Opinion
# 2014-032-018 Claim No. 120036
12-30-2014
ALLISON M. DAVIS v. THE STATE OF NEW YORK
Mainetti, Mainetti & O'Connor, P.C. By: Joseph E. O'Connor, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Synopsis
The Court concludes, after a bifurcated trial on liability, that Sergeant Cullen was engaged in the emergency operation of a vehicle at the time of the accident, but that he nonetheless is 90% responsible for any damages sustained, because he acted with reckless disregard for the safety of any others on the road when he failed to yield to claimant's right of way and turned directly into her path of travel.
Case information
| UID: | 2014-032-018 |
| Claimant(s): | ALLISON M. DAVIS |
| Claimant short name: | DAVIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120036 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Mainetti, Mainetti & O'Connor, P.C. By: Joseph E. O'Connor, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Michael C. Rizzo, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | December 30, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Allison Davis filed the instant claim seeking damages for serious personal injuries sustained in an automobile accident on the morning of October 31, 2010. Claimant alleges that the accident was the result of the negligent, careless and reckless disregard of Sergeant Patrick Cullen who failed to yield to claimant's right of way and turned directly into her path of travel, causing the two vehicles to collide. For the reasons set forth below, the Court concludes, after a bifurcated trial on liability, that Sergeant Cullen was engaged in the emergency operation of a vehicle at the time of the accident, but that he nonetheless is 90% responsible for any damages sustained, because he acted with reckless disregard for the safety of any others on the road.
FACTS
At nearly 8:00 a.m. on October 31, 2010, claimant was driving her 1991 Mercury Topaz along Ross Ruland Road in the town of Cairo in Greene County. Ross Ruland Road runs in a northeast to southwest direction between State Route 23 and State Route 32 in Greene County (Exhibit F, p 4). Claimant, who was proceeding in a southwesterly direction, was on her way home after driving her husband to work. She testified that the weather that morning was clear and dry. She had not taken any medications to impair her driving abilities and she was wearing her eyeglasses.
Claimant described Ross Ruland Road as a two lane road with a double yellow line and some curves and hills. A photograph marked as Exhibit 4 shows that the accident occurred at 426 Ross Ruland Road. The posted speed limit on this road was 45 mph and claimant estimated that she was driving at approximately 47 miles per hour. She knew that there were driveways along the road as she had previously driven that road 60-70 times. Exhibit 7, which reflects a view of the accident site taken from the direction that Sergeant Cullen was traveling, clearly shows the crest of a hill that is located on a sharp turn in the road. As claimant traveled along Ross Ruland Road and viewed that hill, she took her foot off the gas pedal slowing her vehicle to 40-45 mph. Coming from the other direction, Sergeant Cullen was traveling on a fairly straight roadway until he reached the crest of the hill with the sharp turn (Exhibit 5). As claimant crested the same hill, Sergeant Cullen attempted to make a U-turn using the driveway at 426 Ross Ruland Road, which was on his left and at the crest of the hill. When claimant saw the vehicle in front of her, she put her foot on the brake. Claimant's vehicle impacted the right front of the police vehicle (Exhibit 12). Claimant marked a photograph of the roadway where the point of impact occurred (Exhibit 20-A).
Claimant testified that when she first saw Sergeant Cullen's vehicle, it was in her lane of traffic. No emergency lights, headlights, flashers or sirens were activated on his vehicle. The impact caused claimant's vehicle to travel to the left side of the driveway and down an incline on the grass at 426 Ross Ruland Road (Exhibits 11, 13, 18).
Sergeant Patrick Cullen testified that he started his shift at the Troop F Barracks in Greene County at 7:00 a.m. on October 31, 2010. At that time, he was informed of a home invasion that had occurred during the prior shift. Driving a police vehicle, he went to a residence in Round Top to investigate the home invasion. Trooper James Nagle was also sent to investigate in a separate vehicle. Sergeant Cullen left Round Top and then went to the Sandman Motel on State Route 32 in Cairo, New York, to look for the alleged perpetrators of the robbery, as well as a brown or tan van that they may have been driving. Thereafter, on his way back to the Troop barracks, he drove along Ross Ruland Road in a northeasterly direction when he received a telephone call on his personal Nokia flip cell phone. The call was from Diane Berg, the dispatcher at the barracks. The following is the text of their conversation:
Sergeant Cullen: Hello.
Ms. Berg: Hey, Sarge.
Sergeant Cullen: Hey.
