Court granted defendant's motion for summary judgment in claim for injuries due to collision between claimant's automobile and State Trooper following another vehicle; as a matter of law, Trooper's conduct did not meet reckless disregard standard.
|Claimant(s):||GARY STEINHILPER and BARBARA STEINHILPER|
|Claimant short name:||STEINHILPER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||THE ZIFF LAW FIRM, LLP
BY: Adam M. Gee, Esq., of counsel
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 13, 2009|
|See also (multicaptioned case)|
Claimants filed this claim to recover for personal injuries allegedly received by claimant Gary Steinhilper(2) when a vehicle he was operating collided with a State Police vehicle (the Police Vehicle) driven by former Trooper Christopher Goeberts(3) (the Trooper) on State Route 14 (Route 14) in the Town of Horseheads, Chemung County. Defendant State of New York (defendant) answered, and discovery was conducted. Claimants now move for summary judgment on the issue of liability. Defendant opposes the motion and cross-moves for summary judgment.
Claimants argue that the Trooper was not engaged in an emergency operation of the Police Vehicle. Claimants further contend that even if he was engaged in such an operation, the Trooper's conduct in failing to yield the right of way (by turning left in front of claimant without activating his emergency lights or siren) is not a permitted action under Vehicle and Traffic Law
§ 1104, and should therefore be judged by a negligence standard instead of the higher standard of reckless disregard for the safety of others. Claimants alternately contend that even if the Trooper was engaged in an emergency operation, his conduct was reckless.
Conversely, defendant asserts that because the Trooper was following a vehicle that had only one operable headlight (the Subject Vehicle), he was in pursuit of a suspected violator of the law, and thus engaged in an emergency operation. Defendant contends that neither the Trooper's failure to activate his emergency lights or siren nor his direction of travel are sufficient for a finding of reckless disregard under the statute.(4)
The moving party on a motion for summary judgment is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).
Vehicle and Traffic Law § 1104 (a), (b) provides that drivers of an "authorized emergency vehicle" which is involved in an "emergency operation," may disregard certain "rules of the road" (see Riley v County of Broome, 95 NY2d 455, 462 ), including "regulations governing directions of movement or turning in specified directions" (Vehicle and Traffic Law
§ 1104 [b] ). It is well settled that a police officer's conduct in "pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others" (Saarinen v Kerr, 84 NY2d 494, 501 ; see also Vehicle and Traffic Law § 114-b; Criscione v City of New York, 97 NY2d 152 ; Szczerbiak v Pilat, 90 NY2d 553 ).
Claimant testified at an examination before trial. He stated that at the time of the accident, approximately 9:30 p.m. or 9:45 p.m., he was on his way to work, and that he was familiar with the area as he drove that route at least five times a week. Claimant was proceeding northbound on Route 14 and approaching the intersection with Wygant Road on the right. He testified that the speed limit in the area is 55 miles per hour, and that the intersection is controlled by a traffic light. As he continued northbound toward Wygant Road, he noticed several cars proceeding southbound on Route 14. Specifically, he saw two cars in the left-turn lane from Route 14 onto Wygant Road. Claimant testified that as he was almost into the intersection, the first car (a small, dark vehicle, presumably the Subject Vehicle) in the turn lane on Route 14 southbound turned directly in front of him. Claimant did not strike that vehicle - although he indicated that he did not miss it by much - but does not remember if he hit the brakes. Claimant did admit that he may have flicked his lights at the driver. The next thing that claimant recalled was the airbag going off, and his vehicle was in the ditch. Claimant did not hear a siren or see the Police Vehicle or any emergency lights at any time prior to the accident.
