Frens v State of New York

[*1] Frens v State of New York 2006 NY Slip Op 51994(U) [13 Misc 3d 1226(A)] Decided on August 21, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2006
Ct Cl

Jason M. Frens, Claimant,

against

The State of New York, Defendant.



98731



Appearances:

For Claimant:

David J. Seeger, Esq.

Leigh E. Anderson, Esq.

For Defendant:

Hon. Eliot Spitzer

Attorney General of the State of New York

By: William D. Lonergan, Esq.

Assistant Attorney General

Philip J. Patti, J.

This claim arises out of an incident that occurred on April 4, 1997, when it is alleged that Claimant Jason Frens, a Native American, was struck by a New York State Police vehicle on the Tonawanda Reservation (Reservation) of the Seneca Nation. The trial of this claim was bifurcated, and this decision is limited to issues of liability only.

A little background is necessary in order to understand the emotions surrounding this occurrence. At the time the Defendant State of New York was considering legislation which would have eliminated the tax exempt status of Native Americans relating to the sale of gasoline and tobacco items. There were ongoing demonstrations on several reservations in the Southern Tier and Western New York area, some of which were peaceful, while others involved various degrees of public disorder including the burning of tires on a state highway. I hasten to point out that on the Tonawanda Reservation where this incident occurred, the proof establishes that up to the day in question no violent demonstrations had occurred. I do not imply from this that the feelings against any measures relating to the elimination of the tax exempt status contemplated by the State were measurably different here than at other reservations affected, since the result of such an action would have an undesirable impact on the economy of these Native Americans. [*2]

Late in the afternoon on April 4, 1997, the lives of Gloria Abrams, Jason Frens, Sanford Jonathan, Sgt. Richard Logerfo and Trooper Richard T. Bytner intersected and created a circumstance that tested the right of peaceful protest on Reservation land and the State's right to traverse unimpeded a public thoroughfare running through the lands of Native Americans. Bloomingdale Road is a two-lane highway which travels east-west, with one lane in each direction. It is a public highway maintained by the State and/or its subdivisions. According to Ms. Abrams' testimony, New York State and/or other municipal authorities do not enter upon these lands unless summoned and accompanied by the tribal chief. Regardless of whether there is an impression that such road is not generally patrolled by the New York State Police, or the suggestion that there is no authority to enter onto the Reservation without being summoned, I take judicial notice of 25 USC §232, entitled, " Jurisdiction of New York State over offenses committed on reservations within State," which seemingly supercedes such assertions.

At approximately 5:00 p.m. on that day, Claimant, Ms. Abrams and Mr. Jonathan were located off the north shoulder of Bloomingdale Road near a bonfire consisting of tires and wood. They were there to assist in stopping the cars using the road and to explain to them the State Legislature's proposed action, and to secure voluntary signatures on a petition protesting the passage of these laws, as well as to pass out leaflets to those wishing them. According to the record before me, these actions were peaceful and there had been no reports of any disturbances during the days leading up to the incident.

Also located on the north side of the highway were two flags. According to Ms. Abrams, a blue and white flag represented the Iroquois Confederacy, of which the Senecas were a part, and a red and yellow flag was the Warrior Society flag representing the men of the Reservation who maintained the peace (Exhibits F-1 & F-2). While she maintained that the Tonawanda Reservation did not have a Warrior Society, the flags were displayed to show unity among the Confederacy tribes. The site shown in the photographs is very close to the eastern boundary of the Reservation (See Exhibits F-1 to F -4).

Ms. Abrams stated that at approximately 5:00 p.m. she observed a State Police car proceeding in an easterly direction along Bloomingdale Road which would pass the site she was at with the other individuals noted above and depicted in the photographic exhibits already referenced. According to her testimony, Ms. Abrams vocally questioned what the troopers were doing there and proceeded along with Mr. Jonathan and Claimant across the westbound lane of Bloomingdale Road to the yellow lines dividing the lanes of travel. Her recollection was that the troopers' car was traveling "fast" when she observed it. While they apparently had not thought out or envisioned how they were going to stop the troopers' car, nonetheless that unequivocally was their intent. Once stopped they wanted to learn the purpose for the car being on the Reservation. She then related that, as the three of them stood on the yellow lines, the troopers' car veered toward them, forcing them to jump out of the way, and, in the process, striking Claimant, knocking him to the ground and injuring him.

