Opinion
# 2015-018-619 Claim No. 119453
05-28-2015
SYLVIE ARCHAMBAULT, as Executrix of the Estate of PIERRE SURPRENANT, Deceased v. STATE OF NEW YORK
OSHMAN & MIRISOLA, LLP By: David Kremen, Esquire Arthur L. Salmon, Esquire Trial Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Claim for conscious pain and suffering and wrongful death dismissed after trial. Claimant failed to establish a special duty was owed to decedent.
Case information
| UID: | 2015-018-619 |
| Claimant(s): | SYLVIE ARCHAMBAULT, as Executrix of the Estate of PIERRE SURPRENANT, Deceased |
| Claimant short name: | Archambault |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119453 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | OSHMAN & MIRISOLA, LLP By: David Kremen, Esquire Arthur L. Salmon, Esquire Trial Counsel |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 28, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim seeks damages for the conscious pain and suffering, and wrongful death of Pierre Surprenant due to the alleged negligence of the State of New York. The claim alleges that the State, through the actions of its employee, New York State Trooper Shawn W. Snow, was careless, reckless and negligent in the use, operation, maintenance, or management and control of Decedent's 1960 Thibault aerial ladder truck or a bottle jack in allowing the truck's ladder to contact live electrical wires or power lines, in failing to keep a lookout for the overhead power lines, failing to move the truck, failing to recognize and appreciate the danger of placing the truck ladder in such close proximity to the overhead electrical wires or power lines, failing to take reasonable care to observe his conduct could cause the ladder to contact or come into close proximity to the live electrical wires/power lines, failing to comply with duties and responsibilities as a New York State Trooper, violating New York State Police rules and protocols, and otherwise being careless and negligent. It is argued that the State is liable under the doctrine of respondeat superior and failure to properly train Trooper Snow.
Claimant's decedent and Trooper Snow both died as a result of this incident, which occurred in the late afternoon on August 3, 2008. There were no witnesses to the actual events leading to these deaths. The evidence presented was primarily circumstantial and included the findings and conclusions of the State Police after a full investigation.
Decedent, Mr. Surprenant, a Canadian citizen, was the owner of the 1960 Thibault-Metz aerial ladder fire truck. Mr. Surprenant was the retired chief of the Ottawa International Airport Fire Department and a member of the Quebec Fire Museum Foundation. Earlier in the day on August 3, he had attended a "muster," an antique fire truck exhibition, near Syracuse sponsored by the Syracuse, New York Chapter of the Society for the Preservation and Appreciation of Antique Fire Apparatus. He was on his way home to Quebec, driving the fire truck and pulling a utility trailer carrying a 1909 Ford Model T vehicle, when his truck incurred two flat tires on the passenger side of the vehicle on New York State Route 812 about 1,000 feet south of the bridge connecting the United States with Canada.
Michael Myers, a Customs Officer, was working checking cargo at the border crossing in Ogdensburg on the day in question. His duties required him to be in a booth in the VACIS Building where he used an X-ray machine to scan trucks crossing the border. Although he did not speak directly with Mr. Surprenant, he learned that an antique fire truck had flat tires and was blocking one lane of the roadway. Other customs personnel tried to get a tow truck to help Mr. Surprenant, but because August 3, 2008, was a Sunday, there were no tow trucks available. Mr. Myers told Trooper Snow about the problem. The trooper, who had been working the scales at the border borrowed a pry bar from the customs officers and went to try to help Mr. Surprenant with his disabled vehicle.
Defendant, in its post-trial submissions, referred to an affidavit of Customs Officer Dandrow attached to the investigative report; however, it was not part of any exhibit received in evidence.
Mr. Myers could not estimate how much time passed after Trooper Snow took the pry bar, but from his post he looked out and could see the truck, and saw that the left side tires were on fire. He called his supervisor at the main port and told him what he saw, requesting that he call 911. He could not see the trooper's car or the whole fire truck from his vantage point. After the call, he looked out the door again and the fire was out, so he then called the supervisor back and told him not to worry about it.
Mr. Myers continued with his duties and scanned another truck which took about four-to-five minutes before he looked out again. He saw something shining beneath the truck. He thought it was Trooper Snow's patch reflecting in the sunlight.
