Mitchell v City of New York

[*1] Mitchell v City of New York 2009 NY Slip Op 51904(U) [24 Misc 3d 1247(A)] Decided on August 12, 2009 Supreme Court, New York County Scarpulla, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2009
Supreme Court, New York County

Thomas Mitchell and Debra Mitchell, Plaintiff,

against

The City of New York, Defendant.



100843/06



For Plaintiff Thomas Mitchell:

The Law Offices of Jeffrey Melcer, PLLC

By Jeffrey B. Melcer, Esq.

150 East 58th Street, 23 rd Floor

New York, New York 10155

212-980-9470

For Plaintiff Debra Mitchell:

Ernest Owen Saasto, Esq.

67 East Shore Road

Huntington, New York 11743

516-226-5959

For Defendant the City of New York:

New York City Corporation Counsel

By Jason Warshaw, Esq.

100 Church Street

New York, New York 10007

212-788-0303

(no appearance for this motion)

Saliann Scarpulla, J.

Defendant the City of New York ("the City") moves pursuant to CPLR 3212 for summary judgment dismissing plaintiffs' complaint for injuries arising out of a car accident. The accident occurred on May 26, 2005, when plaintiff Thomas Mitchell ("Mitchell"), a police officer with the New York City Police Department, traveled as a passenger in a marked radio motor patrol vehicle ("the RMP") responding to an emergency radio run of robbery with a gun in progress. The RMP was driven by Mitchell's partner Veronica Schultz ("Schultz") when it crashed into a light pole.

Mitchell and Schultz offer diametrically opposed descriptions of the circumstances [*2]surrounding the crash. Mitchell alleges the following account of the events: In the early morning hours of May 26, 2005, as a light rain drizzled, Mitchell and Schultz stopped at a Dunkin Donuts shop for a coffee break in Nassau County, right outside of Queens. While Schultz was still in the shop waiting in line to order some coffee, Mitchell received a radio call inside the RMP of a robbery with a gun in progress. A couple of minutes later, Schultz returned to the RMP and placed the coffee tray with hot cups of coffee on the dashboard.

Schultz activated the emergency lights and drove off, accelerating very fast. The crash occurred two blocks away from the RMP's parked position in less than a minute's time. In a matter of seconds, the hot coffee spilled on Schultz, and the RMP went into a skid. Mitchell yelled out to Schultz to straighten the car, but Schultz panicked, lifted her hands from the steering wheel and pleaded several times, "Oh my God, what do I do?" Seconds later, the RMP crashed into a utility pole.

Schultz's account of the accident differs in crucial respects. Schultz alleges that it was Mitchell who took the coffee tray from her and held on to it as they drove off. Schultz avers that her top speed did not exceed thirty miles per hour. Schultz denies ever taking her hands off of the steering wheel, panicking, or pleading for help. According to Schultz, when the coffee spilled on her, she attempted to straighten the vehicle, but nonetheless lost control of the RMP as it fishtailed and went into a spin.

Mitchell and his wife, plaintiff Debra Mitchell, brought this action in January, 2006. The complaint asserts three causes of action on behalf of Mitchell, the first cause of action under the General Municipal Law § 205-e, the second cause of action for common law negligence, and the third cause of action directly against the City for the RMP's equipment failure and defective design. Plaintiff Debra Mitchell asserts the fourth cause of action on behalf of herself for loss of services and consortium.

The City now moves for summary judgment on several grounds. The City argues that Mitchell may not maintain a claim for negligent training or supervision of Schultz by the City because Schultz was acting within the scope of her employment at the time of the accident, and that the common-law negligence claim is precluded by "the firefighter's rule." The City also requests that the Court dismiss Mitchell's GML § 205(e) claim for failure to offer any evidence of reckless conduct by Schultz. Mitchell opposes the City's motion, except for the claim of negligent retention, training or supervision, which Mitchell claims to never have asserted in the first place.

Discussion

Under CPLR 3212(b), summary judgment "shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The motion must be supported by (1) an affidavit, (2) by a copy of the pleadings and (3) by other available proof, such as depositions and written admissions. CPLR 3212 (b). To warrant a court's directing judgment as a matter of law, it must clearly appear that no material [*3]issue is presented for trial. Epstein v Scally, 99 AD2d 713 (1st Dep't 1984). When a party has made a prima facie showing to entitle it to summary judgment, the burden shifts to the opposing party to show by evidentiary facts that a claim or defense is real and can be established at trial. Indig v Finkelstein, 23 NY2d 728 (1968); see also Vogel v Blade Contr. Inc., 293 AD2d 376, 377 (1st Dep't 2002). Conclusory allegations or denials are insufficient to either warrant or defeat summary judgment. McGahee v Kennedy, 48 NY2d 832, 834 (1979).