The Trooper also testified at a deposition. He stated that he had originally been traveling northbound on Route 14 when he observed a vehicle traveling southbound that appeared to have a headlight out. At the time that he made the U-turn, he did not believe that he was involved in an emergency situation, and planned to stop the Subject Vehicle to inform the driver that a headlight was out. Until he actually spoke to the driver, he did not know whether he would issue a citation. He further explained that during the course of his U-turn, another vehicle got between him and the Subject Vehicle, and he decided not to turn on his emergency lights until he was directly behind the Subject Vehicle. The Trooper indicated that he did not plan to stop the Subject Vehicle until they both had passed through the intersection and were a safe distance away, so that he could activate the emergency lights without distracting other drivers. He expected the Subject Vehicle to proceed straight through the intersection. However, the Subject Vehicle "made an abrupt left turn" onto Wygant Road.(5) The Trooper stated that he was still far enough behind so that he was able to "gently" pull into the turning lane. He stated that he was not in a hurry to get through the intersection because he knew that Wygant Road was fairly straight and he did not believe that he would lose sight of the Subject Vehicle even if he had to wait for the traffic light to change. He remembered that he entered the turning lane and that the signal was green. The traffic was light and the Trooper estimated that he was traveling at approximately 20 miles per hour. He did not recall seeing any northbound vehicle, such as claimant's vehicle or any headlights, so he decided to make the turn. The Trooper testified that he did not remember anything after the collision - not even whether there were any vehicles in either the northbound or southbound lanes.
Glen Voigt, a nonparty witness, also testified at an examination before trial. Voigt stated that it was clear and cold on the night of the accident. He was traveling southbound on Route 14 when he was passed by a dark, "low rider-style" car (presumably the Subject Vehicle). At that time, he noticed a vehicle proceeding northbound, about 500 feet away. When this vehicle made a U-turn in front of him, Voigt realized that it was the Police Vehicle. The Police Vehicle then proceeded southbound after the Subject Vehicle. Voigt stated that he believed the Police Vehicle was pursuing the Subject Vehicle for speeding. Voigt saw the Subject Vehicle make a fast left turn and proceed along Wygant Road. He stated that the Police Vehicle immediately moved into the turn lane, and the brake lights came on as it approached the intersection, then they went off. "[A]s [the Police Vehicle] went [into] the intersection, all of a sudden [the Police Vehicle] was basically thrown [into] the air which is the first thing that . . . [he] saw . . . The [Police Vehicle] spun around at 180 degrees, still airborne, bounced about four times and ended up in the ditch . . . hanging with the tail end up in the air and the front end [into] the ditch."(6) Voigt did not see any other vehicle - in either the northbound or southbound lanes - or any headlights either before or after the collision. By the time the Police Vehicle had spun around, Voigt was within 50 yards of it. He slammed on his brakes, parked his car, and called 911.
It is undisputed that the Police Vehicle, a marked State Police Troop car, was an authorized emergency vehicle (Vehicle and Traffic Law § 101). However, claimant asserts that because the Trooper was following, rather than pursuing, the Subject Vehicle for a mere traffic infraction, the Trooper was not engaged in an emergency operation. It is not necessary for the police to initiate a formal pursuit, i.e., to be swiftly chasing a suspect, in order to be engaged in an emergency operation pursuant to Vehicle and Traffic Law § 114-b (see Rusho v State of New York, 24 Misc 3d 752 ; Daniels v State of New York, Ct Cl, Apr. 16, 2002, Read, P.J., Claim No. 99062 [UID # 2002-001-501]).(7) Moreover, the Trooper's belief that the situation was not an emergency is not relevant to a determination of whether he was involved in an emergency operation, as defined by the statute (see Criscione v City of New York, supra; O'Banner v County of Sullivan, 16 AD3d 950 ; Smith v Hastings, 22 Misc 3d 1130 [A], 2009 NY Slip Op 50378 [U] ). The Trooper was "pursuing an actual or suspected violator of the law" (Vehicle and Traffic Law § 114-b), and he was therefore engaged in an emergency operation. The Court finds that because the Trooper was operating an authorized emergency vehicle which was involved in an emergency operation, defendant is entitled to the benefit of the provisions of Vehicle and Traffic Law § 1104, and cannot be held liable for the accident without proof that the Trooper acted with reckless disregard of the safety of others.
