Johnson v State of New York

[*1] Johnson v State of New York 2006 NY Slip Op 52378(U) [14 Misc 3d 1202(A)] Decided on October 30, 2006 Ct Cl Fitzpatrick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2006
Ct Cl

Janet Johnson, as Administratrix of the Estate of LUIS A. ROLON, Claimant,

against

State of New York, Defendant.



99250



For Claimant:

BRINDISI, MURAD & BRINDISI-PEARLMAN, LLP

By: Anthony Murad, Esquire

Eva Brindisi-Pearlman, Esquire

For Defendant:

ELIOT SPITZER

Attorney General of the State of New York

By: Christopher Wiles, Esquire

Assistant Attorney General

Diane L. Fitzpatrick, J.

Claimant seeks damages from the State for the wrongful death of her son, Luis Rolon, who was killed in a motorcycle accident on August 20, 1998, in the City of Utica. According to the Claimant, the cause of the accident was the negligence, carelessness, and recklessness of a New York State Trooper, David Olney, pursuing the decedent at high rates of speed without the activation of the emergency lights or sirens on his patrol vehicle.

This Court previously denied a summary judgment motion [FN1] in which Defendant sought judgment on several grounds. In that motion, Defendant argued that the standard of care set forth in Vehicle and Traffic Law § 1104(e) was applicable to this case; the pertinent part provides:

The foregoing provisions [which permit an authorized emergency

vehicle involved in an emergency operation to disregard certain

traffic laws] 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. [*2]

In that Decision and Order, the Court found that Trooper Olney was operating an authorized emergency vehicle and was engaged in an emergency operation. By finding Vehicle and Traffic Law § 1104 applicable to this case, the standard by which the trooper's conduct is assessed is not that of ordinary negligence, it is Claimant's burden to show that the trooper's conduct was in "reckless disregard" for the safety of others.

On August 19, 1998, at 11:20 p.m., State Trooper Olney responded to a call to disperse a crowd gathered for a drag-racing event on Bleecker Street in the City of Utica. At that time, Trooper Olney had been a State Trooper since September 27, 1993, approximately five years. In order to become a State Trooper, Trooper Olney completed six months of required training at the State Police Academy, and he testified that a portion of his training did address vehicle pursuits. Prior to this, he was employed with the Oneida County Sheriff's Department, first as a correction officer in the county jail and later as a patrol officer and investigator.

Trooper Olney returned to the same area a short time later to be sure the crowd had left and noticed approximately six motorcycles traveling west on Bleecker Street. Trooper Olney testified he was traveling east and turned around at the "Y" intersection of Bleecker and Albany Streets to follow the motorcycles and check their registration validation stickers. A tow truck was between Trooper Olney's patrol vehicle and the motorcycles, just after he turned around. The motorcycles turned right onto Mohawk Street after stopping at a red traffic signal. Trooper Olney also turned right onto Mohawk Street and was now about a block directly behind the motorcycles.

