95 N.Y.2d 455, Riley v. County of Broome

Citation:95 N.Y.2d 455, 719 N.Y.S.2d 623
Party Name:Riley v. County of Broome
Case Date:November 21, 2000
Court:New York Court of Appeals
 
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Page 455

95 N.Y.2d 455

719 N.Y.S.2d 623

Betty A. Riley et al., Appellants,

v.

County of Broome et al., Respondents.

John P. Wilson, Appellant,

v.

State of New York, Respondent.

New York Court of Appeals

November 21, 2000.

        Argued October 17, 2000

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[Copyrighted Material Omitted]

Page 457

         COUNSEL

        Thomas F. Cannavino, Endicott, for appellants in the first above-entitled action. I. This Court should not extend the qualified privilege for emergency vehicles to hazard vehicles. (McDonald v State of New York, 176 Misc 2d 130; Saarinen v Kerr, 84 N.Y.2d 494; Somersall v New York Tel. Co., 74 A.D.2d 302, 52 N.Y.2d 157; Cottingham v State of New York, 182 Misc 2d 928; Szczerbiak v Pilat, 90 N.Y.2d 553; Bliss v State of New York, 179 Misc 2d 549; Abood v Hospital Ambulance Serv., 30 N.Y.2d 295; LaMotta v City of New York, 130 A.D.2d 627; Mattera v Avis Rent A Car Sys., 245 A.D.2d 274; Kerwin v County of Broome, 134 A.D.2d 812.) II. The 1974 amendments to Vehicle and Traffic Law § 1103 (b) did not expand the qualified privilege provided for emergency vehicles under Vehicle and Traffic Law § 1104 to hazard vehicles. (Stanton v State of New York, 26 N.Y.2d 990; Saarinen v Kerr, 84 N.Y.2d 494; Strobel v State of New York, 36 A.D.2d 485, 30 N.Y.2d 629; Thain v City of New York, 35 A.D.2d 545, 30 N.Y.2d 524; Dunn v State of New York, 34 A.D.2d 267.) III. The statutory language of Vehicle and Traffic Law § 1103 (b) specifically limits the qualified privilege for hazard vehicles to parking restrictions provided for in subdivision (a) of section 1202 of the Vehicle and Traffic Law. IV. Even assuming that a qualified privilege exists for hazard vehicles under Vehicle and Traffic Law § 1103 (b), it would only apply to "rules of the road" violations. (McDonald v State of New York, 176 Misc 2d 130; Bliss v State of New York, 179 Misc 2d 549; Gonzalez v Iocovello, 93 N.Y.2d 539; Szczerbiak v Pilat, 90 N.Y.2d 553; Sorensen v Nazarian, 175 A.D.2d 417; Kelley v State of New York, 24 A.D.2d 831, 21 N.Y.2d 901; Gurecki v State of New York, 18 Misc 2d 527; Malanify v Pauls Trucking Co., 27 A.D.2d 622, 19 N.Y.2d 804; Gaynor v State of New York, Dept. of Pub. Works, 61 A.D.2d 1086; Beardsley v State of New York, 57 A.D.2d 1061.) V. Respondents were required by State regulations to display appropriate traffic control devices. (Zecca v State of New York, 247 A.D.2d 776; Bliss v State of New York, 179 Misc 2d 549; McDonald v State of New York, 176 Misc 2d 130.)

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        William L. Gibson, Jr., County Attorney of Broome County, Binghamton (Robert G. Behnke of counsel), for respondents in the first above-entitled action. I. The trial court correctly charged the jury that the reckless disregard standard of Vehicle and Traffic Law § 1103 applied in this case. (McDonald v State of New York, 176 Misc 2d 130; Cottingham v State of New York, 182 Misc 2d 928; Saarinen v Kerr, 84 N.Y.2d 494; Szczerbiak v Pilat, 90 N.Y.2d 553; Somersall v New York Tel. Co., 52 N.Y.2d 157.) II. The reckless disregard standard applies to all facets of defendants' street sweeping activity. (Martin v Miller, 255 A.D.2d 816; Szczerbiak v Pilat, 90 N.Y.2d 553.) III. The court below properly charged that the reckless disregard standard applied to alleged violations of uniform manual of traffic control devices. (Bliss v State of New York, 179 Misc 2d 549.)

        Lockwood & Golden, Utica (Lawrence W. Golden and B. Brooks Benson of counsel), for appellant in the second above-entitled action. I. The court below erred in holding that the operator of the State snowplow engaged in customary plowing along a highway was liable only for "reckless disregard" under Vehicle and Traffic Law § 1103 (b), contrary both to legislative intent and public policy. (Cottingham v State of New York, 182 Misc 2d 928; Saarinen v Kerr, 84 N.Y.2d 494; Campbell v City of Elmira, 84 N.Y.2d 505; Rust v Reyer, 91 N.Y.2d 355; Sherman v Robinson, 80 N.Y.2d 483; D'Amico v Christie, 71 N.Y.2d 76; Hechter v New York Life Ins. Co., 46 N.Y.2d 34; Matter of Sullivan Co., 289 N.Y. 110; Jones v City of Albany, 151 N.Y. 223; Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577.) II. The court below erred in holding that the standard of "reckless disregard" in Vehicle and Traffic Law § 1103 (b) need not be pleaded as an affirmative defense. (Culhane v State of New York, 180 Misc 2d 61; McDonald v State of New York, 176 Misc 2d 130; Dinerman v Poehlman, 237 A.D.2d 483; Liu v New York City Police Dept., 216 A.D.2d 67; Dwyer v Mott, 87 Misc 2d 965; Bragg v Genesee County Agric. Socy., 84 N.Y.2d 544; Ferres v City of New Rochelle, 68 N.Y.2d 446; Saarinen v Kerr, 84 N.Y.2d 494; Pellegrino v New York City Tr. Auth., 177 A.D.2d 554; Somersall v New York Tel. Co., 74 A.D.2d 302, 52 N.Y.2d 157; Stewart v Volkswagen of Am., 181 A.D.2d 4.)

        Eliot Spitzer, Attorney General, Albany (Robert M. Goldfarb, Preeta D. Bansal, Daniel Smirlock and Peter G. Crary of counsel), for respondent in the second above-entitled action. I. A snowplow engaged in plowing snow from a highway is a vehicle

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"actually engaged in work on a highway" subject to the reckless disregard standard of care in Vehicle and Traffic Law § 1103 (b). (Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577; Saarinen v Kerr, 84 N.Y.2d 494; McDonald v State of New York, 176 Misc 2d 130; Cottingham v State of New York, 182 Misc 2d 928; People v Foster, 73 N.Y.2d 596; People v Finnegan, 85 N.Y.2d 53, 516 U.S. 919.) II. The statutory burden of proof set forth in Vehicle and Traffic Law § 1103 (b) is not an affirmative defense which must be pleaded under CPLR 3018 (b). (Ferres v City of New Rochelle, 68 N.Y.2d 446; Gill v Montgomery Ward & Co., 284 App Div 36; Mayers v D'Agostino, 58 N.Y.2d 696; Dinerman v Poehlman, 237 A.D.2d 483, 90 N.Y.2d 838, 808; Liu v New York City Police Dept., 216 A.D.2d 67, 87 N.Y.2d 802, 517 U.S. 1167; McDonald v State of New York, 176 Misc 2d 130; Culhane v State of New York, 180 Misc 2d 61; Sims v Town of Ramapo, 177 Misc 2d 302; Rogoff v San Juan Racing Assn., 77 A.D.2d 831, 54 N.Y.2d 883.)

        OPINION

        Chief Judge Kaye.

        These appeals call upon us to do what increasingly is asked of courts in this age of statutes: interpret the words of a legislative enactment which the contesting parties construe differently. In particular, we are asked whether Vehicle and Traffic Law § 1103 (b) exempts statutorily defined "hazard vehicles" engaged in highway work from the "rules of the road," and whether it limits the liability of their owners and operators to reckless disregard for the safety of others. We conclude that defendants correctly read the statute, and we hold--as did the courts before us--that the vehicles here were exempt from the rules of the road and their liability limited to reckless conduct.

        Riley v County of Broome

        Defendant Garwood A. Young, an employee of the Broome County Highway Division, was operating a street sweeper on West Colesville Road in the Town of Kirkwood. Young was driving two or three miles per hour, with the sweeper straddling the shoulder and the road. Plaintiff Betty Riley was also driving on West Colesville Road, in the same direction as the street sweeper. As Riley reached the top of a hill, she saw a "huge patch of fog"--actually a cloud of dirt and dust created by the sweeper--and collided with the sweeper.

        Riley and her husband brought this action against Young and the County, alleging that the sweeper caused the accident.

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At trial, the court held--over Riley's objection--that, under Vehicle and Traffic Law § 1103 (b), the applicable standard of care was whether defendants conducted themselves "in such a way so as not to recklessly disregard the safety of others." The court then charged the jury on that standard. The jury returned a verdict in favor of defendants, finding no recklessness in the operation of the...

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