Ms. Berg: Nagle has a gold colored van behind Spinelli's house. It's coming back to Michelle Behan. Now, we are looking for a Michelle.
Sergeant Cullen: Ah.
Ms. Berg: What's the last name?
Sergeant Cullen: Oh, sh*t.
Ms. Berg: Are you there?
Sergeant Cullen: Oh. Yeah. I just got hit head on.
Ms. Berg: Where?
Sergeant Cullen: Ross Ruland.
Ms. Berg: Ross Ruland?
Sergeant Cullen: Yeah. I was turning.
Ms. Berg: Where on Ross Ruland? Pat just got hit head on, Ross Ruland Road. Are you hurt; you got hit hard? (T: 331-332).
References to the trial transcript are indicated by (T: ).
The accident with claimant's vehicle, captured within this transcript, occurred at approximately 7:50 a.m. Sergeant Cullen identified the photograph in Exhibit 13 as depicting the area of impact between the vehicles. He testified that the cell phone was "more than likely" resting on his shoulder as he talked with Dispatcher Berg (T: 367). Having driven Ross Ruland Road over five hundred times, Sergeant Cullen admitted being familiar with its contours and topography. He admitted that his training would not recommend using a cell phone in an emergent operation (T: 373-374). He further admitted that commencing a U-turn while using a cell phone jeopardized claimant's safety (T: 375). Sergeant Cullen testified that his intention was to make a U-turn into the driveway at 426 Ross Ruland Road so that he could assist Trooper Nagle. He first saw claimant's car after he had begun his turn into the driveway at 426 Ross Ruland Road and immediately before impact. The front of his vehicle had crossed the double line when impact occurred. At trial, Sergeant Cullen did not recall whether he hit his brakes or whether he came to a complete stop or slowed down before making the turn. He could not estimate his speed while executing the turn. He had no recollection of claimant's vehicle coming towards him. He had no recollection of looking down Ross Ruland Road before making the left turn. He was aware, however, that he was making a turn on the crest of a hill, with a curve on the road at such crest (T: 338). He admitted that at the time he made the turn, he was not in pursuit of an actual violator of the law (T: 342). He admitted that there may have been a police memorandum that indicates that emergency or urgent activity should be made through the radio (Exhibit 38/T: 344). He was not familiar with the section from the New York State Police Handbook regarding cell phone usage (T: 373). He admitted that using a cell phone while operating his vehicle put others at a greater risk of an accident or an injury and was not recommended in his training (T: 369, 373).
Although no accident reconstructionist was proffered by claimant, Exhibits 19-33 show that an oncoming car could be seen as it climbed the hill prior to reaching the driveway at 426 Russ Ruland Road.
Sergeant Cullen described the activated emergency light system on the police vehicle, stating that the lights would be visible from the front grill, both side view mirrors, the back taillights and the back windshield. He testified that the vehicle also contains a siren, the controls for which are located on the middle console, along with the emergency lights controls. He believed that they were all functioning that day as it is his practice to check them before he starts his shift. He believed he activated them before the accident occurred. He did not recall if he disengaged the emergency lights after the accident. He admitted that none of the post accident photographs showed that the emergency lights were engaged. He testified that his training included the activation of emergency lights before acting emergently (T: 318).
Former State Police Sergeant Daniel Benoit was the Zone sergeant for Troop F Zone 3 at the time of the accident. On the morning of the accident, he was working out of the Catskill barracks and was standing next to Dispatcher Berg when she made the call to Sergeant Cullen. The barracks is less than one mile away from the scene of the accident and Sergeant Benoit was there within 5 minutes. He took a series of photographs at the scene and testified that, in all of the photographs, the emergency lights were not activated. However, the police vehicle's headlights and left-hand turn signal were activated. Sergeant Cullen never told him that he deactivated the emergency lights after the accident.
Sergeant Benoit authored several reports regarding this accident (Exhibits F-H and Exhibit 41). Exhibit 41, a memorandum from Sergeant Benoit to the Troop Commander of Troop F, concluded that "culpability for this accident lies with Sergeant CULLEN for failing to yield the right of way to the oncoming DAVIS vehicle while making a left hand turn into a private drive. Based on that fact, it is recommended that the accident be classified as preventable on the part of Sergeant CULLEN". Sergeant Benoit confirmed that Exhibit 38, a 2007 Executive Memorandum from Deputy Superintendent of the State Police, Bart R. Johnson, to "All Members and Communication Specialists" placed a limitation on the use of cell phones by officers. This Memorandum specifically states: "the primary and expected means of assigning and managing all State Police calls for service (CFS) shall be via a radio system...cellular phones, are not to be used to assign and manage State Police response situations particularly upon initial assignment and response to calls and complaints. Use of telephones when assigning and responding to scenes that are not already stabilized and/or contained must be limited to situations of cause, and the careful exercise of good judgment." (Exhibit 38).
