Martin v. Miller

• Decision Date: 19 November 1998
• Citation: 255 A.D.2d 816,680 N.Y.S.2d 300
• Parties: 1998 N.Y. Slip Op. 10,225 Sherry M. MARTIN et al., Respondents, v. Darrell E. MILLER et al., Defendants, and Lisa Francia et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 300

680 N.Y.S.2d 300

1998 N.Y. Slip Op. 10,225

Sherry M. MARTIN et al., Respondents, v. Darrell E. MILLER et al., Defendants and Lisa Francia et al., Appellants.

Supreme Court, Appellate Division Third Department.

Nov. 19, 1998.

Wisner, Saunders & Livingston (Michael D. Saunders of counsel), Watertown, for appellants.

Seymour P. Fox P.C. (Bonnie P. Chavin of counsel), Troy, for respondents.

Before MERCURE, J.P., and CREW, YESAWICH, CARPINELLO and GRAFFEO, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (Demarest, J.), entered August 28, 1997 in St. Lawrence County, which denied a motion by defendants Lisa Francia and Village of Gouverneur for summary judgment dismissing the complaint against them.

During the early morning hours of May 26, 1995, defendant Lisa Francia, a police officer for defendant Village of Gouverneur, responded to a complaint of a small white vehicle with pinstripes driving recklessly through the streets of the Village of Gouverneur, St. Lawrence County. While on patrol, Francia observed a vehicle matching that description round a corner with its tires squealing. Francia then pursued the vehicle, which was owned by defendant Beverly J. Miller and operated by her son, defendant Darrell E. Miller (hereinafter Miller), and attempted to pull Miller over by activating first the red lights on her patrol car and then her "wiggle-waggle" lights, i.e., the white front headlights that alternate back and forth. According to Francia, Miller not only failed to stop but increased his speed as he approached a curve in the road, whereupon he lost control of his vehicle and struck a parked car, a utility pole, plaintiffs' home and, finally, a tree. Miller, who subsequently stated that he was blinded by the lights of a vehicle traveling approximately 75 feet behind him (which he did not recognize to be a police vehicle), then fled the scene.

At the time of the accident, plaintiff Sherry M. Martin was sleeping on her living room couch and, as a result of the impact from the Miller vehicle, allegedly was thrown across the room and sustained certain injuries. Martin and her spouse, derivatively, subsequently commenced this action against Francia, the Village of Gouverneur (hereinafter collectively referred to as defendants), Miller and his mother. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint against them contending, inter alia, that Francia's conduct during the course of the pursuit did not demonstrate a reckless disregard for the safety of others. Supreme Court denied the motion and this appeal ensued.

It is well settled that "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" (Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988). The "reckless disregard" standard, which may be traced to Vehicle and Traffic Law § 1104, ¹ "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" (id., at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed.]; see, Dibble v. Town of Rotterdam, 234 A.D.2d 733, 735, 650 N.Y.S.2d 897, lv. denied 89 N.Y.2d 811, 657 N.Y.S.2d 404, 679 N.E.2d 643; Mullane v. City of Amsterdam, 212 A.D.2d 848, 850, 622 N.Y.S.2d 346).

Applying this standard to the matter before us, it is apparent that defendants' motion for summary...