About this time, one of the motorcycles sped away from the others as it approached the intersection of Broad Street. This, Trooper Olney later learned, was Luis Rolon, hereinafter the Decedent. It appeared to Trooper Olney that Decedent was exceeding the speed limit, but he did not intend to follow him at that point. All of the motorcycles and Trooper Olney turned left onto Broad Street. Decedent was still accelerating, and the Trooper estimated his speed to be approximately 55 mph in an area where the speed limit is 30 mph. It was around this point that Trooper Olney decided to follow Decedent. He was a few blocks behind, approximately two- or three-tenths of a mile, as he watched Decedent turn right onto North Genesee Street. Trooper Olney lost sight of Decedent's motorcycle after it turned.At this point, Broad Street opens up to two west bound lanes. The other motorcycles were in the left-hand lane as Trooper Olney passed them on the right just past the intersection with Route 5S. Trooper Olney then followed the direction of Decedent's motorcycle onto North Genesee Street, traveling approximately 50 mph. North Genesee Street is a commercial area with two lanes of travel in each direction. As Trooper Olney reached the bridge over the railroad tracks, he saw Decedent on the bridge over the barge canal passing two vehicles, and at this point, he was approximately four-tenths of a mile behind Decedent. Trooper Olney was trying to keep Decedent in sight with the intention of stopping him or following him until he stopped. Trooper Olney again lost sight of Decedent, but as he neared Herkimer Road,[FN2] he heard what he thought to be Decedent's motorcycle accelerating on Herkimer Road. Trooper Olney slowed down as he approached the intersection because of road construction, and then turned right onto Herkimer Road. He saw Decedent again around the intersection of Leland Avenue by Burger King. Decedent's motorcycle was closer than before, so [*3]Trooper Olney thought that Decedent had also slowed down through the construction areas. Trooper Olney accelerated to approximately 60 mph, as he estimated the motorcycle was now traveling between 60 and 70 mph. He testified that he did not turn on his emergency lights or siren because he was concerned that action would encourage Decedent to increase his speed, and given the distance between his vehicle and the motorcycle, it would not be in keeping with State Police policy. Herkimer Road is a commercial area but becomes more residential as one travels east. Trooper Olney saw Decedent accelerating to what he estimated to be 90 mph. Trooper Olney accelerated to 70 - 75 mph. Trooper Olney, realizing he would not catch up with the motorcycle, radioed for a trooper east of him to assist and Trooper Malone responded. Trooper Olney told Trooper Malone to watch for a motorcycle traveling between 90 and 100 mph heading east on Herkimer Road near Keyes Road.Trooper Olney again lost sight of Decedent as he continued east on Herkimer Road. Shortly after communicating with Trooper Malone, Trooper Olney crested the hill and saw the motorcycle lying in the road. Decedent had hit a car and had flown off the motorcycle. Trooper Olney called for assistance, blocked the accident scene with his vehicle and turned on his emergency lights.

Trooper Olney estimated the distance from the intersection of Broad Street and North Genesee Street to the Herkimer Road intersection to be about three-quarters of a mile, and from the point where he first saw the motorcycles on Bleecker Street to the accident scene, a total of about three miles. It was less than one mile from the Burger King to the accident scene. The Trooper testified he was never closer than two-tenths of a mile from Decedent, and he believed that Decedent did not know he was being followed because he never took any evasive action. He also testified that there are regular drag races on this stretch of road, and it is normal to see motorcycles going to a "Nice 'n Easy" further east from the accident scene on Herkimer Road. In light of this knowledge, Trooper Olney considered that Decedent might stop at that "Nice 'n Easy" or pull over into some parking lot to wait for the other motorcyclists.

Police Officer Louis Capri, a member of the Utica Police Department, was dispatched to the accident scene at 12:19 a.m.[FN3] on August 20, 1998. He testified that when he arrived, he saw two State Police cars blocking the roadway on each side of the accident scene. A white Chevy sedan was on the south side of Herkimer Road, a motorcycle was on its side in the road, and the driver of the motorcycle was also in the road just beyond the motorcycle.

Officer Capri described Herkimer Road as running east and west with one travel lane in each direction. The speed limit is 30 mph and approaching the accident scene the road is straight with an uphill grade. Officer Capri investigated the accident. He prepared written reports,[FN4] took depositions from witnesses,[FN5] and obtained a statement from Trooper Olney.[FN6] He [*4]also completed an accident reconstruction,[FN7] which, coupled with the witnesses' statements, indicated that the driver of the white Chevy sedan, Darnell Menard, was backing out of the driveway at 1016 Herkimer Road, and when her car reached the center of the road, she saw a motorcycle approaching from the west at a high rate of speed. She put her car in drive and had begun moving forward, toward the driveway, when the motorcycle collided with the rear passenger side of her vehicle. The impact occurred near the center line of Herkimer Road. It was determined by Officer Capri that Decedent was traveling 99 mph when he saw the Menard vehicle and slowed to 97 mph at impact. The Menard vehicle was going about 9 mph. The sight distance from the crest of the hill to the accident scene was approximately one-quarter mile. Decedent was ejected from the motorcycle, flew 51 feet then skidded another 42 feet. The Menard vehicle rotated clockwise and stopped 16 feet southeast of the point of impact. Both drivers were taken by ambulance to the hospital where Decedent died.

