Ashlaw v State of New York

[*1] Ashlaw v State of New York 2021 NY Slip Op 50677(U) Decided on July 16, 2021 Court Of Claims McCarthy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2021
Court of Claims

Cathy Ashlaw and ARNOLD ASHLAW, Claimant(s)

against

State of New York, Defendant(s)



127932



Claimant's attorney:

POISSANT, NICHOLS, GRUE, VANIER & BABBIE, P.C.

By: Thomas A. Grue, Esq.

Luke J. Babbie, Esq.

Defendant's attorney:

LETITIA JAMES

Attorney General of the State of New York

By: Sean B. Virkler, Esq., AAG

Third-party defendant's attorney:
Christopher J. McCarthy, J.

Claimant, Cathy Ashlaw,[FN1] established, by a preponderance of the credible evidence, her claim against the State concerning a motor vehicle accident on March 2, 2016. The Court finds Defendant 100% liable because New York State Police (hereinafter, "NYSP") Trooper Leah Malbeuf, the driver of the other vehicle, failed to stop and yield the right-of-way at an intersection, which resulted in a collision with Claimant's vehicle and because the Court finds that Trooper Malbeuf's conduct was not otherwise privileged under law.

A bifurcated trial, addressing liability issues only, was held on April 9-10, 2019 at the Court of Claims in Utica, New York. There were five witnesses: Claimant; Trooper Malbeuf; Ronald Towne, a land surveyor; Claimant's expert, John Serth, a licensed professional engineer; and Defendant's expert, Trooper Gregory Hayes, a NYSP investigator. Thereafter, the parties were granted additional time to order a trial transcript, and then to submit post-trial memoranda.

FACTS

The Accident

The NYSP Collision Reconstruction Findings Report, prepared by Trooper Hayes, succinctly recites the uncontroverted facts of the accident that is the subject of this Claim (see Ex. 1; see also Ex. 22 [memo summarizing findings and conclusions of Exhibit 1]). Claimant was operating her motor vehicle in a generally northeasterly direction on County Route 38 on March 2, 2016 at approximately 5:19 p.m. in the Town of Norfolk, St. Lawrence County, New York. Trooper Malbeuf was driving a marked NYSP patrol unit in a generally northwesterly direction on County Route 49 in the same area. The report found that Trooper Malbeuf failed to stop at a posted stop sign on Route 49 at its intersection with County Route 38, and proceeded into the four-way intersection of the two roads at an impact speed of 49 mph.[FN2] The calculated [*2]speed of Claimant's vehicle at the time of the accident was approximately 33 mph.[FN3] County Route 38 does not have any traffic control devices or signs and vehicles traveling on that road have the right-of-way at the intersection. The un-posted speed limit in the area of the intersection was 55 mph on both roads. At the time of the accident, the roads were covered by packed snow with sporadic areas of bare asphalt present. The impact occurred when Defendant's vehicle crossed in front of Claimant's vehicle, causing Claimant's vehicle to strike Defendant's vehicle. Each driver was wearing her seatbelt. The tires on each car had adequate tread depth and, except for those damaged in the accident, all were found, after the accident, to have had adequate tire pressure. Air bags deployed in both vehicles. Claimant sustained serious injuries as a result of the collision, and was treated for: right pulmonary contusion; right hemothorax; fractured left shoulder; chest and lung contusions; and a puncture wound to the left lower leg (see Ex. 1). The Court concluded in its Decision and Order (see Ashlaw v State of New York, UID No. 2018-040-014[Ct Cl, McCarthy, J., Feb. 5, 2018]), that Claimant sustained a serious injury pursuant to Insurance Law § 5102(d), and that portion of her Motion for summary judgment was granted. Ms. Ashlaw has no recollection of the accident (Tr., p. 402). The weather was clear, there was no precipitation at the time of the accident, and it was still daylight (Tr., p. 322; Ex. 25, p. 43).

