McLeod v State Of New York

[*1] McLeod v State Of New York 2005 NY Slip Op 50998(U) Decided on May 10, 2005 Ct Cl Patti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2005
Ct Cl

FRED M. McLEOD, Claimant,

against

THE STATE OF NEW YORK, Defendant.



105861



GIBSON, McASKILL & CROSBY, LLP

BY: CHARLES S. DESMOND, II, ESQ.

Attorneys for Claimant

HON. ELIOT SPITZER

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, Esq.

Assistant Attorney General

Attorney for Defendant

Philip J. Patti, J.

On March 16, 2005, the following papers were read on motion by Defendant for summary judgment dismissing the claim: Notice of Motion, Affirmation, Affidavit and Exhibits AnnexedAffidavit in OppositionReply AffirmationFiled Papers: Claim; Decision and Order in Motion Nos. M-67036 and CM-67072 and the Underlying [*2]Papers Therein

Upon the foregoing papers, this motion is granted.

In a decision and order in Motion Nos. M-67036 and CM-67072 dated February 5, 2004, inter alia, I denied without prejudice the State's motion to dismiss, which relied upon the holding of the Court of Appeals in Riley v County of Broome (95 NY2d 455), to allow Claimant the opportunity to depose Michael F. Witkowski, Jr., the driver of the snowplow in question. I noted then that the issue would be a determination of whether the snowplow was "actually engaged in work on a highway" under Vehicle and Traffic Law §1103(b), entitling it to be subject to the same recklessness standard applicable to emergency vehicles.

The Defendant previously supplied Witkowski's affidavit, which asserted that he was in the course of engaging in snow removal operations but had raised the plow and wings as he was preparing to enter into the intersection to make a left-hand turn. Claimant has since deposed Witkowski, and the Defendant renews its motion for summary judgment dismissing the claim, adding the transcript of Witkowski's deposition to its previous motion papers in support.

The incident in question occurred on February 27, 2002 at approximately 9:30 p.m.[FN1] in the Town of Arcade when Mr. Witkowski, an employee of New York State, was driving a snowplow and was heading westbound on State Route 39, which had two lanes in each direction. He was in the left-hand lane, had his left turn signal engaged and was stopped, waiting at a red light. When the light turned green, he moved some 50 feet to the middle of the intersection, waiting for traffic to clear so that he could make the left turn, heading southbound on Route 98, which had a single lane in each direction. Witkowski was waiting for what he estimated to be 30 seconds when, after three cars in the curb lane in the eastbound direction proceeded to make right-hand turns, the next car (a red Grand Am) flashed its headlights at him, impliedly a signal encouraging the snowplow to proceed to make the left turn. Witkowski testified that he hesitated, as if unsure of the meaning of the flashing lights, but that the driver of the vehicle opened the window and waved him to go on and make the turn. Witkowski testified [*3]that he saw two additional cars stopped directly behind the red Grand Am in the curb lane. He started to make his left turn and ended up in a collision with Claimant's vehicle (a white Toyota Tacoma) which appears to have been in the passing (non-curb) lane of Route 39 eastbound. There was some question whether Claimant's vehicle had been driving in the curb lane initially and then shifted over to the passing lane as Witkowski started to make his left-hand turn. Resolution of that issue, however, is not required for my decision today.

Both parties agree that the determinative question is whether the Witkowski snowplow was "actually engaged in work on a highway" under Vehicle and Traffic Law §1103(b), entitling it to be subject to the same recklessness standard applicable to emergency vehicles. The "reckless disregard" standard of care "demands more than a showing of a lack of 'due care under the circumstances' the showing typically associated 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 [citations omitted]" (Saarinen v Kerr, 84 NY2d 494, 501). Claimant does not argue or dispute that even though Witkowski's actions might constitute ordinary negligence for the putative failure to have yielded the right-of-way, they do not reach the statutory threshold of recklessness. The Defendant seeks summary judgment, as a matter of law, that Witkowski was indeed engaged in work on a highway, is therefore entitled to the recklessness standard of §1103(b), and as such, the State cannot be held answerable in damages. Thus, if I find that the statute does apply, the claim must be dismissed.

Summary judgment is a drastic remedy that should only be granted when no material and triable issue of fact is presented (Taft v New York City Tr. Auth., 193 AD2d 503, citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). To warrant summary judgment, "there must be only one conclusion that can be drawn from the undisputed facts" (Sanchez v State of New York, 99 NY2d 247, 254). While summary judgment is not frequently granted in negligence cases, as they typically involve numerous factual issues, including whether the Defendant's actions were reasonable (Rubin v Reality Fashions, 229 AD2d 1026), it is nevertheless appropriate where there are no factual issues that must be resolved by a trial (Pencola v Stefanich, 244 AD2d 999).

