New York Criminal Lawyer Blog
A New York DWI Lawyer said that, at 3:57 p.m. on September 20, 2004, defendant a road patrol deputy in the Monroe County Sheriff’s Office, was on routine patrol in a marked police vehicle when he received a radio dispatch from the Office of Emergency Communications dispatch or “911 center” directing him to respond to a stolen vehicle report at an address in Henrietta, New York. At the time, he was heading south on West Henrietta Road, nearing a traffic light at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, which marks the border between the Towns of Brighton (on the north side) and Henrietta (on the south side).
Defendant soon received a second radio dispatch, which requested backup for another officer who was responding to a burglary alarm at a location in Henrietta. Because the 911 center categorized the burglary alarm as “classification one” meaning “a serious call that needs immediate attention” the deputy acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report, which was assigned a higher classification and therefore a lower priority. At 4:02 p.m., the dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy’s vehicle.
A New York Drunk Driving Lawyer said that, defendant did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40–mile–per–hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch. The deputy explained that he was not familiar with the location of the burglary alarm, and “due to the amount of traffic during that time of day, he didn’t want to initiate any emergency equipment without knowing where he was positively going.” He therefore touched the terminal and “looked down for two to three seconds” at the display “to view the names of the cross streets.” When the deputy lifted his gaze, he realized that “traffic had slowed.” Although he immediately applied his brakes, he was unable to stop before rear ending the vehicle in front of him, which was driven by plaintiff. There are three southbound lanes—two through lanes and a left-hand-turn lane—at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road. Plaintiff testified that she was traveling in the left travel lane. She had stopped for a red traffic light, and was just beginning to move forward slowly toward the congested intersection when her car was hit.
A New York Criminal Lawyer said that, in October 2005 and February 2006 Plaintiff brought actions, subsequently consolidated, against Monroe County, defendant and others, alleging serious injury under New York’s No–Fault Law. In May 2008, defendants moved for summary judgment to dismiss the complaints, and in July 2008, Plaintiff cross-moved for partial summary judgment on liability. The parties disputed whether Vehicle and Traffic Law § 1104 applied; making defendant liable for the accident only if he acted with “reckless disregard for the safety of others”.
A New York DWI Defense Lawyer said that, the court concluded that defendant’s conduct was covered by section 1104, and that plaintiff had not raised a triable issue of fact as to whether he acted with reckless disregard. On December 30, 2009, the Appellate Division reversed, with two Justices dissenting. The majority held that the reckless disregard standard in section 1104(e) is limited to accidents caused by conduct privileged under section 1104(b). Because defendant’s injury-causing conduct was not exempt under this provision, the majority concluded that “the applicable standard for determining liability was the standard of ordinary negligence”. The court further observed that “a rear-end collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle”; therefore, “partial summary judgment on liability in favor of the person whose vehicle was rear-ended is appropriate in the absence of a non-negligent explanation for the accident”
Concluding that plaintiff had met her burden on the cross motion and that defendants had not put forward a non-negligent explanation, the court reinstated the complaint against defendants and granted plaintiff’s cross motion for partial criminal summary judgment on liability. The dissent interpreted section 1104 differently, taking the position that the reckless disregard standard was applicable to any injury-causing conduct of a driver of an emergency vehicle involved in an emergency operation. On March 19, 2010, the Appellate Division granted defendants leave to appeal, and certified to us the question of whether its order was properly made.
The issue in this case is whether the Appellate Division erred in granting defendants leave to appeal, and whether its order was properly made.
The court affirms and therefore answers the certified question in the affirmative. Section 1104 was put in place in 1957 as part of what is now title VII of the Vehicle and Traffic Law, which was intended to “create a uniform set of traffic regulations, or the ‘rules of the road’ to update and replace the former traffic regulations, and bring them into conformance with the Uniform Vehicle Code adopted in other states”. Subdivision (a) of this provision empowers the driver of an “authorized emergency vehicle” (defined in Vehicle and Traffic Law § 101) when involved in an “emergency operation” in Vehicle and Traffic Law § 114–b) 4 to “exercise the privileges set forth in this section [1104], but subject to the conditions herein stated. The statute then lists these privileges in subdivision (b): “1. Stop, stand or park irrespective of the provisions of this title [VII]; “2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation; “3. Exceed the maximum speed limits so long as he does not endanger life or property; “4. Disregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104[b] ).
Subdivision (c) of section 1104 sets out prerequisites or conditions upon the exercise of the privileges listed in subdivision (b): except in the case of police vehicles or bicycles “the exemptions herein granted” are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals. Drug possession was not involved.
Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others”. Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.
But criminal defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “the foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).
The dissent complains that we have “interpreted Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others’ ”. The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “the foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.
Further, the dissent opines that the “evident intent” of the reference to “foregoing provisions” in Vehicle and Traffic Law § 1104(e) “was to ensure that the creation of the privileges earlier in the statute would not be misinterpreted as precluding an emergency responder from being held accountable when he or she caused an accident while engaged in privileged conduct”. Thus, such emergency responder “cannot receive a traffic citation” for conduct enumerated under section 1104(b); and “the fact that a driver failed to conform to a traffic law” would not “constitute prima facie evidence of negligence,” or “be viewed as recklessness per se”. Assuming this interpretation of the interplay between subdivisions (b) and (e) is correct, it does not follow that section 1104(e) creates a reckless disregard standard of care for unprivileged conduct. Indeed, the logical implication of the dissent’s reading of section 1104 is that the standard of care for all emergency driving even if privileged under subdivision (b) is negligence.
The DWI Legislature certainly knew how to create the safe harbor from ordinary negligence envisioned by defendants and the dissent. For example, the Legislature might simply have structured section 1104(a) and (b) along the lines of section 1103(b). As originally adopted in 1957, this provision stated in relevant part that “unless specifically made applicable, the provisions of this title [VII] shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway but shall apply to such persons and vehicles when traveling to or from such work”.
Thus, rather than taking the approach of section 1104(a) and (b)—excusing the driver of an authorized emergency vehicle from complying with certain rules of the road when involved in an emergency operation—the Legislature in section 1103(b) exempted “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” from all the rules of the road, subject to any statutory exceptions. Subsequently, the Legislature “softened the outright exemption” in section 1103(b) by adding the due regard/reckless disregard language of section 1104(e). In addition, in 1987 the Legislature created a statutory exception, making “specifically applicable” those provisions in title VII regarding driving under the influence of drugs or alcohol.
This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).
Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly, we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b). Amicus curiae New York State Division of State Police, for example, argues that “while the facts of involved a police officer who exceeded the speed limit during a chase the Court’s holding was broad and unambiguous,” quoting the following passage: “Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer’s conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others”. A weapon was not found.
Finally, the dissent devotes several pages to a discussion of the many supposed “practical problems” presented by our interpretation of the statute. Simply put, section 1104(e) establishes a reckless disregard standard of care “for determining civil liability for damages resulting from the privileged operation of an emergency vehicle”; if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104(b), the standard of care for determining civil liability is ordinary negligence.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.
The reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence. If you are involved in a similar case, seek the help of a New York DWI Defense Attorney and New York Criminal Attorney at Stephen Bilkis and Associates. Call us now.