Common-Law Negligence Cause of Action

Under the common law, a firefighter or a police officer may not maintain an action for negligently caused injuries arising out of situations requiring their services, a principle which has come to be known as "the firefighter's rule." This doctrine is grounded on the public policy against awarding damages to the firefighters and police officers for hazards they are specifically trained and compensated to confront. Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 439 (1995).

To fall within the scope of the firefighter's rule, the injury sustained must be "related to the particular dangers which police officers are expected to assume as part of their duties." Cooper v City of New York, 81 NY2d 584, 590 (1993). An injury sustained by a police officer as a result of alleged negligent driving of a fellow officer in responding to an emergency call fits within the "firefighter's rule." Cooper, 81 NY2d at 591-92.Here, because Mitchell alleges that his injury occurred due to Schultz's alleged negligent and/or reckless actions in responding to a radio call of a robbery with a gun in progress, Mitchell's claim for ordinary negligence is precluded by the "firefighter's rule." Accordingly, Mitchell's second cause of action for common-law negligence is dismissed.

General Municipal Law § 205-e Cause of Action

General Municipal Law ("GML") § 205-e was enacted to remedy the harsh effects of the "firefighter's rule," and permits police officers to bring an action for injuries resulting from a tortfeasor's non-compliance with "any statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments." GML § 205-e(1). GML § 205-e affords police officers the right to bring suit against a municipal employer for the malfeasance of fellow police officers so long as the malfeasance violates a specific legal requirement of a statute, ordinance or rule. Gonzalez v Iocovello, 93 NY2d 539, 546 (1999)

In the verified bill of particulars, plaintiffs allege that Schultz violated Vehicle and Traffic Law ("VTL") §§ 1104, 1146, 1180, and 1226, Labor Law § 27-a, and NYCRR § 800.3. However, in opposition to the City's motion, plaintiffs address only VTL § 1104(e) and Labor Law § 27-a and make no mention of the other statutes set forth in the bill of particulars. Accordingly, as plaintiffs have abandoned reliance upon the other cited provisions, the Court addresses only VTL § 1104 and Labor Law § 27-a. [*4]

Labor Law § 27-a

Plaintiffs do not allege a violation of a specific workplace safety standard, but only a violation of the "general duty" clause under Labor Law § 27-a(3)(1), which imposes a legal duty on public employers to provide a safe workplace, free from any "recognized hazards" likely to cause serious harm. Generally, Labor Law § 27-a(1)(3) may constitute sufficient predicate for the purposes of GML § 205-e liability. Balsamo v City of New York, 287 AD2d 22, 28 (2nd Dep't 2001). However, in the case of a traffic accident, a public employee must offer specific evidence of a defective condition or faulty equipment in the vehicle, which contributed to the injury suffered in the accident. See Balsamo, 287 AD2d at 28 (finding a valid claim under Labor Law § 27-a(3)(1) and GML § 205-e for negligent installation of an unpadded computer console, which caused an officer to injure his knee in a car accident).

Here, Mitchell offered no evidence of the RMP's faulty or defective condition. Instead, Mitchell argues that the City violated Labor Law § 27-a(3)(1) by assigning to him a partner with the inadequate training and driving skills. Mitchell cites to no precedent to support a proposition that an inadequately trained police officer could qualify as a "recognized hazard" under Labor Law § 27-a(3)(1). Further, the police department's decisions regarding the oversight of police-controlled areas and, by extension, the breadth of the officers' training are not amenable to Labor Law § 27-a(3)(1). See Williams v City of New York, 2 NY3d 352, 368 (2004). Therefore, Labor Law § 27-a(3)(1) may not serve as a predicate for Mitchell's claim under GML § 205-e. In addition, as Mitchell has failed to submit any evidence of faulty or defective police equipment, the third cause of action for the City's alleged failure to provide adequate equipment to Mitchell is dismissed.

Vehicle and Traffic Law § 1104

A fellow officer's violation of VTL § 1104 may allow recovery to an injured officer against the City under GML § 205-e. Gonzalez, 93 NY2d at 546. VTL § 1104(a), (b) relieves drivers of authorized emergency vehicles, when involved in an emergency operation, from the rules of the road. This privilege, however, is qualified by VTL § 1104(e), which imposes on these drivers "the duty to drive with due regard for the safety of all persons" and disclaims any protection for such drivers "from the consequences of [their] reckless disregard for the safety of others." Under VTL § 1104(e), the manner in which a police officer operates his or her vehicle in responding to an emergency situation may not form the basis of civil liability to an injured third party unless the officer acted in "reckless disregard" for the safety of others. Meade v Chestnut, 53 AD3d 645 (2nd Dep't 2008).