Fearing something was wrong, he leapt out of his chair and over the guide rail to the front of the truck where he saw Trooper Snow's arm. Before reaching to help Trooper Snow, Mr. Myers saw Mr. Surprenant and given his injuries, he knew that there had been an electrocution. He then looked around including overhead and saw that the ladder on the fire truck had contacted the power wires above. He then got a vehicle so he could stop traffic while another officer called 911.
Claimant called Senior Investigator Judith Trimboli of the State Police as the next witness. She had been employed by the New York State Police for 28 years and was part of the team investigating the incident. Before being promoted to investigations, Senior Investigator Trimboli worked at the State Police Academy teaching trainees both in and out of the classroom. Trooper Snow was one of her trainees.
Investigator Trimboli was using the surname Paduano at the time of the accident.
When she arrived at the scene, Investigator Trimboli saw the ladder touching the wire and the bodies near the truck. The location of the bodies indicated Trooper Snow was using the bottle jack to lift the vehicle, and Mr. Surprenant was removing the lug nuts from the tire when the ladder made contact with the electrical wires. She learned from her investigation that Trooper Snow had taken Mr. Surprenant to a nearby Lowe's Home Improvement store where Mr. Surprenant purchased a bottle jack.
Investigator Trimboli testified that it was part of the normal duties of a State Trooper to assist a motorist in need. This could include helping to move a vehicle from blocking the roadway, calling for a tow truck, or helping to change a flat tire. Even a courtesy ride is part of a Trooper's job description. Everything Trooper Snow did was within his normal duties as a New York State Trooper.
Investigator Trimboli, in response to a question from Claimant's counsel, indicated that Trooper Snow was present at the scene at the time the ladder on the truck was extended. The basis for Investigator Trimboli's conclusion was not elicited, and no other evidence, i.e., witnesses or physical evidence, supported this fact.
Defendant called Investigator Richard Hoff. At the time of the incident, he was part of the Forensic Identification Unit or Crime Scene Unit and was assigned to investigate the deaths of Mr. Surprenant and Trooper Snow. He testified that the scene was intact upon his arrival and referred to Exhibit 7 as an accurate depiction of the area when he began the investigation. His report and a supplemental report were received in evidence. Based upon the location of the bodies and the fact that the extended ladder was still in contact with the power lines, Investigator Hoff concluded that Mr. Surprenant was in the process of removing the lug nuts and Trooper Snow was manning the bottle jack at the time the ladder touched the uninsulated wire resulting in their deaths.
He became an investigator with the Forensic Identification Unit or Crime Scene Unit after this investigation.
Exhibits 15 and 23.
The photographs, diagrams, and witnesses' testimony show that the two right rear tires of the fire truck were flat. The truck was in the right-hand lane of State Route 812 about 1,000 feet south of U. S. Customs. The road is a divided highway and runs north-south with two lanes in each direction. According to the measurements taken during the investigation, the three power lines cross the road at a 45 angle. One utility pole was 85' north on the east side from the truck, and another about 123' from the truck on the west side. The wires were approximately 36' 2" above the ground.
Investigator Hoff said they used the Electrical Total Work Station, an infrared unit and the measurements were downloaded to a computer which then created the diagrams attached to the reports, Exhibits 15, 23, J, and K.
Investigator Hoff could not determine how the accident occurred when he arrived at the scene. In an effort to obtain more specific information, a re-creation was attempted in a large parking lot nearby. None of the troopers involved in the investigation could operate the mechanics of the fire truck, so they solicited assistance from Canadian firefighters who were familiar with the vehicle. They raised and extended the ladder turning it to the "7 o'clock" position, as it was at the time of the accident. It took a few minutes for the ladder to be fully extended. In addition, the stabilizers located in front and back of the right rear tires were engaged. These, too, were operated by the Canadian firefighters. According to Investigator Hoff, the re-creation could not have been done without these firefighters because the truck was old and none of the State Troopers, or anyone else at the scene of the reconstruction, knew how to move the turret, extend the ladder, or use the stabilizers. Investigator Hoff found no indication Trooper Snow would have had the knowledge or experience to extend the ladder on this fire truck. Numerous photographs were taken at the scene of the accident, including one of the gauges which reflect the 32 angle of the ladder at the time of the incident. The "plumb-bob gauge" attached to the ladder indicated the angle was only 24. Investigator Hoff determined that the discrepancy in the angle was due to the change in the position of the truck chassis as a result of jacking the truck up to remove the flat tires. During the re-creation, the ladder was extended and the gauge set to 32. Before the truck was raised, the distance from the burned area on the ladder to the ground measured 39' 5". Then, the right rear side was raised until the plumb-bob was at 24 as it was when the accident occurred, which resulted in the scorched area of the extended ladder dropping to 36' 1". In other words, lifting the right side of the truck 2" caused the ladder to drop more than 3' thereby making contact with the exposed power line which was 36' 2" off the ground. Given the respective locations of Mr. Surprenant and Trooper Snow, neither could have seen the ladder moving toward the wire. There was also no evidence indicating Trooper Snow knew the position of the ladder in proximity to the wires at the time he operated the bottle jack.