Events Preceding the Accident

Trooper Malbeuf was at the NYSP station in Winthrop, New York on March 2, 2016, when a dispatcher directed her to go to a Waddington, New York, address to take a statement from a person regarding a domestic violence incident that had happened two days earlier (Tr., pp. 191-193). The dispatcher advised Trooper Malbeuf that the individual was still at work and also would be traveling to the meeting place, so there was no need for the officer to rush to the interview (Tr., pp. 192-193, 204). Trooper Malbeuf knew that the complainant would be safe at that location, and it was not an emergency (Tr., p. 194; Ex. 25 [transcript of Trooper Malbeuf's examination before trial (hereinafter "EBT") conducted on April 11, 2017], p. 40). As a result, Trooper Malbeuf continued to work on an unrelated project with another Trooper at the station for a period of time before departing to travel to the meeting (Tr., pp. 192-193; Ex. 25, pp. 35-37).

Trooper Malbeuf used the keyboard mounted on the center console of her NYSP patrol unit to enter the address to which she was responding into the vehicle's computer navigation system (Tr., pp. 200, 220; Ex. 25, p. 44). She could have done that before she left the police station in Winthrop, or she could have pulled to the side of the road at any time during her trip to type the information into the computer (Tr., p. 205; Ex. 25, pp. 88-89). Instead, she elected to enter the address as she drove, keeping her left hand on the steering wheel while typing with her right hand (Tr., pp. 264, 320); see Ex. 50 [photo of keyboard and computer in patrol unit taken after the accident]). The parties disputed whether or not the NYSP had a formal policy that prohibited Troopers from entering information into the computer while driving, but Trooper Malbeuf agreed that the preferred practice was to pull over to the side of the road, if possible, before using the computer, because it could be a distraction to driving (Tr., p. 278; Ex. 25, p. 11; see Ex. 12 [2010 NYSP memorandum re: use of handheld mobile devices]). She consciously [*3]chose to type the address into the computer while driving despite the fact that there was no emergency that required her to do so, and with the knowledge that there were inherent dangers in that course of action, including that she might go through an intersection without knowing that it was there (Tr., p. 279).

At her EBT, Trooper Malbeuf said that she was typing the address into the computer as she arrived at a railroad crossing (Tr., p. 327; Ex. 25, p. 44) that intersected County Route 49. County Route 49, from the railroad tracks to its intersection with County Route 38, is straight, long, and uniform, with a slight uphill grade (Tr., pp. 88 [Hayes], 217-218 [Malbeuf], 366 [Serth]; Ex. 98 [photo of roadway]). According to Mr. Towne's measurements, the distance from the crossing gate at the railroad tracks to the stop sign at the intersection was 1023.5 feet (see Exs. 10-11 [survey maps of area]; Ex. 75 [photo taken from just before railroad tracks]).[FN4]

There were three visual cues to alert drivers on that stretch of County Route 49 that they were approaching the intersection with County Route 38 where they would need to stop and yield the right of way. The first was a stop ahead sign located 183.6 feet past the crossing gate (see Exs. 75, 75-A, 98 [photos]). 589.3 feet farther along County Route 49 was a green sign showing the names and directions for two nearby towns, along with a blue trail blazer symbol for County Route 38 (see Exs. 36, 69, 76-77 [photos]).[FN5] 250.6 feet beyond the directional sign was the stop sign itself (see Exs. 31-32, 70, 82 [photos]).[FN6] The center of the intersection with County Route 38 lay another 76.5 feet after the stop sign, or about 1100 feet from the railroad tracks (1023.5 [distance from tracks to stop sign] + 76.5 = 1100 feet).

Mr. Serth said that each of the three signs was visible from a distance of 1100 or 1200 feet before the intersection, or, in other words, even before drivers reached the railroad crossing (Tr., pp. 364-365; see Ex. 75-A). Trooper Hayes, similarly, could not recall anything that would prevent drivers from seeing each of the signs (Tr., pp. 91-92). Trooper Malbeuf also confirmed that nothing impeded her visibility at the time of the accident (Tr., p. 256; Ex. 25, p. 74). Mr. Serth calculated that it would take a vehicle at about 50 miles per hour (hereinafter, "mph"), approximately 14 seconds to travel from the grade crossing to the stop sign (Tr., pp. 377-380). The crash data retrieved from Trooper Malbeuf's patrol unit records that the vehicle was traveling between 49-52 mph during the five seconds immediately preceding the accident (see Ex. 1, p. 11).