Ms. Abrams stated that she gave a statement to the State Police later that day at St. Jerome's Hospital in Batavia in conjunction with their investigation of the incident. She acknowledged that her statement mentions the troopers' car veering toward "the shoulder" but did not specifically state which shoulder and averred that the trooper who took the statement from her failed to put it in. She also admitted that there is nothing in her statement that says that Claimant made contact with the trunk of the vehicle. She testified that she did not write the [*3]statement but had been given the opportunity to review it before she signed it.[FN1]

Mr. Jonathan, a Native American living on the Reservation, essentially corroborated Ms. Abrams' version of the incident. He had assisted in the collection of signatures and handing out leaflets to any member of the public who stopped and wished one. At around 5:00 p.m. on the 4th of April, he was on the north shoulder of Bloomingdale Road tending to the fire. He did not notice the troopers' vehicle until he heard someone mention it. He then followed Ms. Abrams and Claimant to the center of the road, explaining that they wanted to stop the car since State Police had no jurisdiction on the Reservation. He testified that the other two stood to his right and that he put up his hand to motion the car to stop. He acknowledged that another vehicle ahead of the troopers' car was stopped in the eastbound lane, and, as the troopers' car approached, it slowed because of this stopped vehicle. He also recalled that there was a car entering the Reservation in the westbound lane. He went on to state that as the stopped vehicle began to leave the Reservation, the troopers' car sped up, causing him and the others to jump out of the way. While he did not see the impact, he did hear a thump, then turned and saw Claimant "spinning." He was able to get the license plate number of the troopers' car as it passed.

Upon questioning by the Attorney General, Mr. Jonathan estimated that as the troopers' car slowed it was about 30 feet to 35 feet west of the trio. He stated that his hand was up in an attempt to stop the car. While he reiterated that the troopers' vehicle picked up speed and turned toward them, he also explained that just before this it had turned away from them, entered the south shoulder and, as the car in front of it started to exit the Reservation, it then turned back on to the roadway. Mr. Jonathan was given the opportunity to review the statement that he had given to the State Police on the day following the incident. He acknowledged that in that statement he did not report that the troopers' car had allegedly veered toward the centerline.

Claimant testified that after returning to live on the Reservation he had been employed at the Reservation smoke shop until it was shut down by the State. When the protest started on the Reservation he volunteered to help collect signatures and pass out leaflets. He stated that there were two locations at which he worked, but at 5:00 p.m. on the date of this incident he was on Bloomingdale Road working with about 12 other volunteers, including Ms. Abrams and Mr. Jonathan. When shown Exhibits F-1 through F-4, he identified the flag of the Iroquois Confederacy but at that time was unaware of what the red and yellow flag represented. He testified he saw three marked State Police cars on Bloomingdale Road in the half hour before the incident, and no one had attempted to stop them. Claimant went on to testify that he heard someone state that there was a troopers' car approaching from the west and that they should see what the troopers wanted. Ms. Abrams, Mr. Jonathan and he walked onto the roadway in the westbound lane. He confirmed that there had been no prior conversation or plan between those at the site regarding the stopping of any State Police car, and more particularly the one that was then approaching. He recalled that there was no traffic in the westbound lane, but there were two eastbound cars, one which was slowly leaving the Reservation and one which was stopped at the protest site.