Claimant's contention is that when the snowplow was stopped at the traffic light, the plow and wing plow were raised off the ground and no plowing was taking place, and that no salt or sand was being dispensed since it was only dispensed when the snowplow was in motion and moving forward.[FN2] Thus, from the initial stop at the red light, and for the 50 or so feet that Witkowski drove the snowplow toward the intersection, and continuing until the collision, the plow and wing plow stayed elevated, because as Witkowski testified, he did not want to create a wind row (line) of plowed snow through the intersection to serve as an obstruction to crossing traffic.

Claimant thus submits that, because the plow and wing plow were raised and salt/sand was not being dispensed as Witkowski was stopped at the intersection making the left-[*4]hand turn, there is a question of fact as to whether Witkowski was "actually engaged in work on a highway" at the time of the accident. However, the issue raised is not a factual dispute, but rather whether the undisputed facts regarding Witkowski's actions constitute, as a matter of law, actually engaging in work on a highway.

The issues at law here revolve around the decision of the Court of Appeals in Riley v County of Broome (95 NY2d, 455, supra), and its progeny. The Court of Appeals affirmed that a snowplow (the offending vehicle in the underlying case of Wilson v State of New York, decided therewith), was exempt from the rules of the road if it was "actually engaged in work on a highway" (Vehicle and Traffic Law §1103[b]). In affirming the Fourth Department's decision in Wilson v State of New York, where the plow in question was "...plowing snow on a highway at the time of the accident..." (269 AD2d 854), the Court of Appeals noted that the snowplow was "involved in work on a highway" (95 NY2d 455, 460), "clearing the road during a snowstorm" (id. at 463), and thus it was "actually engaged in work."

This matter is readily distinguishable from my recent opinion in Santillo v State of New York (Ct Cl, UID No.2004-013-041, [Claim No. 106133 - Motion No. M-66809], July 22, 2004)[FN3], where I found material factual questions as to whether just driving the snowplow back to the shop to fill it with salt, and whether its revolving flashing lights were operating, fall within the penumbra of being "actually engaged in work." In that same decision I referenced my earlier opinion in Quackenbush v State of New York (Ct Cl, UID #2000-013-022 [Claim No. 95363 - Motion No. M-61609], Sept. 5, 2000), where I reviewed nuances in adjudging whether certain conduct comports to the actual engagement standard and noted that the addition of the adverb "actually" to modify the verb "engaged" led to the conclusion that the phrase "actually engaged" therefore suggests that the "work" on the highway is "in fact" taking place at the time of the incident and that the vehicle is directly "involved in" the work's performance, and that nothing in the legislative history of Section 1103(b) suggested that the Legislature made any changes to expand the exemption to include travel to and from the work site or other peripheral activity.

But I also agree with Judge Francis T. Collins in McDonald v State of New York (176 Misc 2d 130) that there was an adequate nexus shown between that snowplow's U-turn across the median of Interstate 81 and its completion of ongoing snowplowing activity. Judge Collins found that that operator made the U-turn while "halfway through completing her plowing 'beat'," and was engaged in the process of snow removal, and hence in work. Although I distinguished McDonald, id., in Santillo (supra), because that finding was made after a trial and there were unresolved factual issues, there are no such factual disputes here.

Judge Collins revisited these issues in Dumoulin v State of New York (Ct Cl, UID #2004-015-415 [Claim No. 107300 - Motion Nos. M-68375, CM-68516], Aug. 9, 2004, Collins, J.), where he observed: It matters not whether he was actually plowing or dispensing salt at the precise moment of impact. Unlike in Marvin v Town of Middlesex [2002 WL 58928, affd 300 AD2d 1112] the operator here was [*5]assigned the duty of maintaining a specific portion of I-87. That duty related directly to the subject roadway and it was while he was engaged in carrying out his responsibilities that the contested actions took place. As a result, the Court finds as a matter of law that at the time of the accident at issue herein the snowplow was "actually engaged in work on a highway"...

