New York State Court of Claims

New York State Court of Claims
PETTA-MULLER v. THE STATE OF NEW YORK, # 2010-030-018, Claim No. 113710


State of New York 80% responsible; claimant 20% responsible for accident in State police vehicle. Claimant transported in handcuffs in State police vehicle from one barracks to another, without being belted in by troopers. Claimant seriously injured as a result when the trooper lost control of the car he was recklessly operating and struck a utility pole.

Case information

UID: 2010-030-018
Claimant short name: PETTA-MULLER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113710
Motion number(s):
Cross-motion number(s):
Claimant's attorney: JEFFREY A. MANHEIMER, ESQ.
Third-party defendant's attorney:
Signature date: June 22, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Hugo Petta-Muller(1) alleges that on April 1, 2007, while being transported in handcuffs from the State Police barracks in Somers, to State Police barracks in Brewster in a police vehicle recklessly operated by New York State Trooper Come N. Ketchakeu, he sustained a serious injury when the trooper lost control of the car and struck a utility pole. This decision relates only to the issue of liability, determined after a bifurcated trial, held on January 6 and 7, 2010, and after submission of posttrial memoranda.

Trooper Ketchakeu and Trooper Caryjoy Refazo were probationary State Troopers stationed for one of their first assignments at Troop K, in Somers, New York, on April 1, 2007. They were members of the same academy class, and had been employed as State Troopers since May 2006. Trooper Ketchakeu testified that he completed his six (6) months' State Police Academy training in November 2006.

Trooper Ketchakeu was partnered with Trooper Refazo on radar duty facing southbound traffic on I-684 at 3:00 a.m. on April 1, 2007, when Mr. Petta-Muller was clocked driving at 100 miles per hour. The troopers pulled him over, and Trooper Ketchakeu observed signs of intoxication, including bloodshot eyes, and alcohol on his breath when he asked for claimant's license and registration. Claimant was alone in the car, and reported having consumed one drink - vodka with red bull - and that he was heading home from a dinner visit with friends at a restaurant in Connecticut, after an aborted attempt to attend a hockey game. Claimant indicated in later testimony that he also had wine with his late dinner.

Trooper Ketchakeu asked claimant to exit the vehicle. The trooper recalled at trial asking claimant to perform several field sobriety tests. Based upon his observations, Trooper Ketchakeu concluded that claimant was "driving while intoxicated with alcohol" [DWI] and, after frisking him for weapons, claimant was rear-handcuffed, and placed in the back seat on the passenger side of the vehicle for transport to State Police quarters in Somers. Either Trooper Ketchakeu or Trooper Refazo seat-belted claimant in the back seat.

They arrived at Somers at 3:30, 3:45 (2) a.m., and took claimant to the squad room. [T-31]. He did not exhibit any belligerence or slurring of speech or difficulty standing or walking. When they tried to get a breath sample utilizing the Breathalyzer available at Somers, however, the equipment was not functioning. Accordingly, their Sergeant told them to transport claimant to Brewster where other equipment was available.

Mr. Petta-Muller was returned to the back seat of the same patrol car, in rear handcuffs, but was not seat-belted by either trooper. Claimant did not ask the troopers to fasten his seat belt. Both troopers acknowledged that a failure to seat belt the claimant was in violation of their training as memorialized in the New York State Police Field Manual [Exhibit 13], and both acknowledged that they received a letter of censure(3) from their superiors thereafter as a result of this omission. Trooper Ketchakeu testified that one of the purposes of the section of the Field Manual was to keep people being transported safe should the vehicle be involved in an accident.

Although the weather was clear and dry, it was still very dark out at 4:00 a.m. as they left. Trooper Ketchakeu did not recall when (or if) he had taken the route from Somers to Brewster before that night, although Trooper Refazo was familiar with the route. Trooper Refazo sat in the front passenger seat, and gave directions when necessary saying it was "because we were going to miss the turn" in one instance. [T-205]. No emergency lights or sirens were turned on.