In the accident report, Officer Capri attributed the cause of the accident to Decedent's speed. He found that a contributing factor was the tinted helmet shield Decedent was wearing which limited his ability to see. However, Officer Capri acknowledged that when he arrived at the scene, Decedent's helmet shield was up, and he did not know for sure whether it was down at the time of impact.

There were some discrepancies between Officer Capri's report and Trooper Olney's statement and testimony. Officer Capri's report stated "Trooper D. Olney then approached me. He informed me that he was several hundred feet eastbound behind the motorcycle when the collision happened."[FN8] On the witness stand, Trooper Olney said he was between two- and three- tenths miles (1,056' - 1,584') behind Decedent. He denied telling Officer Capri he was several hundred feet behind Rolon; he testified he would not have said that because it was not true. Officer Capri's report states Trooper Olney was traveling 75 mph just before the accident, but the Trooper testified he was going around 70 mph. Officer Capri was recalled by the Defendant. He clarified that his report was a summary of the narrative of his investigation and not direct quotes. His meaning of the word several is more than two and less than twelve; therefore, when he wrote "several hundred feet," he testified, he meant between 200 and 1200 feet.

Officer Capri wrote that Trooper Olney said he was pacing Decedent; Trooper Olney agreed he may have said that, although what Trooper Olney did that night by following Rolon does not coincide with the description of pacing in the New York State Trooper Manual.[FN9] According to the manual, pacing means the trooper maintains a constant distance behind the target vehicle to determine its speed. Trooper Olney described what he would consider another description of pacing, which he said was to keep the patrol car at a set, slower speed, as opposed to a set distance, from the vehicle being followed. When that vehicle is finally stopped, he can then confidently write the driver a ticket for at least the speed he had maintained, knowing that the driver was traveling faster. [*5]

Claimant also called Joanne L. Deitlen [FN10] to testify. She had given the Utica police a statement [FN11] about what she heard the night of the accident. Ms. Deitlen resides at 702 Herkimer Road, approximately one-half mile west of the accident scene.

Ms. Deitlen testified that on August 20, 1998, at approximately 12:10 a.m., she was awake in her bed. She heard two vehicles pass her house - the first sounded like a motorcycle and a car went by about five seconds later. It sounded like both were traveling at an extremely high rate of speed. Neither vehicle had a siren nor emergency lights on. Approximately five minutes later she heard sirens. She then left her house and went to the accident scene but it was blocked off.

The next day, Ms. Deitlen read about the accident in the newspaper. The article only mentioned a motorcycle and a car, but she recalled hearing a second car five to ten seconds after the other two vehicles. She contacted the Utica Police Department to inquire about this second car. She agreed to give a statement. She said the police did not seem interested in hearing about the second car, and her statement in evidence does not refer to any second car.[FN12] Trooper Olney testified that he did not recall any vehicles traveling through the accident scene, and the vehicles that came from the west were emergency vehicles responding to the accident.

Claimant also called two witnesses who were with the motorcyclists on the night of the accident. Brian Berg and Eric Conkling both testified that Decedent had his headlights on that night, and that the lights come on and stay on when that type of motorcycle is started and running. There is no light switch. Mr. Berg said he saw Trooper Olney turn around and follow the motorcycles. Mr. Conkling did not see where the Trooper went after he turned onto Mohawk Street.

Claimant's expert was Salvatore Valvo who spent 27½ years with the New York State Police. At the time of trial, he had most recently spent the past 7½ years self-employed as a consultant on police matters. He reviewed documents and photographs, went to the scene of the accident, and then prepared a report. He had experience with motorcycle pursuits as a trooper.

Mr. Valvo disagreed with Trooper Olney's second description of pacing. Trooper Olney was not pacing Decedent in conformance with the New York State Trooper Manual; therefore, he was not pacing the motorcycle, as the Trooper told Officer Capri.

