Tighe v City of Saratoga Springs

[*1] Tighe v City of Saratoga Springs 2009 NY Slip Op 51199(U) [23 Misc 3d 1139(A)] Decided on June 2, 2009 Saratoga Springs City Ct Wait, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
Saratoga Springs City Ct

John J. Tighe, Plaintiff,

against

City of Saratoga Springs Saratoga Springs Department of Public Works, Defendant.



SC2008-2287



For plaintiff:

William C. Firth, Esq.

Thuillez, Ford, Gold, Butler & Young

For defendant:

Peter Scolamiero, Esq.

Burke, Scolamiero, Mortati & Hurd

Jeffrey D. Wait, J.

Plaintiff commenced this action to recover damages to his car caused by a snowplow operated by Robert Fuller and owned by the City of Saratoga Springs. The accident occurred on February 27, 2008, at approximately 5 o'clock in the morning. A bench trial was held, and the parties stipulated that plaintiff's damages were $1,170. Mr. Fuller thereafter testified about the circumstances leading up to the accident. According to this testimony, a mix of snow and sleet and freezing rain had been falling throughout the preceding day and night, causing significant accumulation and high snow banks along the side of what was already a very narrow street. At the time of the accident snow and sleet were continuing to fall, and it was still dark out. The street was covered with as much as a few inches or more of a heavy snow and ice, and Mr. Fuller knew that it was also icy underneath.

After Mr. Fuller turned from Lake Avenue onto Warren Street and drove about a block, heading north, he saw plaintiff's car. The car was on the opposite side of the street, facing south. Mr. Fuller stated that the car was not as close to the curb/snow bank as it could have been, but that it was nevertheless lawfully parked. As Mr. Fuller approached the car and started to pass it he apparently slowed down to a crawl. Just then, however, the leading edge of the plow attachment [*2]dug into some ice on the right side of the street, causing the front end of the truck to shift suddenly to the left, whereupon the plow attachment struck plaintiff's car.

Mr. Fuller also testified that the distance from the outside of plaintiff's car to the snow bank on the other side of the street was approximately nine feet, and that the span of the plow attachment is about eight feet when at an angle and being used to plow. According to Mr. Fuller, it appeared that there was clearance of about six to eight inches between the plow attachment and plaintiff's car. Mr. Fuller also testified that it is common for the plow to get "hung up" during an ice storm, as it did here, and that you cannot anticipate when it's going to happen.

The city may be held liable only if plaintiff demonstrates that Mr. Fuller operated the snowplow with "reckless disregard for the safety of others." Vehicle and Traffic Law § 1103 (b). "A person acts recklessly when he acts in conscious disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow." Haist v. Town of Newstead, 27 AD3d 1133 (4th Dept. 2006). Based upon the facts elicited at trial, I find that plaintiff has met his burden. Again, the conditions were icy; it was dark out; the margin of error was as little as six inches; and, Mr. Fuller knew that the entire vehicle might, at any moment and without warning, lurch suddenly to the left. It was thus a known and obvious risk - without, apparently, any attendant compelling reason to proceed. The probability of harm was also high, since virtually any lateral movement of the plow was certain to result in a collision. Inasmuch as Mr. Fuller proceeded past plaintiff's car "with conscious indifference to the outcome," Saarinen v. Kerr, 84 NY2d 494, 501 (1994), plaintiff is entitled to judgment in his favor in the stipulated amount of $1,170, together with interest, costs and disbursements.

This Decision shall constitute the Order of the Court.

Dated this 2nd day of June, 2009Jeffrey D. Wait

at Saratoga Springs, New York.City Court Judge