Claimant saw the troopers' car slow for the traffic in front of it and at first saw it [*4]move to the right, toward the south shoulder, and estimated that it moved about one foot onto that shoulder. He stated that the car then turned to its left toward the center of the road where Claimant was standing with the other two members of the group. He described the speed of the car as slow at first because of the car(s) in front of it, but when the car immediately in front of it accelerated to leave the Reservation, the troopers' car picked up speed and proceeded toward the yellow line where Claimant was standing. He turned to his left, put down his hand in a defensive reaction, was struck on his right side and spun around, and recalled hitting the car again. He described feeling banged up and was told he should go to the hospital to be examined. Ms. Abrams drove him to St. Jerome's Hospital where he was given medical attention and treatment.

Claimant recalled that some time later, while in the hospital, he was interviewed by Sgt. Michael Dembrow and gave a statement which was transcribed by Sgt. Dembrow. I should note that Sgt. Dembrow also transcribed the statements given by Mr. Jonathan (one day after the incident) and Ms. Abrams at the hospital on the day of the incident. Claimant allowed another investigator to take photographs of his injuries at the hospital that evening. He stated that he was not given an opportunity to read his statement before he signed it, and did so only after being told that if he did not sign it he would be arrested.

On cross-examination he reiterated that, while there had been three other State Police cars that had passed through the Reservation prior to the one driven by Sgt. Logerfo, there had not been any attempt to stop them. Claimant, and the others involved, proceeded to the center of the roadway and he was aware that the police vehicle had slowed from when he first observed it since there was a stopped vehicle in front of it. Mr. Jonathan had stepped forward with his hand extended to stop the police car which was, to his best recollection, about the length of two tractor trailers west of the three individuals. While at the trial he stated that the troopers' car had slowed, he was referred to his deposition testimony where he described the speed of the car as slowing to a crawl as if to stop. When pressed, he stated that when he saw it slow down, he was not sure if it was slowing because of the car in front of it, or if its occupants were going to stop to talk with them. He went on to state that the police car had moved to the right or south shoulder as if to pass the stopped car but as that car proceeded to leave the Reservation, the troopers' car turned toward them as it gained speed. Claimant and the others were still at the center of the highway as this occurred. He believed that he was first struck by the left front portion of the troopers' car, spun around and hit the left rear quarter panel and then hit the trunk. He believed that his entire right side came in contact with the car during this time.

On redirect Claimant acknowledged that his memory of the incident was fresher when he gave Sgt. Dembrow his statement at the hospital. He was then asked to review certain portions of his deposition testimony in order to clarify certain responses read to him by Defendant on cross-examination in an attempt to show inconsistencies in his trial testimony.[FN2] In sum, while he could not recall the specific questions and his answers, he acknowledged that he tried to answer all the questions at the deposition honestly. He stated at the deposition that on [*5]the date of the incident he, along with the others, was walking toward the police vehicle as it approached them and that his right arm was one to one and one-half feet to the left of the centerline of the roadway in the eastbound lane of travel. At trial, under questioning by his counsel, Claimant admitted that it was possible that he was in the eastbound lane but that the police car did not at any time activate any warning devices such as lights, a siren or a horn as a warning to those congregating.

This was confirmed by both Sgt. Logerfo, the driver, and now Sgt., but then Trooper, Bytner. Sgt. Logerfo explained that in 1997 his permanent duty station was not with Troop A which was stationed in Batavia, and that he had been assigned there on temporary duty due to the protests that were going on. He and Sgt. Bytner arrived at the staging area at the Town of Alabama on April 4, 1997 and, since both men were unfamiliar with the area, they decided to ride around to become oriented. Unfamiliar with the Reservation's boundaries, they traveled on Bloomingdale Road and only assumed they were on Native American (Reservation) property when they came upon and passed a smoke shop. Rather than turn around they decided to continue easterly on that road and leave the Reservation which, according to the record, was about two-tenths of a mile further east. As they proceeded, they saw people on the side of the road as well as others, stopping traffic both entering and leaving the Reservation. The troopers also observed a fire burning along the north shoulder to their left. As they proceeded, they saw both the blue flag and the red flag, and, from past experience in dealing with Native Americans in northern New York State, knew that the red flag was the Warrior Society flag. Sgt. Logerfo had on prior occasions dealt with members of that society on the St. Regis Reservation.