The "reckless disregard" standard of care under VTL § 1104(e) "requires the trier of fact not to second-guess an officer's split-second weighing of choices," but instead to determine whether "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 [*5]harm would follow and has done so with conscious indifference to the outcome." Gonzalez v Iocovello, 93 NY2d 539, 551 (1999) (citation omitted); see also Campbell v City of Elmira, 84 NY2d 505, 510 (1994). The application of the "reckless disregard" standard entails a case-by-case factual inquiry into all relevant circumstances, and maybe, in appropriate circumstances, an issue of fact for trial. See Campbell, 84 NY2d at 513 (deferring to the jury's determination on the issue of the officer's recklessness where factual and credibility issues were in dispute).

In general, a police officer's exceeding the speed limit, standing alone, does not give rise to a GML § 205-e cause of action, because it is expressly privileged under VTL §1104(b)(3). Saarinen v Kerr, 84 NY2d 494, 503-04 (1994); see also Powell v City of Mount Vernon, 228 AD2d 572, 573 (2nd Dep't 1996). Also, a police officer's isolated instance of oversight is immune to civil liability under GML § 205-e. See Szczerbiak v Pilat, 90 NY2d 553, 557 (1997) (finding that the police officer's striking a pedestrian, while glancing down from the road momentarily to turn on his emergency lights, was "a momentary judgment lapse," which did not alone rise to the level of recklessness).

However, where plaintiff submits evidence showing that a police officer consciously and unjustifiably ignored a known risk while undertaking an emergency operation, the question of liability for a violation under VTL § 1104 should be left for jury determination. See Rockhead v Nelson Troche, 17 AD3d 118, 119 (1st Dep't 2005) (finding triable issues where the police chased a car through a solid red light in a heavily trafficked residential area, resulting in the chased vehicle crashing into an innocent bystander vehicle); see also O'Connor v City of New York, 280 AD2d 309 (1st Dep't 2001) (affirming the jury's finding of recklessness where the plaintiff's fellow police officer approached an intersection at high speed against the flow of traffic without giving any type of warning); Baines v City of New York, 269 AD2d 309 (1st Dep't 2000) (affirming the jury's finding of recklessness where the police officer blocked a lane of traffic and made no attempt to avoid the collision); Krulik v County of Suffolk, 62 AD3d 669 (2nd Dep't 2009) (finding triable issues as to police officer's recklessness where the officer's vehicle entered an intersection without first slowing down and activating the siren and emergency lights).

The City argues that Mitchell cannot establish a VTL § 1104(e) violation because Schultz did not recklessly operate the RMP. According to the City, there is no evidence of excessive speed, with Schultz's testifying that she did not reach a thirty mile-an-hour speed and with Mitchell hesitating to aver that the speed was over forty miles an hour. The City further argues that neither the placement of the coffee tray on the dashboard nor Schultz's loss of control of the RMP in the fishtailing may be viewed as reckless, but may only be characterized as "a momentary lapse in judgment and nothing more."

The parties' sharply differing versions of the accident raise numerous disputed issues of fact and credibility regarding whether Schultz acted with reckless disregard. Mitchell testified that Schultz precariously perched a coffee tray with cups of hot coffee [*6]on the dashboard at a time when she knew they would be responding to an emergency situation; that Schultz lost control of the vehicle after the coffee had spilled on her; and that she precipitated the crash when she completely abandoned the steering, throwing the hands up in the air and yelling "Oh, my God, what do I do know?" Mitchell's testimony raises a genuine question as to Schultz's conscious disregard of a known or obvious risk of an accident. This conclusion is further supported by the expert affidavits of Henry C. Branche and Luka Serdar, Jr., both of whom characterize Schultz's handling of the vehicle in the fishtail as reckless, not merely negligent.

In addition, the parties' deposition testimony raises an issue of fact as to the rate of speed at which the RMP traveled at the time of the crash. While Schultz maintains she never sped, both Schultz and Mitchell agree that the crash occurred about two blocks away from the Dunkin Donuts shop, less then than a minute after Schultz had started driving. Over a very short distance and time on the road, a tremendous extent of the damage was done to the RMP, including the dislodging of the rear axle. These facts raise additional triable issues as to the RMP's rate of acceleration and speed. These outstanding factual issues as to Schultz's violation of VTL § 1104(e) warrant denial of the City's motion for dismissal of the first cause of action for recovery under GML § 205-e.

In accordance with the foregoing, it is

ORDERED that the motion by defendant the City of New York for summary judgment dismissing plaintiffs' complaint is granted to the extent that the second cause of action for common law negligence and the third cause of action for faulty and defective equipment are severed and dismissed, and the motion is otherwise denied; and it is further

ORDERED that plaintiff Thomas Mitchell shall serve a copy of this decision and order upon defendant and upon the Clerk of Court (60 Centre St., Basement) who shall enter judgment in accordance with the foregoing, and shall also serve a copy of this order upon the Clerk of Trial Support (60 Centre St., Rm. 158) who shall schedule this action for trial.

This constitutes the decision and order of the Court.

Dated: New York, New York

August, 2009E N T E R

Hon. Saliann Scarpulla, J.S.C.