Based upon Mr. Valvo's review of the documents, his experience and internet research, he opined that Decedent knew he was being pursued and was fleeing. The fact that Decedent was speeding in commercial and residential areas led him to this conclusion. Mr. Valvo defined a vehicle pursuit as a situation where the target vehicle driver is fleeing and attempting to avoid apprehension. The New York State Police Field Manual [FN13] defines vehicular pursuit as follows:

An active attempt by a member in a Division vehicle [*6]

to apprehend a fleeing subject in a motor vehicle who

is knowingly attempting to avoid apprehension. The

Member must have a reasonable belief that the subject

is aware of the Member's attempt to stop the vehicle.

The manual requires that the driver know he is being pursued. The State Police have a vehicle pursuit policy [FN14] which requires that the trooper who elects to engage in a pursuit immediately activate his emergency lights and siren as well as notify a supervisor. The supervisor then controls the situation and can terminate the pursuit if necessary for safety reasons. In Mr. Valvo's opinion, Trooper Olney initiated a high-speed pursuit of Decedent but failed to follow the policy by not using his lights or siren and by not calling a supervisor. He said it was conceivable that when Trooper Olney made his U-turn, Decedent saw him in his rearview mirror. Decedent then left the group of motorcycles at a high rate of speed and continued speeding. This, according to Mr. Valvo, indicated flight. Mr. Valvo opined that by pursuing Decedent at high rates of speed through commercial and residential areas, Trooper Olney exhibited a reckless disregard for the safety of others. Furthermore, he believes that Trooper Olney could have stopped Decedent before the accident or, at least, attempted to stop him by using his emergency lights and siren. He further stated that perhaps Ms. Menard might have heard the siren or seen the lights and thereby avoided the accident.

On cross-examination, Mr. Valvo said he believed the pursuit began when Decedent sped away from the group. Mr. Valvo has reviewed studies which indicate that a person who is fleeing will continue to increase his speed during a pursuit but will slow down when it is terminated. Decedent's increased speed and Trooper Olney's U-turn are the basis for Mr. Valvo's opinion that Decedent knew he was being followed. He agreed that Decedent's speed was a substantial factor in causing the accident.

Mr. Valvo reviewed the videotape [FN15] used for training State Troopers in the procedures of high-speed pursuits. That video suggests that the trooper in a pursuit try to get the license plate number and any other identifying information about the vehicle. Mr. Valvo could not recall specifically what was said about identifying the vehicle in that video, but did not think it contained such a directive.[FN16] Following that testimony, Mr. Valvo said a trooper should get a description of the vehicle. When asked if Trooper Olney was close enough to get a description of the vehicle, Mr. Valvo said he did not know, "he may have been."[FN17]

Mr. Valvo testified that he believed Trooper Olney had opportunities to stop Decedent before the accident. He was shown photographs taken of the route traveled by the vehicles that night, and he stated that Trooper Olney could have safely pulled Decedent over in some of the [*7]business parking lots shown in these photographs. The first two photographs [FN18] were taken at the corner of Mohawk and Broad Streets where Mr. Valvo said the "pursuit" began. However, at that point Decedent was still traveling with the group of motorcycles, and although speeding up, Trooper Olney did not estimate his speed or intend to follow or stop him in the photographed areas.

The next photograph [FN19] was of Broad Street where Trooper Olney was still behind and watching the other motorcycles. Thereafter, Decedent turned onto North Genesee Street, and Trooper Olney testified that he lost sight of him until he, too, was on North Genesee Street. When he saw the motorcycle again, on the bridge traversing the Erie-Barge Canal, he was four-tenths of a mile behind him. The motorcycle had already passed the businesses that Mr. Valvo said would be places that Trooper Olney could have stopped Decedent, as seen in the photographs.[FN20] Mr. Valvo also opined that Trooper Olney could have stopped Decedent on Herkimer Road; however, it was then that Decedent accelerated even more and Trooper Olney called for a Herkimer unit to watch for the speeding motorcycle. The Court disagrees with Mr. Valvo's opinion that Trooper Olney could have safely stopped Decedent before the accident.