Investigator Hoff referred to these as "downriggers" in his report.
At trial, Investigator Hoff indicated that some of the stabilizers on the truck were not fully extended as noted in his report, specifically, the left side stabilizers (downriggers) were "mostly retracted." At trial, the Investigator testified that this contributed to the extended ladder dropping between 3-to-4' onto the electrical wires. This conclusion, however, was not in his written report.
Exhibit I.
National Grid employee, Matthew Richardson, testified that he was called to the scene to de-energize the power lines so the scene could be cleared safely. When he arrived, he found two of the three lines were still live; the third line's fuse had blown. He said there was sufficient current running through the line to blow the fuse. Each line carried 7,620 volts.
Claimant introduced inserts sent with National Grid bills to Trooper Snow's residence into evidence. In essence, the pertinent part of the documents explains the danger of working around overhead lines. These were required to be sent out pursuant to New York State Labor Law section 202-h. Investigator Hoff testified that he knows it is dangerous to have a metal item near exposed power lines, and he felt it is common knowledge. Discussion
Exhibits 18-22.
The Defendant argues in its post-trial brief that the State cannot be held liable for the pain and suffering and wrongful death of Mr. Surprenant because it is entitled to immunity for its discretionary actions in carrying out its governmental function of providing police protection. Assisting a disabled motorist is, Defendant argues, a function of the State's traditional governmental role providing for the protection and safety of the traveling public on the State's roadways and removing roadway hazards. It is Defendant's position that Trooper Snow's decision to assist Mr. Surprenant was a discretionary one, immune from liability. Defendant also argues that Claimant has failed to show any special duty or any breach of duty, since Trooper Snow had no greater knowledge or appreciation for the danger than the decedent - in effect, everyone knows that metal should be kept away from a live source of electricity.
Claimant contends that Defendant cannot assert immunity in this case, because it has waived that defense by failing to raise it before its post-trial submissions. Allowing the assertion of the defense at this juncture would be prejudicial to Claimant, since no discovery was conducted on this issue and no witnesses presented. Alternatively, Claimant argues that even if the immunity defense is permitted, substantively it is inapplicable because Trooper Snow's actions leading to Decedent's injuries and death were solely proprietary or ministerial. A special duty was created when Trooper Snow voluntarily assumed a duty to assist Mr. Surprenant to change the tires on his antique fire truck, the proper performance upon which Mr. Surprenant relied. Claimant also argues that the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76, 78 [1948]) is applicable to this case and permits a relaxed standard of proof because Decedent cannot testify to what occurred.
Addressing the Noseworthy doctrine first, in Noseworthy v City of New York, 298 NY at 80, the Court of Appeals enunciated a general rule of evidence that in death cases, a plaintiff will not be held to as "high [a] degree of proof" as in a case where the injured party can testify, when the defendant has knowledge and some control over the source of the injury (Id.). The doctrine permits the fact finder "greater latitude in drawing inferences favorable" to Claimant (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 334 [1986]). However, the doctrine has no application where Defendant has "no greater access to the underlying facts" than the party bringing the claim (see Lindquist v County of Schoharie, 126 AD3d 1096, 1101 [3d Dept 2015]; Ulicki v Jarka, 122 AD3d 1267 [4th Dept 2014]; Rockhill v Pickering, 276 AD2d 1002 [3d Dept 2000]). Here, the Noseworthy doctrine is not applicable given the death of both Decedent and Trooper Snow, placing both Claimant and Defendant in the same position as to the underlying facts giving rise to this action.