Trooper Malbeuf testified that she glanced down several times as she drove along that portion of County Route 49, in order to type the address into the computer, after which she would [*4]look back up at the road (Tr., pp. 206, 209, 220, 223, 260, 264-265, 322, 329-330). She was sufficiently distracted, however, that she missed each of the visual cues that she was approaching an intersection where she would need to stop (Tr., pp. 211-212, 223-225, 230, 262). She was entering the address into the computer when she crossed the railroad tracks and was doing so again immediately before the accident occurred, and so, only saw the stop sign when she was right next to it, about one second before the crash (Tr., pp. 220, 225, 229, 326-329; Ex. 25, pp. 44, 55). Trooper Malbeuf said that the cause of the accident was her failure to see the stop sign because she was looking down at the computer for a brief moment to enter the address, which distracted her from looking at the roadway (Tr., pp. 260, 282; Ex. 25, p. 74). Trooper Hayes agreed that it was a significant distraction for Trooper Malbeuf to have missed all three signs over the course of 1023 feet (Tr., p. 347).

Trooper Malbeuf was generally familiar with the area of the intersection, passed through there about once a week, and knew that there was a stop sign at the intersection (Tr., pp. 190, 202, 237). She did not see the stop sign that evening, however, and did not realize that she was about to enter the intersection until she was right upon it, and so did nothing intentional to slow her vehicle (Tr., pp. 225, 232, 266; Ex. 25, pp. 55, 79). It was her intent to obey all traffic controls, including stop signs and red lights (Tr., p. 228). Had she seen the stop sign, she would have stopped first, and then proceeded through the intersection (Tr., pp. 219, 226). There was no emergency that required her to go through the intersection without stopping first, and she agreed that doing so created a significant danger of an accident (Tr., pp. 282-283; Ex. 25, pp. 89, 93). In any event, she never looked to her left or her right to see if there was traffic on County Route 38 (Tr., pp. 282-283, 295-299; Ex. 25, p. 55).

Trooper Malbeuf remembered that, when she saw the stop sign, she tried to apply the brakes, but did not know if she actually succeeded in doing so before the collision (Tr., pp. 231-232). Based upon the .45 coefficient of friction determined by the NYSP reconstruction team (see Tr., pp. 116-121; Ex. 23), Mr. Serth calculated that Trooper Malbeuf, at most, braked for one-tenth of a second in order to slow her patrol unit from 50 mph to 49 mph (Tr., pp. 373-74). The onboard crash data recorder, similarly, noted the same reduction in speed occurred sometime in the final one-half second before impact (see Ex. 1, p. 11 [chart, columns 1 & 2]; Tr., p. 157 [Hayes' interpretation of data]). Trooper Hayes said that "the braking that did occur was probably fairly negligible" (Tr., p. 171). Mr. Serth said that, at the point Trooper Malbeuf realized that she needed to stop, she would have needed to have been traveling at no more than 7-10 mph in order to have stopped successfully (Tr., p. 378). Trooper Malbeuf agreed that, traveling at 50 mph, she probably needed to plan a couple of hundred feet in advance of the stop (Tr., p. 289).

Trooper Malbeuf further agreed that both buildings and vegetation obstructed the view of the intersection so that a driver would need to get very close to the stop sign and look in both directions to be able to see traffic on County Route 38 before proceeding through the intersection (Tr., pp. 284-289, 293-294; Ex. 25, p. 87; see Exs. 31-32, 36, 69-70, 76, 79, 81-84 [photos showing obstructed view]). Trooper Hayes, likewise, said that, given the quite limited sight lines, neither driver could have been expected to see the other, and agreed that the only safe way for Trooper Malbeuf to have entered the intersection, would have been for her to come to a stop and look both ways (Tr., pp. 341-342, 349-350; Ex. 27 [Hayes EBT conducted on April 24, [*5]2017], pp. 42-43).