Upon cross-examination, Sergeant Benoit testified that he found no skid marks at the location of the accident from either vehicle. He further confirmed that police are allowed to use cell phones pursuant to Vehicle and Traffic Law § 1225-c.
Trooper James Nagle started his shift on October 31, 2010 at 7:00 a.m. At the beginning of the shift, he learned of a home invasion that occurred approximately one hour before his shift began. He was advised that the perpetrators were two males and that a tan van was involved. He left the Catskill barracks that morning with Sergeant Cullen, both driving separate police vehicles. They traveled to 2-4 locations based upon information known to Sergeant Cullen. There came a time when the troopers split up. The emergency lights on neither vehicle had been activated. Ten to fifteen minutes after they split up, Trooper Nagle came across a gold colored van at 1094 Mountain Road. It was parked close to the road, along the side of the house. Trooper Nagle did not see anyone near the van or any suspicious activity by the van. He approached a woman inside the house by talking to her through a window. He did not see any other occupants within the house. He did not request backup from any police personnel. After speaking to the woman through a window, Trooper Nagle made a cell phone call to Dispatcher Berg to inform her of his finding and to get the registration information for the gold van. The recording of that call was played at trial (T: 123-125). At the end of that recording, Trooper Nagle said to Dispatcher Berg: "I'll see if maybe Sarge can swing back here. I'll try to get him car to car." (T: 125). Although his radio was working that day, he used his cell phone to call Dispatcher Berg because service is poor in that area of the county. However, he then unsuccessfully tried to call Sergeant Cullen on his vehicle radio. Other than the attempted radio call, he made no communication with anyone for backup. He was unaware that the woman in the house had been driving around all night drinking and using drugs. He remained out of his vehicle and in close proximity to the house until backup eventually arrived, twenty minutes after he tried to reach Sergeant Cullen. Although he was worried about the "unknown", he was not aware of any actual danger (T: 195).
During this part of the trial, the parties made several objections to Trooper Nagle's testimony (see pages 160, 161, 163, 164 and 166 of the transcript). The Court reserved ruling on said objections at trial, but now sustains the same.
During cross-examination, Trooper Nagle testified that when he was briefed early in his shift, he was notified that there was a forced home invasion, that someone had been injured and that an eight year old child was present during the incident. He and Sergeant Cullen were looking for the suspects and the van that was used to flee the scene. When he told Dispatcher Berg that he intended to radio Sergeant Cullen, his intent was to ask him to come to his location for assistance "with any further investigation" (T: 153).
Dispatcher Diane Berg, who was in communication with Trooper Nagle on October 31, 2010, testified that the normal protocol for backup assistance for an urgent matter would be through radio dispatch. When she called Sergeant Cullen to inform him of the siting of the van on Mountain Road, she chose the cell phone because she did not "want that on the scanner" (T: 224). She conceded that if Trooper Nagle had already questioned the person inside the house before calling her, then the situation would not have been urgent (T: 225). Her telephone call to Sergeant Cullen was right after her telephone call with Trooper Nagle. Although she never directly told Sergeant Cullen to go and assist Trooper Nagle, she testified that she never needed to tell him, that he would have understood the intent of the call. Upon cross-examination, she testified that the perpetrators of the home invasion were known gang members. She assumed they had weapons.
This was Dispatcher Berg's initial testimony to a hypothetical question. When she learned that such was fact, she started to hedge her testimony (T: 227). Dispatcher Berg's overall testimony was delivered cautiously and hesitantly.
A review of the police records regarding this home invasion shows that two women were involved in a physical altercation after drinking and taking drugs one night in Cairo, New York. One woman's boyfriend went to a home where the other woman was located and assaulted her for hurting his girlfriend. A child was present at this time. There was no mention of gangs in these records (Exhibit A).
The objection regarding her testimony on weapons is sustained (T: 263).