Sgt. Logerfo observed traffic entering the Reservation in the westbound lane and noted that the car in front of him had stopped. He initially slowed his vehicle and observed several people enter the roadway on his left. He turned his car to the right and the south shoulder and saw the group continuing to advance until one or two of them were in his lane of traffic. He continued to slow his car to what he estimated to be between 15 to 20 miles per hour.[FN3] He slowed further and drove partially onto the south shoulder. It appeared to him that the group was attempting to stop him and, when the car in front of him started to leave the area, he picked up speed and proceeded in an easterly direction to exit the area. He stated that his concentration was focused to the front so he could be sure no one was there to impede his exit. He heard a loud bang as if someone had hit the car and looked in his mirror where he saw a young male standing upright near the rear quarter panel of the car as it passed him. He was unable to say whether the male was gesturing. He returned to the staging area at the Alabama Town Hall where he inspected his vehicle for damage and noted a small "ding" on the trunk area and that some dirt appeared to have been wiped off the driver's side toward the rear. He denied ever turning or veering the car, intentionally or unintentionally, toward any one. In fact he felt that someone had struck the car, not that the car struck an individual. He did not stop his car after this incident, as he wanted to avoid any possible confrontation.

On cross-examination he revealed that he prepared a report of the incident on April 5, one day after he drove the car on Bloomingdale Road. He could not specifically recall if [*6]he had been told to stay off the Reservation by anyone when he first arrived at the staging area. He also could not recall who had instructed him to write out the report of this incident but was told to do so because of the damage to the vehicle he was driving at the time of the incident. He credibly denied being told what to put in the report. He acknowledged that the vehicle he drove on April 4 was equipped with various warning devices such as lights, siren, loud speaker and horn, and that he did not engage any of them on that date. Further he did not recall if he used the radio in his vehicle to call headquarters to report what happened but instead went directly to the staging area at the Alabama Town Hall and reported the incident to Sgt. Dembrow.

Sgt. Logerfo further testified that when he observed the vehicle stopped in front of him he was approximately 100 feet behind it and, after looking at his report to refresh his recollection, he stated that he slowed to 15 mph. He acknowledged that while he saw the red Warrior Society flag he had no knowledge of whether there was such a Society on the Reservation, but drew that assumption only from seeing the flag. He stated that, while he reported that the group tried to prevent his car from leaving the Reservation and possibly physically endanger him and his passenger, he did not recall seeing anything in their hands nor hear anything being said by them. He reaffirmed that his vehicle was still partially on the south shoulder of the road when he accelerated to leave the area and did so at a normal rate of speed, as he did not want to rapidly accelerate to the speed limit until he cleared the group. He estimated that approximately one-fifth of his car was on the shoulder which was as far to the right as he could move considering the composition and terrain of that area.

Sgt. Logerfo acknowledged that the youth he described in his report did not resemble the photographs of Claimant taken at the hospital on the date of the incident but explained that, since he was concentrating on avoiding hitting anyone, his description was based on a momentary glance in his rearview mirror. He reviewed Exhibits D-1, D-2, D-4, D-5 and D-6, which are photographs of the car he was operating and show an area on the left side of the car where dirt was rubbed off. He testified that he believed that was the area where Claimant initially made contact with his car. While he testified at trial that he saw Claimant in his rearview mirror as he left the Reservation and included that in his report, at his deposition he stated that he did not look behind him at all and was looking straight ahead and did not turn around as he accelerated from the scene.

Sgt. Bytner generally corroborated the testimony of Sgt. Logerfo in most material respects. However, when he saw people enter the roadway and move toward the vehicle he occupied, it was his impression and conclusion that they were looking to confront the troopers and stop the car. He confirmed that their car had slowed to what he believed was 10 to 15 mph, that it accelerated only after the car in front of them proceeded to leave the Reservation and as it passed by a young man, that he heard a thump to the rear of the car. The troopers then returned immediately to the staging area but Sgt. Bytner did not examine the car. He confirmed that they did not engage the use of any warning devices when they came upon the Claimant and the others. He further stated that it did not occur to him that they had hit anyone. Rather, he believed that someone had struck the car and he inquired of Sgt. Logerfo whether the person who struck their car had injured himself. In his opinion, turning around once they initially realized they were on Reservation land made no sense, since the distance to the easterly boundary was, in his estimation, one-tenth of a mile.

Sgt. Michael Dembrow of the New York State Police was assigned to investigate [*7]the incident. He was unaware of the incident until advised by the troopers when they returned to the staging area at the Alabama Town Hall. He requested that the two troopers involved provide him with their statements regarding the incident. In addition, later in the evening of the day of the incident, he went to the hospital to interview Claimant as well as Ms. Abrams and took their statements.[FN4] On the following day he took the statement of Sanford Jonathan (Exhibit K). Sgt. Dembrow was also present when another member of the State Police took various photographs of Claimant at the hospital (Exhibits E-1 to E-5). He went to the scene of the protest on April 5 to view the area and was present when photographic Exhibits F-1 to F-4 were taken. He also inspected the troopers' vehicle and apparently was present when Exhibits D-1 to D-6 were taken. Sgt. Dembrow examined the vehicle and observed that there appeared to be areas along the left side where dirt had been brushed off. He also saw a slight ding at about the center of the trunk.

While Claimant states that he was not allowed to read his statement and was threatened with arrest if he did not sign it, Sgt. Dembrow averred that he had read it to Claimant after he had taken it, including the disclaimer, and also let Claimant read it, after which he signed it and it was witnessed by Ms. Abrams. He stated that Claimant told him that he and the others had gone onto the roadway to stop the State Police vehicle and that, as it approached them, the troopers' car turned toward the south shoulder of the road and that Claimant never implied that it turned toward the center of the highway. He related that Claimant also told him the car, as it was passing him, bumped him. While Claimant was being photographed at the hospital, Sgt. Dembrow observed the areas of Claimant's body that he stated were injured as a result of the bump, describing the scrapes and scratches as being older in appearance, having been scabbed over. He ended his direct examination by explaining that he had previously made arrests on Reservation land for violations of both the Vehicle & Traffic Law and the Penal Law.

On cross-examination Sgt. Dembrow went on to state that he did not instruct any of the 10 to 20 State Troopers to stay off the Reservation land but did inform them to avoid any conflict with the protesters. This was the only incident that occurred on the Reservation during this protest and it was reported to him by the two troopers. He in turn reported it to his superiors and they instructed him to undertake the investigation. He acknowledged that during his investigation the State Police in Batavia received a call from Chief Emerson Webster advising of the occurrence. He did not impound the troopers' vehicle, explaining that, since he was not sure at that point if a crime had been committed, that was not the procedure to be followed. While he agreed that the Genesee County Sheriff's Department could have conducted the investigation, that was not done and he would not have suggested to his superiors that it be done. He had only the left side of the car photographed since, based on what he was told by the troopers, that was the only side involved. He reiterated that he went to the scene to observe that area, to have pictures taken and to assist in collecting data as part of an accident reconstruction investigation. He then filed his report with the A Troop Commander.

While the cross-examination of Sgt. Dembrow was occasionally both passionate and argumentative, it also was very thorough. In part, Claimant sought to demonstrate that Sgt. Dembrow had conducted his investigation with a predetermined mind-set that the troopers had [*8]not acted inappropriately, and thus that his report was inherently biased. A review of the report that he filed (Exhibit 4) does not appear to be anything but a straightforward recitation of the facts as given to him by all involved. In my opinion neither his investigation nor his report demonstrate a bias. I accept his report at face value.

Claimant's counsel's attempts to discredit the report by suggesting that the investigation should have been handled by an outside agency were credibly turned away by Sgt. Dembrow. It was clear that he was assigned to make a preliminary investigation and to file a report with his superiors who then would make decisions as to what course of action should follow, if any, thus eliminating his further involvement in the matter unless so directed.