LAW

When the driver of an authorized emergency vehicle is involved in an emergency operation, he or she is permitted by statute to engage in privileged conduct that otherwise would be prohibited by certain traffic laws and/or regulations, including, as pertinent here, proceeding "past a stop sign, but only after slowing down as may be necessary for safe operation" (VTL §§ 1104 [a], [b][2]). By statute, every police vehicle is an authorized emergency vehicle within the meaning of VTL §§ 1104 [a] and [b] (VTL § 101). Moreover, the operation of an authorized emergency vehicle responding to a police call constitutes an emergency operation (VTL § 114-b). "Given the legislative determination that a police dispatch call is an 'emergency operation,' it is irrelevant whether the officers believed that the [police dispatch] call was an emergency" (Criscione v City of New York, 97 NY2d 152, 158 [2001]; see O'Banner v County of Sullivan, 16 AD3d 950, 952 [3d Dept 2005]).

The foregoing privileged conduct, however, does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor does it protect such driver from the consequences of his or her reckless disregard for the safety of others (VTL §1104 [e]). Liability may attach under the reckless disregard standard upon a showing that " '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 harm would follow' and has done so with conscious indifference to the outcome" (Frezzell v City of New York, 24 NY3d 213, 217 [2014], quoting Saarinen v Kerr, supra at 501, quoting Prosser and Keaton, Torts § 34, at 213 [5th ed]; see also Szczerbiak v Pilat, 90 NY2d 553, 557 [1997]; Green v Covington, 299 AD2d 636, 637-638 [3d Dept 2002]).

"[P]arties may be found to have acted in violation of the statutory formulation [of VTL § 1104 (e)] when they consciously—and, thus, with general intentionality, not necessarily with intent to cause particular injury— disregard known serious risks of harm. The decision to ignore a grave risk, which is likely to result in harm to others, may satisfy the intentional aspect sufficient to impose liability" (Campbell v City of Elmira, 84 NY2d 505, 510-511 [1994]; see Tutrani v County of Suffolk, 64 AD3d 53, 59 [2d Dept 2009]). "Thus, while the Legislature shields [governmental entities] from simple negligence and mere errors in judgment, it also protects innocent victims and the general public by expressly not relieving emergency operators and their [governmental] employers of all reasonable care" (Campbell v City of Elmira, supra at 513).

Moreover, "the reckless disregard standard of care in [VTL] § 1104[e] only applies when a driver of an authorized emergency vehicle involved in [such] an emergency operation engages in the specific conduct exempted from the rules of the road by [VTL] § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence" (Kabir v County of Monroe, 16 NY3d 217, 220 [2011]; see Rouse-Harris v City of Schenectady Police Dept., 124 AD3d 1124, 1125 [3d Dept 2015]; Tatishev v City of New York, 84 AD3d 656, 656-657 [1st Dept 2011]). In other words, the privilege does not extend to "any and all conduct of [such] driver" (Kabir v County of Monroe, supra at 224).

VTL §§ 1142 (a) and 1172 (a) specifically address the rights and obligations of vehicles at intersections controlled by stop signs and obligate a driver subject to such a traffic control device to stop and yield the right-of-way to an approaching vehicle that is close enough to pose [*6]an immediate hazard (see Maliza v Puerto-Rican Transp.Corp., 50 AD3d 650, 651-652 [2d Dept 2008]; Anastasio v Scheer, 239 AD2d 823, 824 [3d Dept 1997]). A driver who fails to yield such right-of-way is in violation of VTL § 1142 (a) and is negligent as a matter of law (see Maliza v Puerto-Rican Transp.Corp., supra at 651; Weiser v Dalbo, 184 AD2d 935, 936 [3d Dept 1992], lv dismissed 80 NY2d 925 [1992]; see also LeClaire v Pratt, 270 AD2d 612, 612 [3d Dept 2000]; Holleman v Miner, 267 AD2d 867, 868-869 [3d Dept 1999]). Moreover, the driver with the right-of-way is entitled to anticipate that the other driver will comply with his or her obligation to yield and give way at the stop sign (Maliza v Puerto-Rican Transp.Corp., supra at 652; LeClaire v Pratt, supra at 613). Finally, the fact that a driver's view may be obstructed is not exculpatory and he or she remains under a common-law duty to continue to exercise care and " 'to see what by the proper use of [his or] her senses [he or] she might have seen' " (Weiser v Dalbo, supra quoting Olsen v Baker, 112 AD2d 510, 511 [3d Dept 1985], quoting Weigand v United Traction Co., 221 NY 39, 42 [1917]; see Katanov v County of Nassau, 91 AD3d 723, 725 [2d Dept 2012]; 1A NY PJI 2:80 at 509 [2020]).

