A bifurcated trial concerning the issue of liability only was held in this
matter on October 22, 2008. The subject claim arose on August 2, 2005 at
approximately 7:15 p.m. when a New York State Police vehicle came into contact
with claimant, Carlos Alvarez-Canel, while Mr. Alvarez-Canel was walking across
Claimant did not testify at the trial, however his deposition transcript was
admitted into evidence.
He testified at his
deposition that on the day of the accident he was returning from work on a bus.
He exited the bus at approximately 6:15 p.m. at the stop in front of a
McDonald’s in Riverhead on Route 24. He described the weather conditions
as perfect and stated that it was only a “little bit” light out.
After exiting the bus he walked alongside Route 24 approximately thirty meters
toward the Flanders traffic circle before he began to cross Route 24. Claimant
testified that he crossed Route 24 every day at the same location for several
months prior to the accident. The location where he crossed the street was not
marked as a pedestrian crosswalk. He described the traffic on Route 24 on the
date of the accident as heavy and as moving slowly. Claimant stated that
immediately prior to the accident he walked across one lane of traffic and then
stopped on the solid yellow line in the middle of the street. He explained that
he waited on the yellow line for a break in the traffic in front of him, which
was approaching from his right, so that he could finish crossing the street. He
stated that he was only looking to his right and when there was a break in the
traffic he proceeded to cross the street. Upon crossing the street he testified
that he felt an impact. He testified that he did not see the vehicle that
collided into him. He also testified that he did not see any lights or sirens
prior to the impact.
Defendant called State Police Trooper Charles Knapp Jr. to testify at trial.
Trooper Knapp has been employed by the New York State Police since 1998. He has
worked there continuously except for the time period when he was activated to
the Military Security Police from 2001 to the end of 2002. He is currently
stationed in Riverhead in the Town of Southampton. He testified that on August
2, 2005 he was working on a flex tour from 12:00 p.m. to 12:00 a.m. patrolling
Riverhead in a vehicle by himself. He testified that he received a radio call
that a stolen vehicle with passengers was stopped on Lake Avenue off the
Flanders traffic circle. In response he activated his lights and sirens and
proceeded North on Route 24. He described Route 24 as a North/South two-lane
street with a middle turning lane and no shoulder. He explained that at the
time of the accident traffic was backed up, so he drove in the middle turning
lane with his lights and sirens on at approximately fifteen to twenty miles per
hour. He stated that there was a forty miles per hour posted speed limit on
Route 24. As he was driving he heard a “loud thump” and immediately
stopped, turned off his lights and sirens, exited his vehicle, looked underneath
and saw an Hispanic male. He testified that he did not observe claimant prior
to the impact. He continued that when he examined his vehicle after the
accident he noticed that the right spot light was missing and the right
rearview mirror was dislodged. Trooper Knapp stated that he advised police
headquarters of the accident and requested an ambulance for claimant. Trooper
Knapp also testified that there was a pedestrian crosswalk approximately one
mile from where claimant exited the bus.
Defendant submitted into evidence the supporting affidavits of Peter N.
Kromhout who witnessed the accident (see Def Exh H). In his affidavit Mr
Kromhout stated, inter alia, that he observed an Hispanic male cross into
the center turning lane and then strike the side of a New York State Police
vehicle. Mr. Kromhout observed a police vehicle driving in the center turning
lane with its emergency lights on prior to the accident. Additionally, the
supporting affidavit of James W. Felton was submitted (see Def Exh I).
Mr. Felton stated, inter alia, that while his vehicle was stopped in
traffic on Route 24, he observed a police vehicle proceeding in the turning
lane. He also observed an Hispanic male appear in front of his vehicle, who
then stepped into the middle of the roadway without looking. Mr. Felton stated
that he heard the sound of what he believed to be the man he saw in front of his
vehicle being struck by the police vehicle.
Vehicle and Traffic Law § 1104(b) permits the driver of an authorized
emergency vehicle to proceed past a red light or stop sign, exceed posted speed
limits and disregard regulations governing directions of movement or turning
directions. However, the driver still has the duty to drive with due regard for
the safety of all persons and is not relieved from the consequences of his or
her reckless disregard for the safety of others. The standard of reckless
disregard requires more than a showing of lack of due care under the
circumstances. “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, 84 NY2d 494, 501 , quoting Prosser and Keeton,
Torts § 34, at 213 [5th ed]).
Claimant has failed to establish that defendant acted with reckless disregard
for the safety of others. The credible evidence at trial established that
Trooper Knapp was driving in the center lane, that he was driving well below the
posted speed limit and that he had activated his lights and sirens when he began
his response to the police call. Additionally it was established that claimant
was not within the crosswalk at the time of the accident and that claimant was
injured when he attempted to cross Route 24 in the middle of the street where an
approaching vehicle would not expect to encounter a pedestrian (see
Vehicle and Traffic Law § 1152; Johnson v Lovett, 285 AD2d 627 [2d
Based upon the foregoing, the Court finds that claimant has failed to prove, by
a preponderance of the credible evidence, that defendant’s agent acted in
reckless disregard of the safety of others while he was responding to an
emergency in this action. Accordingly, the claim is hereby dismissed in its
entirety. Any motion upon which the Court had previously reserved or which
remain undecided are hereby denied.
The Clerk of the Court of Claims is directed to enter judgment