Smith v Hastings

[*1] Smith v Hastings 2009 NY Slip Op 50378(U) [22 Misc 3d 1130(A)] Decided on February 24, 2009 Supreme Court, Ulster County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2009
Supreme Court, Ulster County

Teri Lynn Smith, Plaintiff,

against

Dennis F. Hastings, Defendant.



06-0562



APPEARANCES:

GROGAN & SOUTO, P.C.

(Edward P. Souto, Esq., of Counsel)

Attorneys for Plaintiff

Court Plaza

14 Scotchtown Avenue

P.O. Box 330

Goshen, New York 10924

ANDREW M. CUOMO

Attorney General of the State of New York

(Michelle M. Walls, Esq., of Counsel)

Attorneys for Defendant

The Capitol

Albany, New York 12224

Michael C. Lynch, J.

This motor vehicle accident case came on for a bench trial on February 23, 2009, limited to the issue of liability. Specifically at issue is whether defendant, a [*2]New York State Trooper, was engaged in an "emergency operation" at the time of the collision (V & T §114-b). If so, the further question is whether defendant is entitled to a qualified exemption pursuant to V & T §1104. This latter provision exempts the driver of an "authorized emergency vehicle" engaged in an "emergency operation" from various "rules of the road".

The trial testimony shows that the accident occurred on April 6, 2005 as plaintiff was proceeding southbound on Route 208, when defendant who had been proceeding northbound on Route 208, attempted a U-turn.

There is no dispute that defendant was operating a police vehicle, which qualifies as an "authorized emergency vehicle" under V & T §101. V & T §114-b defines "emergency operation" as including the operation of a police vehicle "engaged in...pursuing an actual or suspected violator of the law". This Court finds that Trooper Hastings was engaged in an "emergency operation" at the time of the collision. Trooper Hastings testified that he was on a routine traffic patrol, proceeding northbound on Route 208, when a red vehicle proceeding southbound passed him at about 72 mph. The trooper explained that he pulled into the shoulder area just north of Phillies Bridge Road, with the intent of making a u-turn in order to pursue the red car. While the Court recognizes that Trooper Hastings explained that this was a traffic infraction situation, and not an emergency, it is clear that once he pulled over and began the u-turn, he had initiated the pursuit of someone violating the law. As such, he was engaged in an "emergency operation" within the meaning of V & T §114-b (Criscione v. City of New York, 97 NY2d 152). That Trooper Hastings did not characterize the event as an "emergency" is of no moment on this question (Id.; O'Banner v. County of Sullivan, 16 AD3d 950). While plaintiff claims she did not see any vehicles in front of her in the southbound lane, the testimony confirms there were several curves in the road leading up to the accident scene and the Court credits defendant's testimony concerning the red car. This is so notwithstanding plaintiff's testimony on rebuttal that defendant approached her at the scene and inquired whether she had seen the speeding "white" car.

It follows that defendant is entitled to the qualified immunity provided by

V & T §1104. This qualified exemption authorizes the driver of an emergency vehicle to disregard the ordinary rules of prudent driving, including "regulations governing directions of movement or turning in specified directions" (V & T §1104 [b][4]). The statute does not, however, insulate a driver from liability if he "acted in reckless disregard for the safety of others" (Saarinen v. Kerr, 84 NY2d 494, 501; V & T §1104[e]). The Court of Appeals has "equated reckless disregard' with the well established tort concept of recklessness, which we defined [*3]as the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow and done with conscious indifference to the outcome" (Szczerbiak v. Pilat, 90 NY2d 553, 557).

Both parties agree that the weather was sunny and clear at the time of the accident. The testimony also confirms both parties had previously travelled this section of Route 208 on numerous occasions. While plaintiff's testimony was initially unclear as to the location of the collision, she eventually confirmed and defendant agreed that the collision occurred in the area just north of Phillies Bridge Road, in the west shoulder area of the southbound lane — as depicted by an X placed by plaintiff on defendant's Exhibit "C". Defendant testified that he initially pulled over in the east shoulder directly across the street. Looking north along Route 208 from this vantage point the road is flat and straight for several hundred feet, and then curves to the right (see defendant's Exhibit "C"; plaintiff's Exhibit "1").

Plaintiff testified that she first observed defendant's vehicle along the northbound shoulder from a distance of 100 yards. She was traveling at the posted speed limit, 55 mph. By her account, when she came within fifty yards, defendant began to make the u-turn and within seconds, despite her efforts to pull to the right while braking, the vehicles collided. The photos show damage along the driver's side of plaintiff's vehicle, in the area behind the front wheel (plaintiff's Exhibit "3"). The front fender of defendant's vehicle was torn off (plaintiff's Exhibit "2"). After impact, plaintiff's vehicle proceeded across a field, coming to a stop partially within the crossroad (plaintiff's Exhibit "2"). Based on the photos, the Court finds plaintiff's description of the collision as "almost a T impact" is more convincing than defendant's explanation that he had virtually completed his turn southbound at the point of impact. If that were so, the Court would expect that the fender at the front passenger side would have been damaged — it was not (see plaintiff's Exhibit "2").

The record confirms that defendant did not activate his lights or siren during this event. A police vehicle need not activate a siren and lights to qualify for the exemption (V & T §1104[c]) but the failure to do so is relevant in determining whether the officer's conduct is reckless under the circumstances presented. While not pertinent to the "emergency operation" issue discussed above, it is important to recognize that defendant considered this a routine traffic stop and not an emergency situation. In turning onto the shoulder in advance of making the u-turn, defendant testified that he looked for both northbound and then southbound traffic. He did not see any vehicles. Importantly, during this u-turn sequence defendant [*4]testified that he never stopped his car! He explained that he looked northbound for as long as he could but was unable to explain why he failed to observe plaintiff's approaching car. The impact occurred within 1 to 2 seconds after defendant's vehicle entered the southbound lane. Defendant never saw plaintiff's vehicle until immediately before impact.

From the distances described and as depicted in the photographs, it is difficult to correlate defendant's testimony that he looked north as he initiated the u-turn with his failure to see plaintiff's car. This simply does not square. The most telling detail is that defendant, by his own admission, never stopped his car in making the u-turn. While the Court can accept defendant's testimony to the extent he may have glanced north, he clearly failed to account for plaintiff's approacing vehicle. Nor had he activated his siren and lights in order to alert oncoming traffic. His explanation that the lights would have triggered a warning to the red car pales in comparison to alerting potential approaching vehicles on a State highway with a 55 mph speed limit as a matter of public safety.

Under the circumstances presented, this Court finds that defendant's abrupt, u-turn was reckless within the meaning of V & T §1104-e (Campbell v. City of Elmira, 84 NY2d 505; Corallo v. Martino, ___ AD3d ___ [2nd Dept. 1/27/09]; O'Banner v. County of Sullivan, supra, 16 AD3d 950; cf. Soto v. State of New York, 21 Misc 3d 1107A; Klein v. State of New York, Ct Cl, Mignano, J., UID No. 2003-029.308, 8/19/03). This was not a mere "momentary judgment lapse" (see Szczerbiak v. Pilat, supra, 90 NY2d 553; 557; Saarinen v. Kerr, supra, 84 NY2d at 502). Moreover, the Court finds no basis to assign any comparative fault to plaintiff. Accordingly, plaintiff is awarded judgment on the issue of liability, and the matter may proceed to trial on the issue of damages, as scheduled.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER

Dated: Albany, New York

February 24, 2009

______________________________________

Michael C. Lynch