Turning then to the first determination that must be made when liability is asserted against the State or a municipality, whether the alleged negligent actor, here, Trooper Snow, was engaged in a proprietary or a governmental function (Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]). The distinction is an important one, since if the actions undertaken are proprietary the claimant must prove Defendant breached a duty of ordinary care, the same duty owed by any actor or entity in similar circumstances (Schrempf v State of New York, 66 NY2d 289, 294 [1985]; Miller v State of New York, 62 NY2d 506, 513 [1984]). Whereas, if the actions are governmental functions, Claimant has the heavier burden to establish that a special duty was breached, and if the actions were discretionary even breach of a special duty will not lead to liability (see McLean v City of New York, 12 NY3d 194 [2009]).
Where the negligent actor is a police officer engaged in typical police activities such as crime prevention, traffic control, or roadway safety, such actions are seen as governmental activities (see Applewhite, 21 NY3d at 425, ["Police and fire protection are examples of long-recognized, quintessential governmental functions"]; Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997] ["traffic regulation is a classic example of a governmental function . . ."]; Kircher v City of Jamestown, 74 NY2d 251 [1989] [police officer's direction to driver to move vehicle, governmental action]; Matter of Hoehn v New York State Comptroller, 122 AD3d 984 [3d Dept 2014] [providing assistance to disabled vehicle part of officers' duties for purposes of disability retirement benefits]; Matter of O'Brien v Long Is. State Parkway Comm., 13 AD2d 855 [3d Dept 1961] [affirmed award of workers' compensation death benefits to officer who suffered a heart attack after helping a woman change a tire]).
Claimant argues that although police activities are usually governmental functions, here, Trooper Snow was merely helping to change a tire by operating a jack, which is not a governmental function, but a proprietary function that could be performed by many individuals or private sector entities. Claimant points to the language in Miller, 62 NY2d at 513, which provides that "[w]hen the liability of a governmental entity is at issue, '[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs . . . not whether the agency involved is engaged generally in proprietary activity . . .'" (Miller, 62 NY2d at 513, quoting Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982]).
As the Court of Appeals noted in Miller, 62 NY2d 506, a "governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions." (Miller, 62 NY2d at 511-512). It begins with the most basic proprietary actions, such as property repairs, and extends "gradually out to more complex measures of safety and security for a greater area and populace." (Id., at 512). In Miller, 62 NY2d 506, Claimant, a student, was injured when she was assaulted by an intruder who entered her SUNY Stony Brook dorm through an unlocked door. The Court noted that the claim sought damages for the State's failure to provide adequate security - a traditionally governmental function, and as landlord - a traditionally proprietary function, the State played a dual role. In Miller, 62 NY2d 506, although inadequate security - a matter of police protection was raised, the wrongdoing giving rise to the injuries and which Claimant pursued, was the failure to lock the dormitory doors. This failure, the Court found, arose out of the State's capacity as landlord, subjecting the State to the same standard of care as any other landowner. The Court of Appeals provided more recent guidance in analyzing whether a government actor's conduct was proprietary or governmental in Applewhite, 21 NY3d at 426 and Wittorf v City of New York, 23 NY3d 473 [2014]. In Applewhite, 21 NY3d 420, the actions of emergency medical technicians (EMTs) employed by the New York City Fire Department and deployed to attend to plaintiff's daughter in response to a 911 call were found to be governmental. The Court reasoned that although medical services delivered by actors employed by a governmental entity in a hospital type setting are typically proprietary and subject to ordinary tort liability, the provision of " 'police protection, fire protection or ambulance service' to the general public" is a governmental function (Id., at 427, quoting Laratro v City of New York, 8 NY3d 79, 82-83 [2006][emphasis not in original]).
In Wittorf v City of New York, 25 NY3d 473 [2014], the Court of Appeals found that a New York City Department of Transportation (DOT) worker engaged in closing the entrance to Central Park with cones, who allowed plaintiff to use the roadway resulting in her injuries, was engaged in a proprietary function. Although closing a roadway can be a governmental function, since the DOT is generally involved in the maintenance of roads and highways, a historically proprietary function, and the closure of the park roads was part of a maintenance project performed by the worker in his capacity as a City DOT Supervisor, it was found to be proprietary.