When they left the barracks, Trooper Ketchakeu drove northbound on Route 100, then eastbound on Route 202, then southbound on Route 22, intending to take I-684 north to Brewster. Had they not gotten into an accident, their destination was approximately 25 minutes away. Had there been no accident, they would likely have arrived at the Brewster barracks by approximately 4:30 a.m., according to Trooper Refazo, as well as the timeline presented by Trooper Ketchakeu's testimony.

Route 22 is a two-lane winding road in the area they traversed, with one travel lane in each direction. A "curvy, curvy road" in Trooper Refazo's words. [T-206]. The posted speed limit for parts of Route 22 is between 30 and 35 miles per hour, and additional signage warns of curves in the road ahead, and associated reductions in speed to 25 miles per hour. The road was largely unlit. Within fifteen minutes of leaving the barracks, and while driving at a speed of between 50 miles per hour and 90 miles per hour - depending on the source of the testimony - Trooper Ketchakeu failed to negotiate a curve in the road on Route 22, just before he would have broken off to get on I-684 north, losing control of the car and striking a utility pole. He struck the utility pole with sufficient force to break it apart entirely, so that it hung suspended from the wires it serviced into the lanes of travel. [Exhibits 5, 6, 8, 17, 18 and D ] Skid marks show tires swerving across a narrow dirt shoulder into a stone wall [Exhibits 5, 6, 7, 15], and the remains of the utility pole post. [Exhibit C]. Trooper Ketchakeu recalled the air bags deploying. Trooper Refazo claimed he did not recall whether the air bags deployed, although photographs of the crushed passenger side of the vehicle from which Trooper Refazo could not exit without assistance [Exhibits 14, 16, 19, 20, 21] clearly show a deployed air bag. [Exhibits 14, 19].

All were transported by ambulance away from the scene, and the troopers prepared reports. [See Exhibits 9 and 10]. At the hospital, a blood sample taken from Mr. Petta-Muller sometime after 5:00 a.m. showed a blood alcohol content of .037, which would have supported a driving while impaired conviction according to Trooper Ketchakeu (although not a DWI charge presumably). See Vehicle and Traffic Law 1192 (1),(2) and (3).

Trooper Ketchakeu's assessment of the need to get to the Brewster barracks promptly was based upon his understanding that in order to more easily secure a conviction for DWI, any chemical testing needed to be performed within two hours of the suspect's arrest. Assuming an arrest at 3:00 a.m., in his view they needed to obtain a blood sample by 5:00 a.m. It is noted that the rationale for this two-hour rule stems from certain presumptions concerning consent to such testing by all citizens who have driver's licenses under the Vehicle and Traffic Law. The pertinence to the claim before this Court is that neither trooper asked Mr. Petta-Muller if he would voluntarily provide a breath sample or a blood sample. Ultimately, the speeding charge was disposed of with a fine, and the DWI charge(4) was dismissed. [Exhibit 11].

As they drove from Somers, claimant testified that he was very concerned by the speed, and said as much to Trooper Ketchakeu, although Trooper Ketchakeu did not acknowledge in his testimony that there had been any plea to slow down. Mr. Petta-Muller testified that the trooper drove as high as 90 miles per hour, based upon his observation of the needle-type speedometer he could see from the back seat. He said it was often in the straight-up position.

Trooper Refazo recalled some minimal colloquy between Trooper Ketchakeu and claimant, and recalled claimant asking the driver to slow down, but only while they were still on Route 100. Trooper Refazo said he himself never asked Trooper Ketchakeu to slow down on Route 22 because he "believe[d] he was driving in a safe manner just so we [could] make that two-hour window to Brewster." [T-192]. Trooper Refazo concurred that there was a needle-type speedometer in the car which, given claimant's approximate height of 6' 4" could be seen from the back seat, but reported that the highest speed Trooper Ketchakeu drove was 65 miles per hour. Trooper Refazo said that at the time Trooper Ketchakeu lost control on the curve, drifted to the right and into the utility pole, he was driving between 50 and 55 miles per hour. From the time the car drifted to the right until it came to rest the car traveled "30, 40 feet" Trooper Refazo said. [T-214]. He agreed there was a "fairly significant impact" between the car and the utility pole. [T-217].