Unlike McDonald v State of New York (176 Misc 2d 130, supra), where the decision was rendered after a trial, the holding in Dumoulin resulted from a summary judgment motion. And similar to the claim at bar, the driver in Dumoulin "appears to have been negligent when measured against an ordinary negligence standard of care, [but] it did not amount to reckless disregard for the safety of the claimants." The driver there either failed to properly check for traffic approaching, or miscalculated the speed of the approaching vehicle or erroneously assumed that he could successfully maneuver his vehicle across the travel lanes to the crossover without incident, but the Court held that "[s]uch conduct constitutes a simple misjudgment... which while potentially negligent does not rise to the level of intentional conduct of an unreasonable character in disregard of a known and obvious risk of probable harm accomplished with conscious indifference to the outcome (see Szczerbiak v Pilat, 90 NY2d 553)" (Dumoulin v State of New York (Ct Cl, UID #2004-015-415 [Claim No. 107300 - Motion Nos. M-68375, CM-68516], Aug. 9, 2004, Collins, J.).

Judge Judith A. Hard, in deciding Leonard v State of New York and New York State Thruway Auth. (Ct Cl, UID #2004-032-123 [Claim No. 107659 - Motion No. M-68824], Dec. 14, 2004, Hard, J.), rejected those claimants' assertion that summary judgment was inappropriate because of purportedly unresolved questions of material fact, including the exact position of the snowplow and blade at the time of the accident and whether the truck was moving or stationary at the time of the accident. She noted that while: ...the proof must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The moving party must make a prima facie showing of entitlement to judgment as a matter of law, proffering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).... [f]or liability to be imposed when the vehicle in question is one that is actually performing road work, intentional conduct and a far greater probability of harm is required. Therefore, even if [*6]all the relevant facts are viewed in the light most favorable to claimants and the actions of the defendants' employees were considered to be negligent, they represented at most ordinary negligence and would be insufficient to meet the statutory requirement that reckless disregard be proven. (See, e.g., Erie Insurance a/s/o Schoen Place Auto v State of New York, UID #2004-031-103, Claim No. 107974, Motion No. M-68681, August 30, 2004, Minarik, J. [summary judgment dismissing claim in which it was alleged that snowplow operator failed to see a vehicle and pushed it into a guide rail]... Nationwide v New York State Thruway Authority, UID #2002-031-046, Motion No. M-65187, September 23, 2002, Minarik, J. [motion to late file denied on ground that there was no merit to a claim alleging a snowplow operator initiated an unsafe lane change and struck another vehicle]... [certain citations omitted].

Claimant pins his hopes on the absence of a statutory definition of "actual work on a highway," and suggests that the courts have not defined the same. I disagree, as demonstrated by the cases noted above and continuing judicial evolution. No matter how liberally one interprets the statute so that it inures to Claimant's benefit, when Witkowski momentarily stopped and obeyed the traffic signal and lifted the plow and wing plow while making the turn at the intersection in question, he was in the middle of a plowing and salting "run" or "beat" that went from Java Center to the Cattaraugus County line on Route 39, and Route 98 south to the Cattaraugus County line and back again. I find that as a matter of law he was actually engaged in work on a highway for purposes of Vehicle and Traffic Law §1103(b).

Accordingly, in the absence of proof demonstrating reckless disregard for the safety of others, Defendant's motion for summary judgment dismissing the claim must be and hereby is granted.

Dated:Rochester, New York

May 10, 2005

PHILIP J. PATTI

Judge of the Court of Claims Footnotes

Footnote 1:The papers before me reflect some confusion about the time of the accident. The Notice of Claim (sic, should be claim) alleges the date, albeit without a time; Claimant's bill of particulars alleges 9:35 p.m., and the Witkowski affidavit recites that the accident occurred at about 9:30 p.m. However, in his deposition, Witkowski responded affirmatively to Claimant's counsel's question whether the accident "happened about 8:30 in the evening" (deposition p.19, lines 15-17). Witkowski again responded affirmatively to counsel's question, evincing confusion between military time and civilian time, "... it happened at 20:31 or 21:30 .... that would be approximately 8:30 in the evening, correct?" ( p. 27, lines 6 - 10). Later counsel asked Witkowski when he had been through the intersection in question for the last time that evening, and, after Witkowski answered "maybe 9:30," counsel asked whether the accident "happened at 8:30 at night," to which Witkowski responded affirmatively (p 47, lines 3 to 7). The time confusion appears to be of no consequence for purposes of this motion, and neither of the parties has commented upon it, but at a minimum it bears mention.

Footnote 2:Witkowski testified that salt/sand would start being dispensed after the snowplow moved some two feet from a standing position.

Footnote 3:Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.