The contentiousness of the cross-examination was carried over in Claimant's post-trial memorandum of law, where counsel asserts that this witness stated at trial that he accepted the troopers' version as if it were the "gospel truth." While counsel would have me discount the credibility of Sgt. Dembrow, implying his complicity in covering up the culpability of the two troopers in the car, counsel would prefer to have me accept as "gospel truth" the testimony of Claimant and Ms. Abrams.

I have searched the record and find no such admission, nor is there anywhere in this record any response by Sgt. Dembrow from which such "gospel truth" could be inferred. I recognize that counsel can become so entangled in the righteousness of a client's cause that any disagreement with that view over what the facts establish is met with indignation. However, while passion of an advocate is much to be admired and desired by a client, as well as the Court, the facts, if proven by a fair preponderance, are what I must rely upon in formulating my decision.

Claimant posits that the Defendant's liability is based upon §§1146 and §1156 of the Vehicle and Traffic Law. Section 1156 mandates that where there are no sidewalks available, pedestrians shall walk on the shoulder facing traffic. Section 1146 requires that operators of motor vehicles shall exercise due care to avoid a collision with a "...bicyclist, pedestrian or domestic animal ... " on the roadway and give them warning by use of a horn when necessary. I find that based on the proof in this record, each of these provisions is inapplicable.

Section 1156 does not apply under these facts. The unquestioned intent of the statute is to specify where individuals choosing to walk safely along a highway must be, and that is on the shoulder which compels them to face oncoming traffic. In this case, by Claimant's own testimony, as well as that of his witnesses, they never intended to go to the south shoulder and walk toward the troopers' car. The proof before me establishes that their intent was to walk to the eastbound lane of traffic and stop the car by extending their hands palm up while facing the oncoming vehicle. Such action, coupled with their specific intent, finds no protection in this statute. Rather, their actions, in my opinion, are akin to jaywalking, which is not countenanced by this provision of the Vehicle and Traffic Law (and see §1152[a]).

Just as clearly, the intent of §1146 requires motorists to give way to anyone in their lane of traffic and to alert unsuspecting pedestrians of their approach. In the matter before me, Claimant and his colleagues were well aware of the fact that there was a very heavy, powerful machine approaching them and to sound a horn, siren or a loud speaker, in my opinion was unnecessary to alert them that a motor vehicle was unknowingly approaching.

Further, once the trio entered the roadway in an attempt to block and/or stop the State Troopers, they had to be aware that the only reason for its slowing down was due to the car [*9]that was stopped in front of them, and once that vehicle accelerated and exited the Reservation, Defendant's car would do likewise. Moreover, by Claimant's own admission, there is no satisfactory explanation before me as to why three other State Police vehicles had passed over the road without remark or incident and what inspired them to try to stop the one operated by Sgt. Logerfo.

I find that Claimant has not established by a fair preponderance of the credible evidence that these troopers' cars, and Sgt. Logerfo's in particular, had no right to be on this public highway. I credit the testimony of Sgt. Dembrow that he had in his career made Vehicle & Traffic Law stops and arrests on the Reservation and could do so with proper statutory authority (see inter alia, 25 USC §232, supra).

The Claimant, as well as his witnesses, each claim that the troopers' car veered toward the north shoulder and thus toward them, and yet, in their statements given within hours of the incident, they merely stated that the troopers' car turned toward the shoulder. Since I am persuaded that they each were given the opportunity to review their statements prior to signing them, such a dramatic move by the troopers' car would have been specifically noted. Coupled with this is Mr. Jonathan's trial testimony that the troopers' car entered the south shoulder, corroborating the troopers' testimony.