It is well settled that the reckless disregard standard requires more than mere negligence or a momentary judgment lapse, rather "[i]t 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 [internal quotation marks omitted]; see also Criscione v City of New York, supra; Szczerbiak v Pilat, supra).
In this case, all of the material facts are undisputed. The accident occurred at approximately 9:45 p.m. at the intersection of Route 14 and Wygant Road. Claimant was proceeding northbound toward the intersection at approximately 55 miles per hour, the apparent speed limit. The intersection was controlled with a traffic signal, and claimant had a green light. The Trooper, who had not activated his emergency lights or siren, was proceeding southbound, following the Subject Vehicle. At the intersection, the Subject Vehicle quickly pulled into the turn lane and made an abrupt left turn onto Wygant Road. The Trooper, who had slowed down to approximately 20 miles per hour as he approached the intersection, attempted to turn left onto Wygant Road so that he could follow the Subject Vehicle. Having not seen any cars proceeding in the northbound lane toward him, and also having a green light, the Trooper continued into the intersection and collided with claimant.
The sole issue before the Court relevant to determining both the motion and cross motion for summary judgment is whether the Trooper's conduct was reckless, as a matter of law. Keeping in mind that reckless disregard for the safety of others requires that the actor make "a deliberate decision to ignore a likely harm," the Court finds that the Trooper's conduct was not reckless as a matter of law (Soto v State of New York, Ct Cl, Sept. 17, 2008, Schweitzer, J., Claim Nos. 111499, 111500 [UID # 2008-036-407]). Given both that traffic on Route 14 was light and the weather was clear, the Trooper's failure to turn on his emergency lights before entering the intersection where he also had a green light, as well as his momentary lapse in judgment by looking but failing to see claimant's vehicle, "does not . . . rise to the level of 'reckless disregard' or conscious indifference required of the driver of an emergency vehicle in order for liability to attach" (Klein v State of New York, Ct Cl, Aug. 19, 2003, Mignano, J., Claim No. 102851 [UID # 2003-029-308]; see also Rusho v State of New York, supra).
Accordingly, claimants' motion for summary judgment is denied. Defendant's cross motion for summary judgment is granted and Claim No. 108993 is dismissed in its entirety.
October 13, 2009
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimants' motion and defendant's cross motion:
1) Notice of Motion filed on June 3, 2009; Affidavit of Adam M. Gee, Esq., sworn to on May 21, 2009, and attached Exhibits A through E; and undated Memorandum of Law received by the Chief Clerk on June 3, 2009.
2) Notice of Cross Motion filed on July 15, 2009; Affirmation in Opposition to Motion and In Support of Cross Motion for Summary Judgment of Joseph F. Romani, Assistant Attorney General, dated July 13, 2009, and attached Exhibits A through E; and Memorandum of Law dated July 13, 2009.
Filed papers: Claim filed on March 4, 2004; Verified Answer filed on April 12, 2004.
2. Claimant Barbara Steinhilper's claim is derivative in nature and, unless otherwise indicated or required by context, the term "claimant" shall refer to Gary Steinhilper.
3. Goeberts retired from the State Police in May 2005.
4. Defendant's argument - that the sole proximate cause of the accident was the erratic left-hand turn of the Subject Vehicle - is without merit. There is little doubt that the Trooper's conduct in entering the intersection and attempting to turn left was a substantial cause in bringing about claimant's injuries (see e.g. Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ).
5. Defendant's Cross Motion for Summary Judgment, Exhibit D, at 39.
6. Defendant's Cross Motion for Summary Judgment, Exhibit E, at 16.
7. Although the Trooper candidly stated that he had not decided whether he would issue a citation to the driver for having only one illuminated headlight, the defect clearly was a violation of Vehicle and Traffic Law § 375 (2) (a) (1), and constituted a legitimate reason to stop the vehicle (see e.g. People v Tittensor, 244 AD2d 784 ).