DISCUSSION

The Court has considered all of the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor has they did so. The witnesses provided generally sincere and forthright testimony. The Court found the testimony of Trooper Hayes, and Mr. Towne and Mr. Serth to be particularly persuasive. Trooper Malbeuf's testimony at trial was, in a few places, more equivocal than that which she offered at her EBT. Still, her testimony evidenced, to the Court's mind, heartfelt remorse and contrition for her role in this accident. Nevertheless, the State's negligence is manifest. The Court finds that Claimant has established her Claim by a preponderance of the credible evidence and that Defendant is 100% liable for the damages sustained by Ms. Ashlaw.

As the Court found in its earlier Decision and Order on Claimant's Motion for summary judgment, Trooper Malbeuf was driving an authorized emergency vehicle involved in an emergency operation. Thus, the privilege to engage in conduct that otherwise would be prohibited by the VTL was, potentially, available to cover her driving. Whether or not there was an emergency situation makes no difference.

The Court now finds, however, that the exemption does not apply in this Claim because, while Trooper Malbeuf proceeded past the stop sign, she did not first slow down as necessary for safe operation, as required by VTL § 1104 (b)(2). Her belated attempt to engage the brakes during the last second before the collision failed to reduce the speed of her patrol unit to any meaningful degree, going from 50 to 49 mph. The Court concludes that those efforts were insufficient, as evidenced by the collision that ensued, and that, therefore, Trooper Malbeuf was not engaged in the specific conduct exempted from the rules of the road by VTL § 1104 (b)(2). As such, her conduct must be assessed by the principles of ordinary negligence.

The Court further finds that Trooper Malbeuf's actions violated VTL §§ 1142 (a) and 1172 (a). The exemption under VTL § 1104 (b)(2) being inapplicable, Trooper Malbeuf was under a duty to stop at the stop sign and yield the right-of-way to Claimant's vehicle. She failed to do so and is negligent as a matter of law. Claimant was under no obligation to anticipate that Trooper Malbeuf would breach her duty to stop and yield, and bears no culpability for the collision that followed from that breach.

The Court also finds that Trooper Malbeuf breached her common-law duty to exercise care and see what was there to be seen. It is noteworthy that the officer never intended to avail herself of the privilege provided by VTL § 1104 (b)(2). Rather, she intended to observe all traffic controls, including the stop sign and, had she seen it in a timely fashion, would have stopped before proceeding into the intersection. She failed to heed the stop sign only because she did not see it. She did not see it because she was distracted repeatedly as she glanced down for brief moments to type a portion(s) of the address into the computer. Trooper Malbeuf's distraction persisted over a 1000-foot stretch of County Route 49. She was typing as she crossed the railroad tracks, and again was typing as she came upon the stop sign. Trooper Hayes said that her failure to see the three visual cues that the intersection lay ahead constituted a significant distraction, and the Court agrees. She did not look in either direction before entering the intersection.

Trooper Malbeuf is not excused because buildings and vegetation obstructed her view of the intersection. To the contrary, such conditions commanded that she exercise heightened vigilance to make sure she saw what by the proper use of her senses she might have seen. In short, the Court concludes that Trooper Malbeuf engaged in distracted driving and failed to keep a proper lookout. Defendant's breach of the duties owed to Claimant were the sole proximate cause of Ms. Ashlaw's injuries.