After carefully considering the evidence submitted and after having the unique opportunity to listen to the witnesses' testimony and observe their demeanor as they did so, and in considering the respective burdens of proof, the Court finds that claimant has established by a preponderance of the credible evidence that the State of New York is in part responsible for this accident and any injury to claimant proximately caused.

As an initial matter, clearly the provisions of Vehicle and Traffic Law 1104(5) - whereby police vehicles [see Vehicle and Traffic Law 101(6) ] involved in an emergency operation [Vehicle and Traffic Law 114-b(7) ] may avoid penalties associated with failures to obey the rules of the road unless the vehicles are operated with "reckless disregard for the safety of others" [Vehicle and Traffic Law 1104 (e)] - are applicable.

It is self-evident that the vehicle at issue is an authorized emergency vehicle [Vehicle and Traffic Law 101] and that an emergency operation includes the transportation of prisoners. Vehicle and Traffic Law 114-b; Church v City of New York, 268 AD2d 382 (1st Dept 2000).

If responding to a police call is the predicate for the emergency operation (as opposed to involvement in a chase), Courts may look at the type of call as one measure of recklessness. For example, when a police officer responded to a police call concerning an intoxicated customer at a bar by driving 70 miles per hour through a lightly traveled village while knowing that another officer was already responding, the routine nature of the call was a factor in determining that the police officer's conduct was in reckless disregard for the safety of others. See Allen v Town of Amherst, 8 AD3d 996 (4th Dept 2004); see also O'Banner v County of Sullivan, 16 AD3d 950 (3d Dept 2005).

Here the only predicate for the applicability of the activity as an "emergency operation" under the statute was to transport a prisoner for the purposes of testing within a certain time frame. It was not a response to a police call. It was not a matter of chasing a dangerous suspect or preventing a crime in progress. The whole purpose of the transport was to obtain a test that would facilitate an easier prosecution and conviction for the suspected criminality. Such testing, however, was certainly not an absolute necessity for obtaining a conviction for this type of proscribed conduct. See People v Atkins, 85 NY2d 1007, 1008-1009 (1995).(8) Indeed, in prosecutions for DWI based upon statutory blood alcohol percentage prohibitions, untimely blood testing appears to have been construed as pertinent to the weight - not the admissibility - of the evidence. See e.g. People v D.R., 23 Misc 3d 605, 611 (Sup Ct, Bronx County 2009);(9) see also People v Marietta, 18 Misc 3d 1109(A) (Sup Ct, Kings County 2007), affd 61 AD3d 997 (2d Dept 2009). As a reason for driving with an unrestrained rear-handcuffed prisoner at almost twice the posted speed limits (at least) on a dark and winding road with narrow shoulders, when travel at a more moderate speed would have resulted in a timely arrival, the perceived need for a blood test caused the trooper to engage in "disproportionate, overreactive conduct." Campbell v City of Elmira, 84 NY2d 505, 512 (1994)

In Campbell v City of Elmira, supra, 511-513 (1994) the Court of Appeals pointed out that how the "reckless disregard" standard would be applied to the case before it involving the actions of a fire truck, on appeal after a jury trial, and the standard as applied on motion for summary judgment in Saarinen v Kerr, 84 NY2d 494 (1994), involving the actions of a police car chasing a drunk driver, presented different procedural and substantive postures, among other things. The Court said:

"Our decision that the evidence at this trial rationally supports the jury's conclusion respects the jury's deliberations in weighing and resolving disputed fact and credibility questions, and in arriving at its judgment that defendant's driver acted intentionally, while aware of a grave risk which he consciously disregarded and knowingly ignored in a circumstance of high probability that harm would ensue. From evidentiary rooted findings, the jury could rationally have concluded that the experienced fire truck operator intentionally violated the statutory mandate when he recklessly flaunted the risks of proceeding in an emergency setting into an intersection against a red traffic light, indifferently and in disregard of any modicum of statutorily required attentiveness (see also Vehicle and Traffic Law 1104[b][2]; 1144[b] ).