Upon review of Exhibit 38, the 2007 Executive Memorandum concerning the use of cell phones, Dispatcher Berg testified that the investigation had been ongoing from the previous shift, therefore it was not an initial assignment when radios should be used. She further elaborated that the situation was not stabilized, which is why she was contacting Sergeant Cullen. Upon redirect examination, she could not adequately explain why she failed to put out a bulletin for backup if Trooper Nagle's situation was so urgent (T: 272-274). She did not tell anyone to assist Trooper Nagle.
LAW AND DISCUSSION
In order to be shielded from civil liability under the ordinary rules of negligence, it is defendant's burden to prove, that at the time of the accident, an emergency existed and defendant's actions were not reckless. "In New York, privileges and immunities of any type are considered to be affirmative defenses and therefore something that must be raised by the defendant and on which the defendant has the burden of proof" (Avila v State of New York, 39 Misc 3d 1064, 1068 [Ct Cl 2013]). The standards for such affirmative defenses are governed by statutory and common law.
I. Emergency
A. Statutory Law
A police vehicle is an authorized emergency vehicle under Vehicle and Traffic Law § 101. Such vehicles may disregard regulations governing directions of movement or turning in specified directions when involved in an emergency operation (Vehicle and Traffic Law § 1104). The specific rule of the road involved in the instant case is Vehicle and Traffic Law § 1161, which prohibits U-turns upon any curve or on approach to it, or near the crest of a grade, where such motor vehicle cannot be seen by the driver of any other motor vehicle approaching from either direction within 500 feet.
At trial, Sergeant Cullen's turn would sometimes be characterized as a left turn as opposed to a U-turn. Left turns are governed by Vehicle and Traffic Law § 1141, which requires that a driver of a vehicle turning left yield the right of way to any vehicle approaching from the opposite direction. The same
standard for determining liability would be applied whether Sergeant Cullen was deemed to have been making a U-turn or a left turn.
The definition of an emergency operation includes responding to a police call or pursuing an actual or suspected violator of the law (Vehicle and Traffic Law § 114-b). The term police call is not defined in statute. The legislative history for modernizing the emergency privilege in 1954 noted, with careful forethought, the following: " 'The privileges and immunities granted to "fire and police vehicles". . . are to be extended with the greatest caution...Official necessity is not to be mistaken for personal privilege...To relax the rule of public safety of necessity is to open the door to personal privilege masquerading under the cloak of official action.' " (Modernization of the . . . Vehicle and Traffic Law of the State of New York, Part One, Rules of the Road, A Report of the New York State Joint Legislative Committee on Motor Vehicle Problems, 1954, citing City of Rochester v Lindner, 167 Misc. 790 [City Ct. Rochester 1938]).
B. Common Law
The Court of Appeals in Kabir v County of Monroe, 16 NY3d 217 [2011], held that the provisions within Vehicle and Traffic Law § 1104 (b) exempt conduct that is privileged, and such privilege applies to the specific conduct within Vehicle and Traffic Law § 1104 (b) and not to all police conduct. Here, Sergeant Cullen's attempt to make a U-turn would fall within Vehicle and Traffic Law § 1104 (b)(4), which allows authorized emergency vehicles to disregard regulation governing directions of movement for turning in specified directions.
The Court of Appeals held in Criscione v City of New York, 97 NY2d 152 [2001], that a patrol vehicle, while responding to a police dispatch to investigate a 911 call involving a family dispute, is an emergency operation under Vehicle and Traffic Law § 114-b. The Court noted that although the term "police call" is not legislatively defined within that section of the law, a police call from a dispatcher regarding a 911 complaint fell squarely within the plain meaning of that term. Various appellate courts have construed Criscione to mean that all police calls are emergencies (see Mouring v City of New York, 112 AD3d 588 [2d Dept 2013]; Hughes v Chiera, 4 AD3d 872 [4th Dept 2004]; O'Banner v County of Sullivan, 16 AD3d 950 [3d Dept 2005]; Allen v Town of Amherst, 8 AD3d 996 [4th Dept 2004]).
There was significant testimony at trial relating to whether a cell phone call could qualify as a police call under the law. Although the 2007 Executive Memorandum cautioned staff about the use of cell phones, it is irrelevant because the violation of police department rules and regulations was found not to be dispositive factor in whether a police officer acted recklessly (Allen v Town of Amherst, 8 AD3d 996 [4th Dept 2004]).