In reviewing those cases, it becomes clear that the analysis requires looking at the specific act or omission, but not in isolation. Rather, the actor's action or omission must be viewed in the context of the public entity's function implicated by the specific allegations of wrongdoing, along with the role and capacity in which the actor performed or failed to perform (see also, Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 445-453 [2011]; Sebastian v State of New York, 93 NY2d 790, 793-795 [1999]). Here, Trooper Snow attended to Mr. Surprenant as part of his duties as a trooper. Although the actual activity in which he was involved at the time Decedent was injured and died could have been performed by many proprietary entities, i.e., any car repair service, AAA, etc., that is not decisive, since the capacity in which Trooper Snow acted was that of a State Police officer performing a governmental function - assisting in the removal of road obstructions for the safety of the traveling public. In fact, Senior Investigator Trimboli testified that assisting motorists along the highways is a component of the duties of any State Trooper.
When the State actor is engaged in a governmental function, it falls to Claimant to then establish that the duty owed was more than a general duty owed to the public, but rather a special duty owed here to Decedent (Applewhite, 21 NY3d at 430). A special duty has been found to exist in three circumstances: (1) where claimant is a member of a class for whose benefit a statute was enacted, (2) where the governmental entity or actor voluntarily assumed a duty to claimant, or (3) when the governmental entity or actor took positive control in light of a known dangerous safety condition (Id., Metz v State of New York, 20 NY3d 175,180 [2012]; Pelaez v Seide, 2 NY3d 186, 199-205 [2004]).
Claimant argues that Trooper Snow owed Decedent a special duty based upon two of those circumstances. First, because Trooper Snow assumed positive direction in the face of a known, blatant, and dangerous safety violation. Claimant explains that Trooper Snow jacked up the truck, a positive direction, knowing the danger of the extended ladder contacting the overhead power lines. Alternatively, Claimant argues that Trooper Snow voluntarily assumed a duty, assisting Decedent with changing his tires by jacking up the truck, and his actions generated justifiable reliance by Decedent.
In Pelaez v Seide, 2 NY3d at 203-204, the Court of Appeals cited to Smullen v City of New York, 28 NY2d 66 [1971], as an example of a municipality assuming positive direction in the face of a known blatant and dangerous safety violation. In Smullen, the city inspector in control of the construction site had the power to stop the work. The inspector, instead, assured a worker that a trench was "solid," permitting the worker's descent into the trench that later collapsed upon him (Smullen v City of New York, 28 NY2d at 69). Critical to establishing a special duty in that case was the inspector's actual awareness or knowledge that the trench had not been braced as required by regulation and the active control or direction he took despite this awareness or knowledge. Here, there was no specific safety violation shown, and there is simply no proof to support a finding that Trooper Snow took active control or direction over the situation. It is just as possible that he followed the direction of Decedent in operating the jack and based upon the age of the truck, with the unusual equipment and gauges, it seems a reasonable inference that Mr. Surprenant would have been the one to have actually extended and positioned the ladder and engaged the stabilizers.
In Cuffy v City of New York, 69 NY2d 255 [1987], the Court of Appeals set forth the test to determine whether a special duty was formed by the governmental entity assuming an affirmative duty to act on behalf of the injured party. To establish a special duty in this way there must be evidence to show that (1) the governmental actor assumed through promises or actions an affirmative duty to act on behalf of the injured party, (2) knowledge by the governmental actor that inaction could lead to harm, (3) direct contact between the governmental actor and the injured party, and (4) the injured party's justifiable reliance upon the governmental actor's affirmative undertaking (Id., at 260).