. . . [T]his is not a case where the fire truck driver fulfilled his corresponding part of the statutorily imposed obligations to take nonreckless safety and due care precautions for others, in order to avail himself of the emergency right-of-way dispensation from observing usual traffic controls. This is not simply a case of a driver running a red light and committing mere negligence. This case is about the jury's consideration and resolution of defendant driver's more flagrant, nuanced and complex, conscious violation of Vehicle and Traffic Law 1104(e). Our disagreement with our dissenting colleagues in this case, thus, turns essentially, indeed solely, on the application of the particular statutory standard of care.

* * * * *

On the one hand, the more rigorous standard before allowing for municipal liability arising out of emergency circumstances accommodates the realities of the dangerous conditions encountered by officers in performing their municipal duties with necessary dispatch and dispensation from ordinary care. On the other hand, though, the Legislature retains and recognizes the potential for liability as a protection for the general public against disproportionate, overreactive conduct. Conduct measured against such a calibrated formulation is not always or easily resolvable as a matter of law without some appropriate fact-finding forum and process, any more than simple negligence usually is. The more rigorous statutory test before allowing liability thus retains some incentives for moderating and deescalating the already dangerous situations when emergency personnel are engaged in their valiant and important services. Thus, while the Legislature shields municipalities from simple negligence and mere errors in judgment, it also protects innocent victims and the general public by expressly not relieving emergency operators and their municipal employers of all reasonable care ( see Vehicle and Traffic Law 1104[e] [employing reckless disregard, and not intentional harm, standard for imposing liability]; see also Vehicle and Traffic Law 1104[b][2] [under emergency conditions, emergency vehicle driver may proceed past red light "only after slowing down as may be necessary for safe operation"]; Vehicle and Traffic Law 1144[b] [while emergency vehicle operator has right of way, emergency driver is not relieved of duty to drive with reasonable care for all persons using the highway] )."

Liability is not imposed for a "momentary judgment lapse". See Green v State of New York, 71 AD3d 1310 (3d Dept 2010). Thus a police officer who assumed that a car was actually stopped when he started to execute a U-turn was found to have suffered a momentary lapse in judgment given other evidence of precautions he took prior to moving his car. [Id.]. Recklessness "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 . . . (citation omitted)." Saarinen v Kerr, 84 NY2d 494, 501 (1994). What constitutes reckless conduct clearly varies depending on the situation faced by the actor.

It is the claimant's burden to establish his cause of action by a preponderance of the credible evidence. Claimant was a credible witness at times, and at others seemed prone to exaggerate. The troopers, too, were selectively credible. Because there was no expert testimony to differentiate between what might result from a crash into a utility pole at 90 miles per hour, versus a crash into a utility pole at 50 miles per hour, by either party, the Court has chosen to treat the evidence as showing that the vehicle was traveling at between 50 and 55 miles per hour, the speed conceded to by the troopers. On the whole, on the issue as to whether the trooper proceeded with reckless disregard for the safety of others, claimant has sustained his burden of proof.

Based on the evidence before this Court, both troopers were aware that the use of a seat belt(10)

was required when transporting a prisoner and, indeed, had shown their awareness when they initially stopped the claimant and placed him in their vehicle. Trooper Ketchakeu knew that one of the reasons for placing restraints on an individual being transported was the likelihood of injury in the event of an automobile accident. The failure to ascertain whether claimant was placed in restraints for the subsequent transport to Brewster on the part of both responsible troopers, coupled with the travel at an excessive rate of speed - whether Trooper Ketchakeu was traveling at the more minimally described 50 miles per hour, or the 90 miles an hour ascribed to him by claimant, the speed was clearly excessive for the conditions - shows an intentional and unreasonable disregard for an obvious risk of harm. Both troopers, as the State's agents, were responsible for maintaining a measured response to the situation facing them, and to provide a "check" on any disproportionate behavior on the part of his partner. While failing to turn on sirens or emergency lights was not of significance with regard to the mechanics of this accident, the failure to take such minimal precautions with regard to the safety of others who might be on the road also shows a conscious disregard of a foreseeable risk of harm. Under the totality of the circumstances, Trooper Ketchakeu proceeded with reckless disregard for the safety of his passenger, and any others in his path.

By the same token, claimant is in part responsible for failing to alert the troopers right away to the fact that he was not restrained in a seat belt when he was placed in the vehicle. Indeed by his own testimony he never asked to have his seat belt fastened at any time during the trip.

Based on the foregoing, the Court finds that the State of New York is liable for the reckless conduct of its agent, and in apportioning responsibility for this accident finds that the State of New York was 80% responsible for the accident, and the Claimant was 20% responsible.

The Clerk of the Court is directed to enter interlocutory judgment in accordance with this decision. Trial on the issue of damages shall be held as soon as practicable.

June 22, 2010

White Plains, New York


Judge of the Court of Claims

1. Any references to claimant herein are to Mr. Petta-Muller alone, as the claim of Shana Brown is strictly derivative.

2. All quotations are to the trial transcript [T-], unless otherwise indicated.

3. Exhibit 12 is a photocopy of Trooper Ketchakeu's letter of censure dated June 26, 2008.

4. The charge noted on the certificate of disposition [Exhibit 11] is so-called "common law" DWI, which does not necessarily require blood alcohol analysis for a conviction, but does require proof beyond a reasonable doubt of intoxication. Such proof can generally be provided by credible testimony. Trooper Ketchakeu did not testify at any criminal proceeding.

5. Vehicle and Traffic Law 1104, entitled "Authorized emergency vehicles", provides:

"(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:

1. Stop, stand or park irrespective of the provisions of this title;

2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

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

4. Disregard regulations governing directions of movement or turning in specified directions.

(c) Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary . . .

* * * * *

(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 provisions protect the driver from the consequences of his reckless disregard for the safety of others."

* * * * *

6. Vehicle and Traffic Law 101, defining "Authorized emergency vehicle" provides:

"Every ambulance, police vehicle or bicycle, correction vehicle, fire vehicle, civil defense emergency vehicle, emergency ambulance service vehicle, blood delivery vehicle, county emergency medical services vehicle, environmental emergency response vehicle, sanitation patrol vehicle, hazardous materials emergency vehicle and ordnance disposal vehicle of the armed forces of the United States."

7. Vehicle and Traffic Law 114-b, defining "Emergency operation" provides:

"The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service."

8. The criminal defendant's motion to suppress the results of a blood test performed on him was properly denied where defendant consented within two hours of his arrest to have the test performed, although the test itself was not administered until after the two-hour period. "It follows from our [previous] decision . . . that the two-hour limitation contained in Vehicle and Traffic Law 1194 (2) (a) has no application here where, as found by Appellate Term, defendant expressly and voluntarily consented to administration of the blood test."

9. "[C]oncern with the use a jury may make of the results of a test voluntarily taken more than two hours after arrest is, of course, legitimate, but this issue goes to the weight rather than admissibility of such evidence. While one or both parties can, and in some cases, should call an expert to testify at trial concerning this issue, and, with or without expert testimony, can raise it through cross-examination and argue it to the jury, a pretrial hearing is simply not mandated."

10. Vehicle and Traffic law 1229(c)(8) provides: "Non-compliance with the provisions of this section shall not be admissible as evidence in any civil action in a court of law in regard to the issue of liability but may be introduced into evidence in mitigation of damages provided the party introducing said evidence has pleaded such non-compliance as an affirmative defense."

While it is true that this statute barred parents of a five-year-old child, who was injured in an automobile accident, from alleging that the driver of the vehicle in which the child had been riding was negligent in allowing the child to ride in the back seat of the vehicle without wearing a safety belt [see Baker v Keller, 241 AD2d 947 (4th Dept 1997)]; and evidence that a motorist operated a car without using a seat belt to restrain an eight-year-old backseat passenger, was not admissible in a suit brought on behalf of the child for injuries sustained in a motor vehicle accident [see Hamilton v Purser, 162 AD2d 91(3d Dept 1990)]; such statutory prohibitions do not apply with regard to a 16-year-old backseat passenger [see Stewart v Taylor ,193 AD2d 1078 (4th Dept 1993)] nor does it seem pertinent to the reason why the lack of use is noted here: that the lack of use should have been part of what was factored into the trooper's conduct in driving at an excessive rate of speed.