It was Mr. Valvo's opinion that Decedent was fleeing and Trooper Olney was in a pursuit to stop the motorcycle. Given his position, it is highly speculative and counterintuitive that the Trooper's activation of his lights and siren would have motivated Decedent to slow down or voluntarily pull over. The State Police Pursuit Training Tape [FN21] recommends that the lights and sirens not be activated until the trooper is close to and can identify the target vehicle. Trooper Olney testified that before Herkimer Road, at four-tenths of a mile behind Decedent, he was not close enough to effectuate a stop. Mr. Valvo indicates that if Trooper Olney had his lights and siren activated, he could have sped up and overtaken the motorcycle to try and stop it. Even if Trooper Olney had his lights and siren activated, it seems unlikely that the lights would have been a warning to Ms. Menard. Given the distance the Trooper was behind Decedent, his lights would not have been visible above the crest of the hill in time to prevent this accident. It is also speculative that Ms. Menard would have been able to hear the siren and be alerted to its location in sufficient time to avoid the accident given Decedent's speed of almost 100 mph and the sight distance of two-tenths of a mile to the crest of the hill.

The State's expert, Reginald Allard, had 33 years of law enforcement experience. He was a patrol sergeant with the New Britain Police Department in Connecticut for 12 years, and since 1985, except for a six-month leave of absence to become a lieutenant at the Woodbridge Police Department in Connecticut, he has been a training officer at the Connecticut Police Academy. He specifically teaches pursuit driving. Mr. Allard testified that, in his opinion, Trooper Olney was reasonable and prudent under the circumstances. The New York State Police Field Manual [*8]leaves the initiation of a pursuit to the trooper's discretion. The trooper must reasonably believe that the target-vehicle driver is aware of the officer's presence, and that driver must intentionally fail to stop. Although speed can be an indication that the subject is fleeing, Mr. Allard believed that Trooper Olney's experience and knowledge of the motorcycle activity in the area led him to believe that Decedent was speeding for other reasons. Mr. Allard's investigation revealed that motorcyclists would often leave the group with the intention to meet somewhere later. Then they would see who could get to that location first. Mr. Allard testified that this is a reasonable alternative explanation for Decedent's speed. Because of the distance between the vehicles and because Trooper Olney did not have his emergency lights or siren on, it was reasonable to conclude that Decedent did not know he was being followed.

Mr. Allard measured the distance from where Trooper Olney started following the motorcycles to the accident location as 2.6 miles. Mr. Allard testified that traveling the speed limit and stopping at two traffic lights it took him 5½ minutes to get from Bleecker Street to 1016 Herkimer Road. At the speeds the Trooper and Decedent were traveling it would take less than a minute to get from the intersection of Broad Road and 5S to the accident scene. At 60 mph, it would take 25 seconds to get from Ms. Deitlen's house at 702 Herkimer Road to the scene of the accident (six-tenths of a mile). There was two-tenths of a mile of sight distance from the crest of the hill to where Ms. Menard was backing out at 1016 Herkimer Road. At 100 mph it would take Decedent 7.2 seconds to cover the distance. Because Ms. Menard [FN22] did not see any headlights, Mr. Allard concluded that Trooper Olney was still below the crest of the hill at the point of impact. That comports with the Trooper's testimony and statement regarding the distance he was behind Decedent. He also concluded that Decedent did not have his lights on

The State also called Trooper Thomas Malone to testify. Trooper Malone received the radio transmission from Trooper Olney that night regarding a speeding motorcycle headed in his direction. Trooper Malone said that Trooper Olney did not say he was in pursuit of the motorcycle or even that he was following it. Trooper Malone arrived at the accident scene and helped block traffic. He could not remember if the motorcycle lights were on or off after the crash.

