished by the absence of contact damage on the troopers’ car and pre-impact skid or tire marks from the troopers’ car at the accident scene, in the area approaching the scene or in the roadway. Investigator MacIntosh testified that the absence of tire marks indicated “there was no contact between the Troop car and the [white] car, and there was also no evasive movements by the Troop car and/or emergency braking by the Troop car.”

Finally, the Court is not persuaded, based on the proof presented, that the troopers’ conduct, rather than the manner in which the driver of the white car operated his vehicle, was the proximate cause of the accident (see Schieren v State of New York, supra at 831-832; Mitchell v State of New York, supra at 1035; Stanton v State of New York, supra).

Thus, upon weighing the evidence, the Court concludes that claimants have failed to prove by a preponderance of the credible evidence their claims against defendant. Accordingly, the claims are dismissed in their entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court is directed to enter judgments accordingly.

September 22, 2009
Albany, New York

Judge of the Court of Claims

[2].The car that the troopers pursued is identified in the record as “the Passino vehicle” or “the white car”. The Court will also refer to the pursued vehicle as the “white car”.
[3]. Claimants’ exhibit 5, received into evidence, is a detailed map showing the origins of the pursuit, the route taken along Broad Street and the various cross streets before reaching South Street.
[4].Claimants’ exhibits 8 through 21, received into evidence, are a series of photographs approximately 8½ inches by 12 inches in size, depicting the route taken during the pursuit of the white car commencing at the corner of Broad and Luzerne and terminating on South Street. Defendant’s exhibit A, also received into evidence, is a large aerial photograph that appears to encompass the entire area of the pursuit.
[5].After the accident, Culligan and LaBarge gave written statements to the State Police (see claimants’ exhibits 3 and 4). Suttle gave two written statements (see claimants’ exhibits 1 and 2).