Additional cases regarding a police call indicate that an emergency situation exists when an urgent immediate problem is the basis for the police dispatch. A response to a dispatch radio call regarding an automobile erratically proceeding on a highway has been found to be an emergency ( see O'Banner v County of Sullivan, 16 AD3d 950 [3d Dept 2005]), as has been a response to a radio call from an officer in need of assistance ( see Perez v City of New York, 80 AD3d 543 [1st Dept 2011]). A response to a radio dispatch of a robbery in progress has also been held to be an emergency operation ( see Molinari v City of New York, 267 AD2d 436 [2d Dept 1999]), as has been a response to a police call regarding customer trouble at a bar ( see Allen v Town of Amherst, 8 AD3d 996 [4th Dept 2004]) and a response to a police dispatch regarding a traffic stop ( see Hughes v Chiera, 4 AD3d 872 [4th Dept 2004]).
It seems improbable that all police calls would be an emergent situation. If that were so, then the following examples could qualify as emergency operations: a police call to pick up evidence located at another barracks or a prison; a police call to retrieve an in-custody shoplifter at a mall; and a call to retrieve the proverbial cat stuck in a tree. To broadly construe emergent status to all police calls, irrespective of the circumstance, enhances the potential for police officers to respond to non-emergent circumstances by negligently driving, short of recklessness, and injuring others. Such action would be contrary to legislative historical cautions concerning personal privilege masquerading as official action.
The pursuit of an actual or suspected violator of the law is also an emergent operation (Dodds v Town of Hamburg, 117 AD3d 1428 [4th Dept 2014]) as is a State Trooper driving a vehicle pursuing a tractor-trailer which was passing vehicles in a no passing zone was considered an emergency (Green v State of New York, 71 AD3d 1310 [3d Dept 2010]). An emergency existed when a town police officer observed and then pursued a vehicle traveling with snow covering its windshield and the driver operating the vehicle with his head stuck out of the side window (see Dodds v Town of Hamburg, 117 AD3d 1428 [4th Dept 2014]). An emergency also existed when a Sergeant of the Syracuse Police force was pursuing two motorcyclists who had committed traffic violations in his presence (see Connelly v Syracuse, 103 AD3d 1242 [4th Dept 2013]) and when a Deputy Sheriff was pursuing a speeding vehicle (see Yerdon v County of Oswego, 43 AD3d 1437 [4th Dept 2007]; see also Smith v Hastings, 22 Misc 3d 1130 (A) [Sup Ct, Ulster County 2009]).
The Courts have also provided guidance as to what circumstances are not emergencies. A parole officer driving a State-owned vehicle, who observed a possible parole absconder in the other lane of traffic and was in an accident while attempting to turn his vehicle around, was found to be in an investigatory role and not in pursuit of an actual or suspected absconder (Rusho v State of New York, 76 AD3d 783 [4th Dept 2010]). A police officer who double-parked his vehicle in order to investigate a suspect was deemed not to be in an emergency operation (Quintero v City of New York, 113 AD3d 414 [1st Dept 2014]).
The instant action is a cross-breed of a police call and an investigatory case. It is more akin to a police call case, however, because Sergeant Cullen did not merely observe a possible suspect or violator of the law, but was responding to a call from the police dispatcher while in search of the alleged perpetrators of a robbery. Therefore, given the common law guidelines and, specifically, the interpretation of Criscione by various appellate courts, the Court is constrained to find that Sergeant Cullen was in an emergency operation under Vehicle and Traffic Law § 114-b. While this Court would narrowly read Criscione to apply to just 911 calls, it is bound by the appellate interpretations that all responses to police calls are considered emergency operations. Although there is no case law regarding police communication through cell phones constituting a police call under Vehicle and Traffic Law § 114-b, this Court finds that the use of a cell phone does not alter the fact that it was a call from the barracks to a police vehicle with information pertaining to an active case.
Trooper Nagle's testimony supported a possible finding that the situation was not emergent. Trooper Nagle did not ask for assistance from Dispatcher Berg when he called her. All he said was "I'll see if Sarge can swing back here. I'll try to get him car to car." When he could not get through to Sergeant Cullen, he did not request back up from anyone. Additionally, if Trooper Nagle thought the situation at Mountain Road was dangerous, he did not act accordingly when he approached the home by himself and spoke to a woman through a window. Further, Trooper Nagle admitted during cross-examination that his intent for calling Sergeant Cullen was to ask for his assistance with "any further investigation" (T:153).