There is no question in my mind that this action by the troopers was to avoid contact with Claimant and the others and was also an indication that they were not going to stop. Certainly when the car in front of them began to accelerate off the Reservation, the troopers' car returned to the pavement to do the same thing. Claimant and his witnesses characterize this action as veering and, while I can acknowledge that that might have been their perception, I cannot agree that it was the type of maneuver such a word connotes. Much of the argument here revolves around semantics. Did the troopers' car turn, or did it veer, or did it angle, back from the south shoulder onto the road? Each italicized verb above suggests differing implications of intentional and/or negligent behavior. To me, the most innocuous of the terms, "angling" back onto the roadway, most accurately describes the actions of the troopers' car as established by the proof at trial.The cases relied upon by Claimant as the basis upon which liability could be predicated are clearly distinguishable from the matter before me. Two of the cases cited involved summary judgment motions where the facts were sharply in dispute and the appellate court reversed the lower court (Romeo v DeGennaro, 255 AD2d 208) or affirmed (Case v Nitzberg, 245 AD2d 1069), to allow a full presentation of the facts for a jury to decide the contested issues. In the two Court of Claims decisions relied upon (Tufano v the State of New York, UID No.2002-016-042, Ct Cl, Claim No. 100573, May 2, 2002, Marin, J., and Stacy v the State of New York, UID #2001-007-108, Ct Cl, Claim No. 101637 - Motion No. M-63014, April 18, 2001, Bell, J.),[FN5] the accidents involved pedestrians using crosswalks when they were struck. That is clearly not the case here, as the Claimant and his two colleagues were crossing the highway at a point where there was no pedestrian walkway within the immediate vicinity.

Claimant argues that his actions must be measured or weighed against those of the Defendant on a scale of comparative negligence and I do not disagree. However, that does not [*10]mean that I disregard or fail to consider what was the proximate cause of this unfortunate occurrence.

On this record and all the proof before me, I find that the sole proximate cause of this incident was the action of the Claimant, and that the Defendant bears no responsibility for the injuries that may have been inflicted upon the Claimant. This happenstance occurred in what appears to have been an effort to cause a confrontation with State authorities. It was fraught with danger from its not well-conceived inception. I find it hard to understand why there was no effort to stop the other three State Police cars that passed through this same road and were observed by the entourage and there is nothing in this record that offers an explanation.

I am not unaware of the reality underpinning the emotions shared by those living within the Reservation: that they are a sovereign nation within the boundaries of the State of New York and, while they may have their own tribal laws, they are still subject to the laws of the State, no matter how unjust they feel such laws may be. That is a fact I daresay of life for residents of this and other states in our union. It is not uncommon to feel that there are laws which govern us that many may believe are unfair in their application, not the least of which would be the laws of taxation. Nonetheless, it must be recognized that we are a nation of laws, and adherence to the rule of law is what guides us in our everyday social and legal interactions, prevents anarchy, and hold us together as a people whether on a reservation, in a state or within a nation. If we wish to protest against a law, we have that right, so long as that protest is peaceful and does not endanger the well-being of others.

I am not so naive as to be ignorant that this claim implicates issues of Native American and Reservation sovereignty and its interplay with the role of New York State and other municipal authorities. Clearly, beneath the surface of an action sounding in negligence and personal injury are a complexity of issues and emotions, a conflict which the Court of Claims, whose jurisdiction is limited to compensatory damages, is not empowered to resolve. The liability of the Defendant has not been established.

Accordingly, the claim must be, and hereby is, dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: Rochester, New York

August 21, 2006

__________________________________

PHILIP J. PATTI

Judge of the Court of Claims Footnotes

Footnote 1:Her statement was marked for identification as Exhibit I and was liberally referenced during her testimony, but was not offered into evidence.

Footnote 2:Claimant's counsel referred him to page 61, lines 7 thru 19; page 62, lines 3 thru 20; and page 78, lines 17 thru 23. The deposition was taken on January 19, 2001, three and one-half years after the incident.

Footnote 3:During his cross-examination he was confronted with his deposition testimony in which he estimated his speed at 20 mph.

Footnote 4:Claimant's statement was admitted as Exhibit J.

Footnote 5:Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.