The State's second expert was Sergeant Richard Doucette, the Division Safety Officer with the New York State Police since July 2004. He administers the driver education program for the New York State Police, teaching emergency vehicle operations to recruits at the academy and doing in-service training. Prior to July 2004, he was the Assistant Division Safety Officer for two years, teaching recruits at the academy. Trooper Doucette testified about New York State Police procedure and the field manual. The manual contains articles of instruction with command verbs such as "must" or "shall." It also has statements of guidance and suggestion which are not mandatory. Interim orders contained in the manual represent policy changes, but not necessarily mandatory procedure.

Sgt. Doucette explained the process a trooper should engage in after a traffic violation has been observed. First, a determination must be made whether to stop the violator. If the violator is going to be stopped, other factors come into play. The trooper needs to obtain identifying information about the vehicle or occupants, such as license plate number, make of the vehicle, [*9]and the number of occupants. The trooper should then select where the vehicle should be stopped. Once that is determined, the trooper should activate the vehicle's emergency lights to get the driver's attention. If that doesn't work, the trooper uses his siren. Finally, if the motorist still does not stop, and the trooper can safely do so, the trooper pulls up next to the vehicle and points to the side of the road, making eye contact with the driver. If the driver does not stop at that time, the trooper is in a position to decide whether to initiate a pursuit.

The definition of vehicular pursuit in the New York State Police Field Manual requires a reasonable belief on the part of the trooper that the violator is aware of the trooper's attempt to stop the vehicle. In Sgt. Doucette's opinion, Trooper Olney had not obtained sufficient information to identify the motorcycle and, therefore, was not in a position to attempt a stop. Trooper Olney was correct in not activating his emergency lights. Sgt. Doucette felt Trooper Olney was attempting to pace the motorcycle and acquire identifying information. Sgt. Doucette said a pursuit cannot be initiated until an attempt is made to stop the violator.[FN23]

Relying on the testimony of her expert, Salvatore Valvo, the Claimant contends that Trooper Olney was in pursuit of Decedent, who was knowingly attempting to avoid apprehension. The field manual includes two specific events in defining a pursuit: 1) An active attempt to apprehend a fleeing subject... 2) who is knowingly attempting to avoid apprehension. Claimant contends that Trooper Olney had the intent to stop Decedent and given the accelerating speed of Decedent's motorcycle, the Trooper should have been aware of Decedent's efforts to flee. Engaged in a pursuit of Decedent, Trooper Olney failed to follow police procedures set forth in the New York State Police Field Manual requiring the activation of the Trooper's vehicle's siren and lights. The failure to activate those warning signals, Claimant argues, given the speeds at which these vehicles were traveling and the location of the chase, establishes that the Trooper's actions rise to the level of reckless disregard for the safety of others and was a proximate cause of Decedent's accident. As the argument goes, if Trooper Olney had engaged his lights and siren, Darnell Menard could have been warned of the oncoming traffic and stayed in the driveway.

Ms. Menard was subpoenaed to testify at trial but failed to appear. The parties stipulated that Ms. Menard would have testified that she did not see headlights or hear sirens. If she had, she would not have pulled out of the driveway. Ms. Menard's supporting deposition was admitted into evidence.[FN24]

Legal Analysis

In a wrongful death case, Claimant is held to a lesser burden of persuasion since the Decedent cannot testify to his version of the events (Noseworthy v City of New York, 298 NY 76, 80; Humphrey v State of New York, 60 NY2d 742, 743). The burden, however, does not shift. The rule provides merely "a method or approach to weighing evidence and permits [the fact finder] greater latitude in drawing inferences favorable to [claimant]" (Sawyer v Dreis & Krump [*10]Mfg. Co., 67 NY2d 328, 334; Holiday v Huntington Hosp., 164 AD2d 424).