II. RECKLESSNESS
A finding of recklessness is guided by the common law. The leading case, Saarinen v Kerr, 84 NY2d 494 [1994], held as follows: "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. This standard demands more than a showing of a lack of 'due care under the circumstances' - - the showing typically associated with ordinary negligence claims. It requires evidence 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 (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see Restatement [Second] of Torts § 500)" (Saarinen v Kerr, 84 NY2d 494, 501 [1994]). It requires "a showing of more than a momentary judgment lapse" (Saarinen v Kerr, 84 NY2d 494, 502 [1994]).
Unlike the definition of an emergency, the nature of the call is relevant in determining whether a responding officer's conduct was in reckless disregard for the safety of others (O'Banner v County of Sullivan, 16 AD3d 950 [3d Dept 2005]; Allen v Town of Amherst, 8 AD3d 996 [4th Dept 2004]; Muniz v City of Schenectady, 38 AD3d 989 [3d Dept 2007]).
The Third Department in Green v State of New York, 71 AD3d 1310 [3d Dept 2010], a case very similar to the instant action where a police officer making a U-turn struck another vehicle, provided some guidance for evaluation of the conscious indifference standard. The Court looked at the police officer's conduct immediately prior to the accident. In that particular case, the police officer stopped in the breakdown lane, activated his turn signal, looked over his shoulder and out the front window several times to ensure that traffic had stopped in both directions. The Third Department found that such amount of precautions taken by the police officer before attempting the U-turn meant that he did not act with conscious indifference to the consequences of his actions (see also Williams v Fassinger, 119 AD3d 1368 [4th Dept 2014], wherein a police officer took sufficient precautions before executing a left turn; compare Smith v Hastings, 22 Misc 3d 1130 (A) [Sup Ct, Ulster County 2009] where an abrupt U-turn was found to be reckless).
The Court found Sergeant Cullen to be profoundly evasive at trial. On the first day of trial, he responded to questions by claimant's counsel by stating more than 100 times that he: "did not recall", "was not aware of" and gave other imprecise and vague answers. On the second day of trial, he frequently asked for a repeat of the question posed to him or responded to questions with a question. Sergeant Cullen's attempt to artfully dodge questions, which he may have thought was clever, only manifested itself as an attempt to hide the truth.
Upon its observance of Sergeant Cullen at trial and considering his demeanor as he testified, the Court finds that he failed to offer any proof to counter the evidence submitted by claimant that he was reckless. The nature of Dispatcher Berg's cell phone call did not demand the abruptness of Sergeant Cullen's actions. Indeed, Sergeant Cullen admitted that he was not in pursuit at the time he made the U-turn. The Court finds that Sergeant Cullen did not brake or even attempt to brake his police vehicle before commencing the U- turn. Sergeant Cullen could not recall the speed at which he was traveling, if he looked down the road before the turn, if he hit his brakes, came to a stop or even slowed down. The conversation between Dispatcher Berg and Sergeant Cullen reveals that as soon as she conveyed that Trooper Nagle had found a gold van, the accident occurred. The Court interprets this to mean that Sergeant Cullen immediately turned his vehicle once that information was conveyed, which explains why Sergeant Benoit did not find any skid marks. There was no stopping, no looking down the road, no looking over his shoulder, just the engagement of a left-hand turn signal and the headlights. These latter measures are simply not enough to alert another driver, coming from the opposite direction towards the crest of a hill, of the U-turn.
Although Sergeant Cullen could not recall if he engaged the emergency lights, the Court finds that the emergency lights were not activated. Although activation of the emergency lights and sirens is not required for police vehicles under Vehicle and Traffic Law § 1104 (c) (see Nikolov v Town of Cheektowaga, 96 AD3d 1372 [4th Dept 2012]), Sergeant Cullen testified that the troopers were trained to activate them in an emergency. The Court finds that if Sergeant Cullen had activated these systems, claimant would have been alerted that a police vehicle was nearby.
Upon review of all of the evidence, including the observation of witnesses and an assessment of their demeanor, the Court concludes that claimant has established, by a preponderance of the credible evidence, that defendant was reckless and acted with conscious indifference to his surroundings and the potential for harming others. In apportioning responsibility for the accident, the Court further concludes that defendant is 90% responsible and claimant, who admitted to proceeding slightly above the suggested speed limit, is 10% responsible.
There was a suggested speed limit of 30 mph near the curve by the accident site (Exhibit 1).
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. A trial on the issue of damages will be held as soon as practicable. Any motions not heretofore addressed are hereby denied.
Let interlocutory judgment be entered accordingly.
December 30, 2014
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims