New York Criminal Lawyer Blog
This is a proceeding wherein on appeal, the court holds that 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.
On 20 September 2004 at 3:57 p.m., the defendant, JD, a road patrol deputy in the Monroe County Sheriff’s Office, was on routine patrol for DWI 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. When he received the call, 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). No Drunk Driving.
Thereafter, JD 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”, JD 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. DUI was not an issue.
JD 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. He 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 JD 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 YK.
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. YK 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.
In October 2005 and February 2006 YK brought actions, subsequently consolidated, against Monroe County, JD and others, alleging serious injury under New York’s No–Fault Law. In May 2008, defendants moved for summary judgment to dismiss the complaints. In July 2008, YK cross-moved for partial summary judgment on liability. The parties disputed whether Vehicle and Traffic Law § 1104 applied, making JD liable for the accident only if he acted with “reckless disregard for the safety of others in accordance with Vehicle and Traffic Law § 1104[e] and Saarinen v Kerr holding that the standard of care under Vehicle and Traffic Law § 1104 is reckless disregard and addressing the conduct required to show recklessness. On 26 September 2008, Supreme Court awarded summary judgment to defendants. Was DUI involved?
The court concluded that JD’s conduct was covered by section 1104, and that YK had not raised a triable issue of fact as to whether he acted with reckless disregard.
On 30 December 2009, the Appellate Division reversed the decision. The majority held that the reckless disregard standard in section 1104(e) is limited to accidents caused by conduct privileged [16 N.Y.3d 222] under section 1104(b). Because JD’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. DWAI is another issue.
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 Kabir 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 YK’s cross motion for partial summary judgment on liability.
The dissenting judges 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 19 March 2010, the Appellate Division granted defendants leave to appeal, and certified to us the question of whether its order was properly made. The court affirms and therefore answers the certified question in the affirmative.
In Riley v County of Broome, 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. DWI could have been involved.
Subdivision (a) of this provision empowers the driver of an authorized emergency vehicle when involved in an “emergency operation” 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): “stop, stand or park irrespective of the provisions of this title [VII]; 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; exceed the maximum speed limits so long as he does not endanger life or property; and, disregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104[b]).”
The privileges correspond generally with articles in title VII of the Vehicle and Traffic Law, entitled “Rules of the Road” in accordance with arts 32 [“Stopping, Standing, and Parking”], 29 [“Special Stops Required”], 24 [“Traffic Signs, Signals and Markings”], 30 [“Speed Restrictions”], 25 [“Driving on Right Side of Roadway, Overtaking and Passing, Etc.”], 26 [“Right of Way”], 28 [“Turning and Starting and Signals on Stopping and Turning”].
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 granted are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals. Drunk Driving will impair this ability.
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. DWAI makes it worse.
In the case at bar, the 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 “interpret[ed] 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’ ” (dissenting op. at 236–237, 920 N.Y.S.2d at 280–81, 945 N.E.2d at 473–74). 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 “[t]he foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver. DUI could have been investigated.
The dissent opines that the “evident intent” of the reference to 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.
The court notes that the emergency responder cannot, thus, receive a traffic citation for conduct enumerated under criminal 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. DUI makes it even worse.
Instead of 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. The Legislature subsequently added 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, DWAI.
The court notes that the provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b). Subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit.
Based on Saarinen and Szczerbiak, the defendants and amici curiae insist, however, the court 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 argues that while the facts of Saarinen involved a police officer who exceeded the speed limit during a chase the Court’s holding was broad and unambiguous. However, the “question of statutory interpretation” that the court referred to in the language cited by the State Police was the nature of the standard of care established by section 1104(e) in a situation where the police officer was clearly entitled to its benefit.
The court notes that 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.
The court affirms the order of the Appellate Division, with costs and answers in the affirmative the certified question.
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