As the Court has previously determined and the parties acknowledge, Trooper Olney's conduct is to be judged by the "reckless disregard" standard applicable to drivers of authorized emergency vehicles (Vehicle and Traffic Law § 1104). Vehicle and Traffic Law § 1104(b) permits drivers of "authorized emergency vehicles," including police vehicles, to disregard certain rules of the road such as exceeding speed limits, passing through control signals, and disregarding regulations that direct movement. To establish a breach of the reckless disregard standard of care, it must be shown that the operator of the emergency vehicle " 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). Some of the factors that are given consideration in determining whether the conduct in question was in reckless disregard of the safety of others are: "(1) the nature of the original offense; (2) the length of miles of the chase; (3) the duration and time of the chase; (4) the weather conditions; (5) road conditions; (6) traffic volume; (7) neighborhood characteristics; (8) visibility; and (9) speed," (Dale & Gere v State of New York, Ct Cl, unpublished decision of Lebous, J., signed June 30, 2003, Cl No. 98032 [UID No. 2003-019-006], p. 7). The reasonableness of the officer's conduct must be judged as of the time and in light of the circumstances in which he acted, not with the benefit of hindsight (see Stanton v State of New York, 29 AD2d 612, 614, affd 26 NY2d 990, 991).Although, in looking back, a safer course of conduct may now be apparent, this alone will not form the basis for imposing liability (id.; Strobel v State of New York, 36 AD2d 485; Dunn v State of New York, 34 AD2d 267). More than a momentary lapse of judgment is necessary to meet the reckless disregard test, as the standard imposed is intended to limit judicial second-guessing in the quiet confines of the courtroom of police officers engaged in actively performing their law enforcement responsibilities (Saarinen v Kerr, 84 NY2d at 502).

There are three key components to the definition of vehicular pursuit in the New York State Police Field Manual: (1) Active attempt to apprehend (2) Knowing attempt to avoid apprehension and (3) Engaged trooper's reasonable belief that subject is aware of the attempt to stop the vehicle. Although subject to interpretation, whether the Trooper's conduct amounted to an actual pursuit calling into play compliance with the New York State Trooper's Field Manual, Trooper Olney insists that he was not in pursuit. Viewed in light of this litigation, his position can be seen as self-serving; yet, after carefully listening to the witnesses, observing their demeanor, and viewing the documentary evidence, the Court finds that on that fateful night Trooper Olney was not in "pursuit" of Decedent.

Mr. Valvo focused on Decedent's increasing speed as self-effectuating proof that Decedent was aware of the presence of the Trooper and was actively fleeing. Yet, Mr. Valvo testified on cross-examination, that without the trooper's car lights and siren activated, "[H]ow is someone supposed to know that they're supposed to be stopped if you don't have your lights and siren activated to pull them over? If I came behind you and I'm driving a State Police car, how do you know you're being stopped if I didn't put my lights and siren on?"[FN25] This seems to beg the exact question underlying whether the Trooper was in pursuit of the motorcycle. Trooper Olney [*11]did not activate his lights and siren because he was not trying to stop the motorcycle; there was no active attempt to apprehend. If, as Mr. Valvo testified, without the lights and siren activated, a motorist would not know that he is supposed to stop, then how could Decedent have been actively avoiding apprehension? If we accept Mr. Valvo's opinion that Decedent was fleeing the Trooper's vehicle without its lights and siren activated, unaware of his need to stop, it is entirely reasonable to conclude that activation of the lights and siren would have only intensified Decedent's avoidance.

The Court is not persuaded that Decedent even knew the trooper was behind him.Mr. Conkling, who was also part of the group riding the motorcycles that evening, could not state at trial that he knew where the Trooper went after the motorcycles turned onto Mohawk Street and before Decedent began speeding away from the group. Mr. Berg, another motorcyclist with the group that evening, was aware of the Trooper's presence. Given the types of activities motorcyclists in the area engage on occasion, i.e., gathering at the Nice 'n Easy, or separating and traveling to an agreed location as quickly as possible, along with the distance Trooper Olney maintained behind the Decedent, the fact that it was night, and the fact that the Trooper did not activate his lights or siren, it seems more likely that Decedent's increasing speed was disjoined from the Trooper's position behind the motorcycle, making Trooper Olney's belief reasonable that Decedent was unaware he was following him.