Assuming, arguendo, that Trooper Malbeuf complied with VTL §1104(b)(2) so that her conduct fell under the privilege afforded by that provision, and further that the reckless disregard standard applied, the Court would not hesitate to find Defendant liable because it finds that Trooper Malbeuf drove with reckless disregard for the safety of others and thereby breached the duty she owed to drive with due regard for such safety. Trooper Malbeuf agreed that the preferred practice was to pull over to the side of the road in order to type the address into the computer because it could be a distraction to driving. She chose, instead, to type while she drove, even though she knew of the inherent dangers of doing so, including that she might go through an intersection without knowing that it was there.

Her distracted typing occurred on several occasions over a 14 second period, during which she traveled over 1000 feet, and was so significant that she missed three visual cues that she was rapidly approaching a stop sign that she knew existed. To the Court's mind, such conduct was qualitatively different than a single, momentary, lapse in judgment, which might be excused under the reckless disregard standard (cf. Szczerbiak v Pilat, supra at 557 [no violation of reckless disregard standard where officer glanced down from road momentarily to activate emergency lights and headlights with no pedestrian traffic in sight and several blocks from next intersection]).

She chose that course of action even though there was no need for her to rush to her interview, and even though she knew that going through the intersection without stopping first created a significant risk of an accident. As the Court noted in its earlier Decision and Order, "[w]hile the nature of the underlying police call or the officer's perception of its urgency is irrelevant for purposes of ascertaining whether the officer was engaged in an emergency operation [within the meaning of the statute], 'the nature of the call nevertheless is relevant in determining whether a responding officer's conduct was in reckless disregard for the safety of others' " (Ashlaw v State of New York, supra, quoting Muniz v City of Schenectady, 38 AD3d [*7]989, 991 [3d Dept 2007], quoting O'Banner v County of Sullivan, supra at 952, quoting Allen v Town of Amherst, 8 AD3d 996, 997 [4th Dept 2004]). Here, the Court finds that the lack of urgency associated with the dispatch call Trooper Malbeuf was assigned, as evidenced by her understanding that the complainant would be traveling to the meeting place, was safe, and the officer's decision to continue working on an unrelated project before setting out for Waddington, further point to the ineluctable conclusion that Trooper Malbeuf's conduct was in reckless disregard for the safety of others.

Moreover, evidence of the precautions a defendant driver took before engaging in the privileged conduct has been noted when courts have determined that such conduct did not rise to the level of reckless disregard for the safety of others, i.e., action taken with conscious indifference to the consequences of such actions (see Flood v City of Syracuse, 166 AD3d 1573, 1574 [4th Dept 2018] [no reckless disregard where police officer checked driver's side and rearview mirrors, turned his head, and saw no vehicles behind him, before attempting to make U-turn to pursue a suspect in a domestic incident]; Levere v City of Syracuse, 173 AD3d 1702, 1704 [4th Dept 2019] [no reckless disregard found where defendant police officer took several precautions before proceeding into an intersection against a red light while responding to a highest priority call, including slowing his vehicle to an almost complete stop, looking both to his right and left, then slowly proceeded into the intersection at a speed of about five miles per hour, and slamming his brake when other vehicle came into the officer's peripheral vision]; cf. Flack v State of New York, 57 AD3d 1199, 1200-1201 [3d Dept 2008][police officer's conduct found to have been reckless where he pursued another vehicle on a winding road during heavy rain at speeds in excess of 80 mph, a speed he admitted posed a significant risk to the public]). Here, by contrast, the only precaution Trooper Malbeuf took was to brake within the last second, which slowed her vehicle one mph.

The purpose of the reckless disregard standard in VTL § 1104 (e) is to give "operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road" (Saarinen v Kerr, 84 NY2d 494, 502 [1994]; Ayers v O'Brien, 13 NY3d 456, 459 [2009]). The Court of Appeals further reasoned that "the possibility of incurring civil liability for what amounts to a mere failure of judgment could deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants" (Saarinen v Kerr, supra; Ayers v O'Brien, supra; see Cable v State of New York, 63 Misc 3d 549, 552 [Ct Cl 2018]). The Court finds that rationale would not be served by treating Trooper Malbeuf's conduct as privileged because, here, she neither acted decisively, nor did she take a calculated risk in order to save life or property. To the contrary, she understood there to be no urgency in responding to the dispatch. Her stated intention was to obey all traffic control devices, including stop signs. She made no decision to take a calculated risk. Rather, she simply was distracted by typing the address into the onboard computer, a task she could have performed before she left the police station in Winthrop, or at any point en route, by pulling over to the side of the road. Thus, she failed to see the visual cues as she approached the intersection, and was unable to stop when she finally saw the stop sign at the last instant. The Court concludes that her conduct breached the duty she owed to drive with due regard for the safety of all persons, and constituted reckless disregard for the safety of others, and specifically, in this case, Ms. Ashlaw.

For all of the foregoing reasons, the Court concludes that Claimant has established here [*8]that liability may attach under the reckless disregard standard because she proved that Trooper Malbeuf's actions demonstrated reckless disregard for a known or obvious risk of harm to others, the significant danger of an accident that was so great as to make it highly probable that a collision would occur, and conscious indifference on the part of the Trooper as to the outcome (Muniz v City of Schenectady, supra at 991; O'Banner v County of Sullivan, supra at 952; Lupole v Romano, 307 AD2d 697, 698 [3d Dept 2003]).

The Court further finds that certain affirmative defenses posited by Defendant were not established by a preponderance of the credible evidence. The governmental function immunity doctrine does not apply to this Claim. Rather, where a claimant alleges that the State and/or its employee was negligent in the ownership and operation of an authorized emergency vehicle, then either the reckless disregard standard of VTL § 1104 (e) applies if it is determined that the vehicle was engaged in one of the privileged activities enumerated in VTL § 1104 (b), or else ordinary negligence principles apply (Kabir v County of Monroe, supra at 222; Santana v City of New York, 169 AD3d 578, 578 [1st Dept 2019]). As noted above, the Court finds that Claimant bears no culpability with respect to this accident. The record does not support the assertion that Claimant's injuries were the result of an independent, superseding and intervening cause over which Defendant had no control. Likewise, the Court rejects any assertion that the incident was spontaneous, unavoidable, and created by an emergency situation to which the State's employee properly responded.

Finally, the Court notes that, at the beginning of the trial, Motions M-93681 and M-93682 both were withdrawn by Claimant (Tr., p. 16).

CONCLUSION

By a preponderance of the credible evidence that was presented, the Court finds Defendant 100% responsible for the injuries sustained by Claimant in this accident.

All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter interlocutory judgment accordingly. The Claim will be scheduled for trial on the issue of damages as soon as practicable. Instructions concerning the creation of a discovery schedule will be provided under separate cover.

Footnotes

Footnote 1:As the cause of action relating to Arnold Ashlaw is derivative in nature, all references to Claimant shall be to Cathy Ashlaw unless otherwise noted.

Footnote 2:Trooper Hayes' own independent calculation of the approximate speed of Trooper Malbeuf's vehicle was corroborated by the speed recorded by the crash data recorder in Trooper Malbeuf's Patrol unit (see Tr., pp. 144-147, 152; see Ex. 22).

Footnote 3:The data from Claimant's vehicle did not include an impact speed because of limitations in the software given the age of the vehicle (see Ex. 22).

Footnote 4:The parties stipulated that each of the signs was present at the time of the crash and that they were in the same location as when Mr. Towne measured them (Tr., pp. 89-90). All distances noted were determined by Mr. Towne on June 19, 2018 (Tr., p. 21; Exs. 10 & 11).

Footnote 5:Trooper Hayes agreed that the directional sign would give a visual cue to a driver as to the presence of an intersection (Tr., p. 91).

Footnote 6:Trooper Malbeuf and Mr. Serth separately agreed that each of the stop ahead, directional, and stop signs, served as visual cues that a driver would need to stop at an upcoming intersection (Tr., pp. 215, 225, 261 [Malbeuf], 361-363 [Serth]).