POLICE CAR IN ACCIDENT WHILE ENGAGED IN EMERGENCY OPERATION NOT LIABLE UNDER "RECKLESS DISREGARD" NEGLIGENCE STANDARD

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Gonzalez v. Zavala

Date: Oct. 25, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

Comment: Under New York State law, emergency responders (i.e., police, fire department, ambulance) operating a motor vehicle accident and while engaged in an emergency operation can only be sued if they drove with "reckless disregard" for the safety of another.

While it would seem that "reckless disregard" should usually be question for a jury to decide, New York's courts have been aggressive in throwing out injured plaintiffs' cases when presented with a summary judgment motion by a police, fire department or ambulance defendant. Such is the case here, where a police car was in pursuit of a car that sideswiped a taxi and jumped the curb, striking and injuring the plaintiff. The Nassau County Police Department and officer driving the vehicle are let out of this case by the appeals court on their (defense) summary judgment motion.

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In an action to recover damages for personal injuries, the defendant Nassau County Police Department appeals from an order of the Supreme Court, Nassau County (Spinola, J.), entered February 23, 2010, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs, and the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

According to the deposition testimony of Nassau County police officer Gary Renick, at about 12:38 A.M. on December 24, 2006, he observed a van make an illegal U‑turn on Hempstead Turnpike, fishtail into the opposite lane of traffic, and quickly accelerate. Although Renick activated his vehicle's lights and siren, the van did not pull over. Renick proceeded to pursue the van, which reached speeds of 70 miles per hour, failed to stop for 9 red lights, and swerved in and out of traffic. During the pursuit, which lasted approximately 1-1/2 minutes and covered approximately 2 miles, Renick stopped at each traffic light before catching up again with the van. As the van approached the Village of Hempstead, it sideswiped another vehicle, hit a taxi, and then mounted a sidewalk and struck the plaintiff, a pedestrian.

The plaintiff commenced this action to recover damages for personal injuries against, among others, the Nassau County Police Department (hereinafter the County). The County moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court denied the motion. We reverse.

Vehicle and Traffic Law Sec. 1104 qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation (see Kabir v. County of Monroe, 16 N.Y.3d 217, 222-224, 920 N.Y.S.2d 268, 945 N.E.2d 461; Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346; Saarinen v. Kerr, 84 N.Y.2d 494, 497, 620 N.Y.S.2d 297, 644 N.E.2d 988). The "[e]mergency operation" of a police vehicle includes "pursuing an actual or suspected violator of the law" (Vehicle and Traffic Law Sec. 114_b). While the driver is permitted to disregard certain rules of the road, such emergency operation of a police vehicle "shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons," and it does not "protect the driver from the consequences of his reckless disregard for the safety of others" (Vehicle and Traffic Law Sec. 1104[e]; see Campbell v. City of Elmira, 84 N.Y.2d 505, 509-513, 620 N.Y.S.2d 302, 644 N.E.2d 993).

Here, contrary to the contentions of the plaintiff and the defendant Gina Villamarin (hereinafter together the respondents), the County made a prima facie showing that Renick was engaged in an emergency operation at the time of the subject accident, and that his conduct did not rise to the level of reckless disregard for the safety of others (see Saarinen v. Kerr, 84 N.Y.2d at 503-504, 620 N.Y.S.2d 297, 644 N.E.2d 988; Nurse v. City of New York, 56 A.D.3d 442, 443, 867 N.Y.S.2d 486; Puntarich v. County of Suffolk, 47 A.D.3d 785, 786, 850 N.Y.S.2d 182; Daniels v. City of New York,28 A.D.3d 415, 416, 813 N.Y.S.2d 164). In opposition, the respondents failed to raise a triable issue of fact.

The respondents' remaining contention is without merit.

Accordingly, the County's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it should have been granted.

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