According to both Sgt. Doucette and Mr. Allard, Trooper Olney acted appropriately in following Decedent. The New York State Police Field Manual indicates that in pacing a vehicle for speed enforcement, one of the key components is identification of the vehicle. Mr. Valvo testified that, based upon that manual, the trooper should keep his vehicle in a position to observe the target vehicle, close enough behind to describe any unusual item with the vehicle, and follow it for a "reasonable distance."[FN26]Yet, on cross-examination, Mr. Valvo testified that he didn't know whether Trooper Olney was ever close enough to adequately describe Decedent's motorcycle, which are key factors before a formal pursuit should be engaged. Identification is key before a stop should even be attempted, according to Sgt. Doucette. Although the Trooper had the intent to eventually stop the Decedent, he made no effort to try to stop him prior to the accident. Without an active attempt to stop, Decedent's speeding behavior may be fairly viewed as unrelated to the Trooper's presence.

The question now turns to whether the Trooper's conduct in failing to initiate a formal pursuit, evinces conduct in reckless disregard for the safety of others. Here, as in Bracci v State of New York (Ct Cl, Patti, J., signed June 16, 2005, Cl No. 107004, M-68953, UID No. 2005-013-024) the failure to engage lights and siren is argued as reckless behavior. It is the omission, as opposed to the commission, that is to be seen as reckless. Also here, as in Bracci v State of New York, the experts, all with extensive expertise in police matters, are diametrically opposed. Yet, when viewed from the vantage point of the Trooper, during the first few minutes after midnight on August 20, 1998, the Court does not find his behavior breached that standard of care. First, the entire event from Bleecker Street, before Decedent began speeding, until the tragic moment covered less than three miles and took, at most, less than six minutes, and more likely less than two minutes from commencement to the accident scene. Although traveling at [*12]high rates of speed, through commercial and residential areas, it was late at night, in the middle of the week, very light traffic, and the weather was clear and dry. Trooper Olney called for assistance less than two miles into the chase. Under these circumstances, Trooper Olney did not act in reckless disregard for the safety of others.

The failure to activate his warning signals was also not a proximate cause of this accident. As the testimony reflects, the sight distance from the driveway from which Ms. Menard was backing out to the crest of the hill was approximately two-tenths of a mile. No headlights were visible to Ms. Menard as she backed out of the driveway, supporting the Trooper's position of the distance he maintained behind the motorcycle. Even if activated, his lights would not have been visible below the crest of the hill in time to warn Ms. Menard to prevent this accident. There was also no proof that from that driveway a siren could have been heard from below the hill. Mr. Valvo testified in conjunction with Trooper Olney that the distance a siren can be heard varies based upon a number of factors, including the terrain. Rather, the Court finds that Decedent, himself, made choices that night which were the cause of his accident and tragic demise.

All motions not heretofore decided are hereby dismissed.

The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY. Footnotes

Footnote 1:Johnson v State of New York, Cl 99250, M-66959, Fitzpatrick, J., signed November 21, 2003, UID No. 2003-018-266.

Footnote 2:Herkimer Road was also referred to as Aurt Avenue during trial.

Footnote 3:See Exhibit 19.

Footnote 4:Exhibits 1, 2, and 3.

Footnote 5:Exhibits 4, 5, and 6.

Footnote 6:Exhibit 7.

Footnote 7:Exhibit 8.

Footnote 8:Exhibit 2.

Footnote 9:Exhibit 24.

Footnote 10:Formerly known as Joanne Franqui.

Footnote 11:Exhibit 6.

Footnote 12:Exhibit 6.

Footnote 13:Exhibit 24.

Footnote 14:Exhibit 23.

Footnote 15:Exhibit 26.

Footnote 16:Exhibit 26.

Footnote 17:Trial recording.

Footnote 18:Exhibit 28F and 28G.

Footnote 19:Exhibit 28L.

Footnote 20:Exhibit 28R and T.

Footnote 21: Exhibit 26.

Footnote 22:Exhibit 5.

Footnote 23:See Exhibit 23 - definition of pursuit.

Footnote 24: Exhibit 5.

Footnote 25:Trial transcript page 403, lines 14-22.

Footnote 26: Trial transcript page 354, lines 4-20.