Opinion
July 6, 1970
In consolidated negligence actions to recover damages for personal and property injuries, etc., defendant City of New York appeals from so much of an interlocutory judgment of the Supreme Court, Kings County, dated October 22, 1968, as is in favor of plaintiffs on the issues of liability, upon a jury verdict after trial upon those issues only. Judgment affirmed insofar as appealed from, with costs to respondents Coppola. The accident occurred when a motor vehicle fleeing from a pursuing unmarked police vehicle ran through a red traffic light at the intersection of Fort Hamilton Parkway and 75th Street, Brooklyn, and collided with the vehicle driven by plaintiff Thomas Coppola, who had entered the intersection from 75th Street with a green light in his favor. The pursuing police vehicle did not collide with either car. The police began the chase on the Belt Parkway in Brooklyn after the vehicle had passed a stop sign without stopping. Upon the police overtaking the vehicle on the Belt Parkway the vehicle's driver attempted to force the police vehicle off the road. The driver then exited from the Belt Parkway onto Fort Hamilton Parkway with the unmarked police vehicle in close pursuit. The fleeing vehicle admittedly ran through some 16 red lights while on Fort Hamilton Parkway. The speed of the chase varied between 40 and 60 miles an hour. One police officer fired three warning shots to no avail. The police stated they used the siren, though not constantly. They used the flashing lights located in the grille of their unmarked car. They did not use the radio to summon assistance in the chase, which took approximately three minutes. The plaintiff driver Thomas Coppola testified that as he drove on 75th Street and approached the intersection with Fort Hamilton Parkway he observed the traffic on Fort Hamilton Parkway. He saw a vehicle almost a block away. He continued into the intersection, as the light was green in his favor. He next observed the vehicle he had seen just moments before coming at high speed into the intersection. There was a second vehicle immediately in back of it. The first vehicle collided with his vehicle. At no time did he hear a siren or see any flashing lights. Several bystander eyewitnesses also testified that they heard no siren and saw no flashing lights. A municipality is not to be held liable for the act of its police officers in undertaking a pursuit of a traffic violator. The police have a duty to undertake the pursuit. If the officers conduct the pursuit using their best judgment as to the most effective means of dealing with the violator, no liability will attach to their acts, even though hindsight might disclose alternate methods that may have been safer for the public bystanders ( Stanton v. State of New York, 29 A.D.2d 612, affd. 26 N.Y.2d 990). The police officers, however, are not immune from their own acts of negligence which factually may be found to be a proximate or concurrent proximate cause of the accident. In the present case the jury could clearly find that the police officers did not sound their siren or operate their flashing lights during the pursuit. The jury could also conclude that had the siren been sounding and the lights flashing at the time the plaintiff-driver observed the fleeing vehicle, he would have been warned and would not have entered the intersection (New York City Traffic Regulations [1957], art. 1, § 2-B, subds. [a], [b]; cf. Vehicle and Traffic Law, § 1104). We are of the opinion that the failure of the police to sound the siren and flash the lights was negligence and under the facts of this case was a concurrent proximate cause of the accident (cf. Stanton v. State of New York, supra: Jansen v. State of New York, 60 Misc.2d 36, affd. 32 A.D.2d 889; Brennan v. City of Albany, 284 App. Div. 997). This case is distinguishable from Murphy v. City of New York ( 16 A.D.2d 678). In that case the evidence did not clearly demonstrate, as here, that the police officers failed to conduct the pursuit as they themselves contended it was done. We find no merit to the other issues raised on the appeal. Hopkins, Brennan and Benjamin, JJ., concur; Christ, P.J., dissents and votes to reverse the interlocutory judgment and dismiss the complaints of plaintiffs against the City of New York, with the following memorandum: In the course of a high-speed automobile chase through city streets, the acts and omissions of the police officers involved, reflected upon in tranquility, will rarely, if ever, be such as to escape plausible suggestions as to how the pursuit might have been conducted in a safer manner. The emergent nature of the undertaking permeates it with any number of choices between alternative courses of action, all of which have more or less merit, while simultaneously eliminating the time for reflective choice or, indeed, for reflection at all. For example, if the officers fail to apply direct force to the driver of the fleeing car or to the vehicle itself, their restraint may later become a source of fault (cf. Jansen v. State of New York, 60 Misc.2d 36, 43, affd. 32 A.D.2d 889). On the other hand, a proposal by an officer to use direct force may be later employed to indicate irresponsibility on his part (cf. Stanton v. State of New York, 26 N.Y.2d 990 [Burke, J., dissenting]). In the instant case, we are affirming a judgment against the City of New York solely because the pursuing officers did not have their siren and flashing lights in operation when the accident occurred. Yet, in Murphy v. City of New York ( 16 A.D.2d 678), on virtually identical facts, we affirmed a dismissal of the complaint against the city. In Stanton v. State of New York ( supra), where a State Trooper conducted a chase at speeds up to 100 m.p.h. with his roof light and headlights off while proceeding south in the northbound side of a four-lane highway on a holiday weekend, the trooper was held not negligent. If the trooper's conduct in Stanton was not sufficient to impose liability on the State, it is inconceivable that the city can or should be held in this case. Whether the analysis proceeds in terms of governmental duty (cf. Riss v. City of New York, 22 N.Y.2d 579, 581; Murphy v. City of New York, supra); or proximate cause (cf. Stanton v. State of New York, 29 A.D.2d 612, 613-614, affd. 26 N.Y.2d 990, supra; Wrubel v. State of New York, 11 Misc.2d 878, 879-880); or the standard of responsibility set forth in subdivision (e) of section 1104 Veh. Traf. of the Vehicle and Traffic Law ("reckless disregard for the safety of others"); or public policy alone (cf. Tobin v. Grossman, 24 N.Y.2d 609, 619; Williams v. State of New York, 308 N.Y. 548, 557), this interlocutory judgment should be reversed and the complaints of plaintiffs against the City of New York dismissed. (Beldock, P.J., deceased.)