Here, clearly, Decedent and Trooper Snow had direct contact, and Trooper Snow assumed an affirmative duty to assist Decedent with changing his tires. Claimant argues that it may be inferred that Trooper Snow knew that his failure to act could cause harm to Mr. Surprenant from being exposed to moving traffic, based upon the location of his stopped vehicle. Although the truck was stopped in the right lane of travel, there was another unoccupied lane of travel in this direction, and the truck was stopped only a short distance from the border crossing where all vehicles were required to stop. It is not inferable from the evidence that Trooper Snow was aware that Decedent could suffer harm, as opposed to inconvenience, if he did not act. Claimant also points to Mr. Surprenant's reliance upon Trooper Snow's assistance, alleging that Decedent stopped seeking assistance from other people when Trooper Snow began helping him. The element of reliance "is as critical in establishing the existence of a 'special relationship' as is the [government actor's] voluntary affirmative undertaking of a duty to act." (Id., at 261). Reliance "provides the essential causative link between the 'special duty' assumed by the [government actor] and the alleged injury." (Id.). The required showing to establish this element demands more than an "abstract" hope or belief that the governmental actor would take appropriate action (Clark v Town of Ticonderoga, 291 AD2d 597, 599 [3d Dept 2002] lv denied 98 NY2d 604 [2002]; Berliner v Thompson, 166 AD2d 78, 82 [3d Dept 1991]). Rather, what is required is some showing that the voluntary governmental undertaking "has lulled the injured party into a false sense of security" inducing him to "relax [his] own vigilance or to forego other available avenues . . . " of assistance (Berliner, 166 AD2d at 82; Finch v County of Saratoga, 305 AD2d 771, 773 [3d Dept 2003]). Here, what the evidence actually supports is not that Decedent relied upon Trooper Snow's assistance in lieu of obtaining other help, but rather he acquiesced in the Trooper's help because he had no other options for help available. No tow trucks could be located, and there was no proof to show Decedent sought or considered help elsewhere. There is simply no proof that this Trooper's conduct "deprived decedent of assistance that reasonably could have been expected from another source." (Merced v City of New York, 75 NY2d 798, 800 [1990]; Applewhite, 21 NY3d at 431). To find that by Trooper Snow taking some action to assist Decedent to change his tire, Decedent thereby justifiably relied upon his assistance would impermissibly "conflate two separate elements of the special relationship test." (Valdez, 18 NY3d at 83-84). Proof of the affirmative undertaking cannot support both the affirmative action and the reliance components of the four-part test (Id.). Claimant has failed to establish a special duty.
Based upon Claimant's failure to establish a prima facie case of negligence, the Court does not reach the issue of whether Trooper Snow's conduct was ministerial or discretionary, or whether Defendant has properly raised the issue of governmental immunity. The claim is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
.
However, even if a special duty could be found, the claim fails because claimant could not come forward with sufficient proof to establish that Trooper Snow committed any negligent act. We do not know who raised the ladder, when it was raised, why it was raised, whether it was raised and then rotated near the wires, or whether it was raised in the direction it was found next to the wires. Nor do we know where Trooper Snow was at the time it was raised. But the evidence does not definitively answer any of those questions. Trooper Snow could have been under the truck, where he was found, when the ladder was extended and positioned without any view of the location of the ladder in proximity to the overhead wires. (Cf., Rockhill v Pickering, 276 AD2d 1002 [3d Dept 2000]).
Senior Investigator Trimboli testified that Trooper Snow was present when the ladder was raised, but there is no evidence in the record supporting this, or on what she based her conclusion.
Nonetheless, even if a special duty could be found, this claim fails for yet another reason. Even when a special duty is established, it is a duty of reasonable care. Reasonable care requires conduct to be reasonable in proportion to the foreseeable risk of injury (PJI 2:12). "Generally a risk is foreseeable when it [can] reasonably be anticipated." (Reynolds v Atlantis Marine World, LLC, 29 AD3d 770, 771 [2d Dept 2006]). The proof simply does not support a finding that Trooper Snow was aware of the full extension or placement of the ladder, at the time he used the bottle jack to raise the truck by 2". We do not know who raised the ladder, when it was raised, why it was raised, or where Trooper Snow was at the time it was raised. Based upon the age of the truck, with the unusual equipment and gauges, it seems a reasonable inference that Mr. Surprenant would have been the one to have actually extended the ladder and engaged the stabilizers. But the evidence does not definitively answer any of those questions. Trooper Snow could have been under the truck, where he was found, when the ladder was extended without any view of the location of the ladder in proximity to the overhead wires (Cf., Rockhill v Pickering, 276 AD2d 1002 [3d Dept 2000]).
Senior Investigator Trimboli testified that Trooper Snow was present when the ladder was raised, but there is no evidence in the record supporting this, or on what she based her conclusion.
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The manpower and investigative efforts needed to determine how this happened supports a finding that this was not a reasonably foreseeable risk.
Admittedly, in reviewing the pictures of the location of this incident, it would have been more prudent and sagacious to either not engage the ladder, or at least not to the same extent, or to move the truck - even with two flat tires to another area to change them. However the wisdom of hindsight does not dictate the parameters of a legal duty, where the evidence supports a finding that even the investigative officers could not determine how the Yet, the fact that Trooper Snow could have possibly done more, or something different, does not render his conduct negligent. , The facts here, even if a special duty has been established, do not support a breach by the actions of Trooper Snow to the foreseeable danger.
May 28, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims