Opinion
# 2017-029-076 Claim No. 126320
11-21-2017
DEBORAH A. PASCOE, ON BEHALF OF THE ESTATE OF ROBERT J. PASCOE, JR., AND DEBORAH A. PASCOE v. THE STATE OF NEW YORK
MAINETTI, MAINETTI & O'CONNOR, P.C. By: Kevin C. Harp, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General
Synopsis
After a trial on liability, the court applied the reckless disregard standard under Vehicle and Traffic Law § 1103[b] and found defendant State of New York 50% liable for the wrongful death of a driver who collided with a DOT truck on I-84 and the deceased driver 50% liable. The trial evidence showed that the DOT truck was stopped on the side of the high-speed roadway protruding several feet into the far left lane, when there was a safer alternative, and the message board was not engaged; and the deceased automobile driver was speeding and likely tailgating another automobile.
Case information
| UID: | 2017-029-076 |
| Claimant(s): | DEBORAH A. PASCOE, ON BEHALF OF THE ESTATE OF ROBERT J. PASCOE, JR., AND DEBORAH A. PASCOE |
| Claimant short name: | PASCOE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126320 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | MAINETTI, MAINETTI & O'CONNOR, P.C. By: Kevin C. Harp, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 2017 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim for wrongful death arose on January 15, 2015, when the automobile driven by the deceased, Robert J. Pascoe, Jr., collided with a New York State Department of Transportation ("DOT") truck stopped on the side of Interstate I-84 ("I-84"). A bifurcated trial on liability was held on August 1, 2017 and August 2, 2017.
Claimant called the DOT maintenance crew of the truck to testify at trial. On the day of the accident, William Tice was the driver, Rogelio Hamilton was the front passenger, and William Williams was the rear passenger.
Rogelio Hamilton testified that they were working a 7:30 a.m. to 4:00 p.m. shift on January 15, 2015 (T: 13). The truck they were using was smaller than a dump truck (T: 19). They were picking up debris and dead animals (T: 23). They stopped to pick up a dead deer (Exh. 1-A [photograph]). There was no traffic around when they stopped (T: 32). There were beacon lights on top of the truck (T: 39). Hamilton jumped out of the truck to put his vest on. As he was standing in the roadway at the back and to the side of the truck, he looked up and saw traffic coming at him. He ran towards the grass and heard a "boom" (T: 51-54, 60). After that, a gentleman came up asked him if he was alright, and said "I almost just ran you off the road" (T: 53). Hamilton recalled almost being hit by a car (T: 60).
"(T: #)" refers to the relevant pages of the trial transcript. The dates are not included as the page numbers continue sequentially from the transcript for one trial day to the next.
The truck they used was "school-bus yellow" (T: 91). The grassy area where the deer was located is soft and sloped down. A truck could get stuck on it and there was not really enough room to pull a truck onto it. The truck is more than six feet wide (T: 93-95). There was a metal grate hanging off the back of the truck (T: 100-101; Exh. 1-G [photograph]). A post-impact photograph marked as Exh. 1-C depicts the truck where it came to a rest entirely on the median and leaning (T: 95-96).
The final at rest placement of the truck, at some distance from the point-of-impact, indicates a high-speed collision and large forces generated by the Pascoe vehicle.
William Williams, III testified that he had driven the patrol vehicle on a debris route prior to the date of the accident. At no time did he park the vehicle where it was partially on the roadway on I-84 because "It's not safe" (T: 133-134). He would park it over to the right side on the shoulder (Exh. 1-E [photograph]), wait for traffic, then go get the deer (T: 135). The beacon light on the top of the vehicle was hidden behind the message board. Other beacon lights are on the back (Exh. 1-E). The message board on the truck was stationary (T: 136). Lights in the back were to make up for the blocked roof light (T: 149). Williams was in the back seat putting on his vest when they were hit. If it had not been for the front seats, he probably would have gone through the windshield (T: 131).
William Tice testified that prior to the day of the accident, he had been a highway maintenance worker for 13 years (T: 157). He suggested they pick up the deer after he looked and did not see traffic in front or behind them. He left two tires on the pavement where the rumble strip is located to avoid getting stuck in soft ground on the median; there was ice and snow and it was warming up (T: 185-186, 195). The truck was sticking out over the yellow line at least two to three feet (T: 197). He did not park on the shoulder of the west lanes of I-84, which is wider, because he did not want the other two men dragging the deer across traffic. There was also a spot on the median to the left of the east lanes that was flatter, but the deer was up ahead and it would have been a longer distance for the men to drag it to the back of the truck. He parked with the deer behind so the men could drag it directly to the back (T: 197-202). The last time he looked, there was no traffic behind them (T: 212).
Tice testified that after the accident he was in shock. He managed to exit the truck, then went to the back of the truck (T: 204-205, 220). Tice heard Hamilton yelling from up on the bank that he had almost been hit, and something about Tice sticking out, and Tice responded "I know I was" (T: 215-218). He then went to help Williams. A "guy came back to the accident scene" and said he had not seen their truck and just missed Hamilton. Tice guessed Mr. Pascoe had been driving too close behind the other car (T: 210-212). Tice insisted that he was trying to do his job as safely as he could (T: 223).
Tice was referring to Adrian Bush, who was driving a car in front of the deceased's car (T: 275-276).
New York State Police Investigator John Javaheri ("Investigator Javaheri") testified that he interviewed Hamilton and Williams at the hospital on the day of the accident. After the interview, Investigator Javaheri wrote depositions, then the witnesses read and signed them (T: 246-250). Hamilton's interview started at 9:30 a.m., then Investigator Javaheri typed and printed the deposition in the Troop car (T: 251-252; Exh. 2, p. 13 [supporting deposition]). Williams' interview started at 10:37 a.m., and the deposition was handwritten (id. at p. 14). Investigator Javaheri and Investigator Robert Baird went to notify Mr. Pascoe's wife about the death of her husband (T: 252).
New York State Police Investigator Robert Baird ("Investigator Baird") testified that he responded to the scene of the accident and was assigned as the lead "back room" investigator for the accident. Eric Haydt was the lead investigator with the collision reconstruction unit (T: 258-260). They believed that the accident was caused by the DOT truck "being partially in the roadway, approximately three feet on the passenger's side, and not having the full activation of the blackboard to the arrow stick" (T: 261). Because there was a fatality, in accordance with the State Police Manual, it was a "BCI case" and he was assigned as a criminal investigator to determine whether charges would be appropriate (T: 266). Investigator Baird described pages from the accident reconstruction report as "written findings" (Exh. 2, pp. 4-6).
Investigator Baird interviewed Tice, the truck driver (T: 256-257, 273-274; Exh. 2, pp. 15-16). He also spoke with a Mr. Adrian Bush, an uninvolved witness, who said he had been driving in the passing lane and saw the DOT truck and moved to the right lane to avoid it. Bush said that the truck's four-way flashers were on but not the arrow stick (T: 275-276). Bush's statement was taken by Trooper Joseph Lofrese in his Troop vehicle at the scene (T: 278; Exh. 2, p. 12). Bush stated to Trooper Lofrese, "I had to swerve to the right lane, almost striking a black male, who was exiting the truck from the passenger side [. . .] I looked in my rearview mirror and saw a white vehicle strike the DOT truck" (T: 279). Bush was driving at 75 mph. He was an EMS worker, so he pulled over to give medical attention (Exh. 2, pp. 5 [narrative], 12 [Bush deposition]; T: 279-281).
New York State Police Investigator Eric Haydt ("Investigator Haydt") testified that he responded to the accident scene as a member of the accident reconstruction unit. He took photographs, made notes, and set up a "Total Station" marker unit to forensically map the scene. Later the data is downloaded and a scale drawing of the accident scene is produced (T: 287-290). The temperature at the scene was 18 degrees and the grass was frozen (T: 290-292). He believed there was sufficient space for the DOT truck driver "to get completely off the road" (T: 298). Investigator Haydt did not know the speed of the Pascoe vehicle at impact, but the vehicle's speedometer showed 75 mph. The posted speed limit is 65 mph. The sight distance approaching the parked truck was between a quarter and a half mile. He was unaware of traffic conditions at the time of the accident, but Mr. Pascoe had approximately 34 feet of roadway to move out of the way of the truck (T: 306-308, 313, 320-321). Traveling at 65 mph, a driver would have had at least 15 seconds to observe the parked truck and get out of the way, which would be ample time unless the driver was distracted. There were no mechanical problems found in Mr. Pascoe's vehicle that contributed to the accident (T: 309-312, 315). The trooper agreed that other variables could have affected Mr. Pascoe's reaction, like a car blocking Mr. Pascoe's view of the truck, a passenger jumping out of the truck, or traffic in the right lane (T: 315-316).
Counsel referred to the "odometer," but a brief exchange at the end of trial indicated that he most likely meant the speedometer (T: 320-321).
In the Incident Report section of the accident reconstruction report, Investigator Baird writes as part of the initial narrative,
"On 3/26/15, I contacted Maryellen Albanese, Senior Assistant District Attorney for the Orange County district Attorney's Office [. . .] I informed her that Inv. Haydt and myself both agreed that the largest contributing factor of the accident was that the D.O.T. vehicle was parked partially in the roadway without the vehicle's rear facing instructional black board being activated [. . .] [W]e both agreed that Tice lacked criminal intent or any gross criminal negligence for any type of Penal Law crime since Tice and Williams both stated that Tice was in the process of activating the board. Also, the statement from all three D.O.T. employees concur in that the D.O.T. vehicle had just pulled over and was not sitting in the roadway for that long. Tice claimed, and Hamilton and Williams agreed, that he pulled over with the D.O.T. truck still partially in the roadway due to not wanting the vehicle's driver side tires to be on a grassy declined slope leading to the truck either rolling or sliding into the median or getting stuck."
(Exh. 2, p. 6).
In the final Conclusions section of the accident reconstruction report, Investigator Haydt writes, "The primary contributing factor for this collision is on the part of the operator of Vehicle #2, Robert J. Pascoe, Jr., for failing to exercise due caution to avoid a collision with a vehicle engaged in hazardous operation, which was displaying one or more amber lights as defined in the New York State Vehicle and Traffic Law."
(Exh. 2, p. 38).
The undisputed facts testified to provide that on January 15, 2015, a three-man DOT crew was working picking up debris on the State roadways. At approximately 9:00 a.m., the driver of the yellow DOT truck stopped the truck on the left side of the passing lane heading east on I-84, near milepost marker 15.3 in Orange County, so they could pick up a dead deer on the median separating the two lanes heading east from the two lanes heading west. The passenger side of the truck was protruding approximately three feet into the passing lane of I-84. Immediately after the truck stopped, one of the workers exited the front passenger side of the truck and walked back around the truck while putting on his orange work vest. The worker in the back seat was putting his vest on in the truck. Warning lights on the truck were activated, including rotating amber lights on the roof, standard four-way emergency flashers, and amber lanterns on gimbal arms extending out, left and right, at the rear of the truck. The roof lights were obscured from the back by a large stationary message board that when engaged displayed a flashing arrow as an additional warning message. The driver had released his seatbelt and reached toward the dashboard to program and engage the message board when a car hit the right rear of the stopped truck, pushing it forward. The car spun across the road and ended up on its side, and the driver was declared dead at the scene. The posted speed limit on I-84 is 65 mph.
It is also undisputed that under these facts the controlling standard of care is reckless disregard for the safety of others, as opposed to negligence, because the DOT truck was a hazard vehicle "actually engaged in hazardous operation on or adjacent to a highway" (Vehicle and Traffic Law § 1103[b] [statutory exemption], § 117-a ["hazard vehicle" defined], and § 117-b ["hazardous operation" defined]). In Riley v County of Broome, 95 NY2d 455 (2000), the Court of Appeals concluded that liability under the reckless disregard standard is established upon a showing that the covered vehicle's operator "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" (id. at 466, quoting Saarinen v Kerr, 84 NY2d 494, 501 [1994]; see Faria v City of Yonkers, 84 AD3d 1306 [2d Dept 2011]).
Defendant argues that the "hazardous operations" of maintenance vehicles on a highway "presumes interference with the normal flow of traffic, and no suggestion is made of any particular conditions or circumstances on this highway, at this time, and at this place, that made such interference 'a risk that was so great as to make it highly probable that harm would follow' " (Memorandum of Law and Fact, p. 7, quoting Saarinen at 501). The court disagrees and finds that the decision to park protruding into the high-speed roadway, combined with the failure to engage the message board, posed an obvious risk of a collision. Williams testified that it was unsafe to park on the roadway, and he would have parked on the shoulder. Investigator Baird concluded in the reconstruction report that, "the largest contributing factor of the accident was that the D.O.T. vehicle was parked partially in the roadway without the vehicle's rear facing instructional black board being activated" (Exh. 2, p. 6).
Claimant's evidence establishes prima facie that Tice had a safer alternative available - parking entirely on the grassy median or the shoulder of the roadway. Tice admitted that he could have parked entirely on the median or on the shoulder and explanations for choosing the less safe alternative are not reasonable. The court does not credit Tice's or Hamilton's testimony that the truck could have become stuck or rolled over if parked on the median. According to Investigator Haydt, the accident reconstruction investigator, the ambient temperature was 18 degrees and the ground was frozen. The photographs of the scene also show that the incline was not severe, and that the truck was not too wide to fit on the relatively flat area of the median (Exh. 1-A).
The court also finds that Tice parked on the roadway "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" (Riley v County of Broome, 95 NY2d at 466 [citations omitted]). The DOT truck protruded into the left lane of I-84 by three feet. The risk posed by such an obstruction on a highway with a 65 mph speed limit is obvious. Even if the court were to credit Hamilton's and Tice's testimony that they did not see any traffic at 9:00 a.m., there was a substantial risk that at any moment vehicles traveling at high speeds would appear. This is exactly what happened. The roof beacons were engaged, but the message board hid them from the rear, and Mr. Pascoe was driving behind another vehicle so it is possible that other warning lights on the truck would have been obscured until the other vehicle swerved to avoid hitting Hamilton. The court is unpersuaded that Tice, who had been a maintenance worker with DOT for 13 years, did not realize the risk he was taking by partially blocking the roadway on I-84 without sufficient warning signals. In finding 100% liability in Contreras v State of New York, UID No. 2013-030-003 (Ct Cl, Scuccimarra, J., Feb. 15, 2013), where a snowplow making a U-turn had no roof light, Judge Scuccimarra stated, "not utilizing all available tools to warn the public of the presence of a hazard vehicle engaged in hazardous work on the highway is part of the analysis of whether the conduct was merely negligent, or reckless" (see Ryan v Town of Smithtown, 49 AD3d 853, 854 [2d Dept 2008]).
The conduct established by claimant does not amount to a "momentary lapse in judgment" (Ayers v O'Brien, 13 NY3d 456, 459 [2009] [finding claimant must prove " 'more than a momentary judgment lapse' on the part of the defendant"], quoting Saarinen at 502; see Szczerbiak v Pilat, 90 NY2d 553, 557 [1997] [finding officer was not reckless in glancing down to activate emergency lights]; see also Matsch v Chemung County Dept. of Pub. Works, 128 AD3d 1259, 1261 [3d Dept 2015] [affirming dismissal where evidence showed driver of street sweeper had a momentary lapse in judgment but was not reckless while changing lanes; driver looked in mirror but did not see claimant's vehicle]; Green v State of New York, 71 AD3d 1310, 1312 [3d Dept 2010] [finding officer was not reckless in attempting a U-turn because "he acted under the mistaken belief that claimant's car had come to a complete stop, which constituted a momentary lapse in judgment not rising to the level of 'reckless disregard for the safety of others' "]).
However, claimant must bear at least some responsibility for the accident. Although Investigator Haydt could not testify as to Mr. Pascoe's speed, the evidence established it was more likely than not that he was traveling at approximately 75 mph, 10 mph over the speed limit. His speedometer was at 75 mph, and the driver of the car in front of him testified to going 75 mph. Mr. Pascoe was either traveling too close behind the other car to have sufficient reaction time to swerve out of the way, or he failed to avoid the truck even though it was a clear day and, according to Investigator Haydt, he would have had sufficient opportunity to see it and move. It is well settled that the violation of a statute which establishes a specific standard of care may result in either absolute liability or a finding of negligence per se (see Elliott v City of New York, 95 NY2d 730 [2001]; see also Ciatto v Lieberman, 266 AD2d 494 [2d Dept 1999]). If Mr. Pascoe was tailgating and speeding, he was in violation of Vehicle and Traffic Law § 1129(a), which provides, "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." If he was not tailgating, he was still speeding. Claimant presented no evidence of another obstruction to Mr. Pascoe's view of the truck in the roadway, or preventing him from moving out of the way. "[D]rivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (Filippazzo v Santiago, 277 AD2d 419 [2d Dept 2000] [citations omitted]).
As a result, the court finds defendant liable in the proportion of 50% and claimant liable to the extent of 50%. Eventual judgment, after trial on damages, will be adjusted accordingly. The Clerk of the Court is directed to enter interlocutory judgment accordingly. A trial on damages will be scheduled as soon as practicable.
It is noteworthy that Investigator Baird concluded that the "largest contributing factor" to the accident was the DOT truck partially obstructing the roadway, and Investigator Haydt concluded the "primary contributing factor" was Mr. Pascoe's failure to avoid the truck. --------
November 21, 2017
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims