Mitchell v. State, 66340

• Decision Date: 21 February 1985
• Docket Number: No. 66340,66340
• Citation: 486 N.Y.S.2d 97,108 A.D.2d 1033
• Parties: Wallace P. MITCHELL et al., Appellants, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 97

486 N.Y.S.2d 97

108 A.D.2d 1033

Wallace P. MITCHELL et al., Appellants, v. STATE of New York, Respondent.

Claim No. 66340.

Supreme Court, Appellate Division,

Third Department.

Feb. 21, 1985.

Carey, La Rocque & Piasecki, Malone (John A. Piasecki, Malone, of counsel), for appellants.

Lewis, Bell & Niles, Plattsburgh (Charles H. Lewis, Plattsburgh, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, CASEY and WEISS, JJ.

CASEY, Justice.

Appeal from a judgment of the Court of Claims, entered March 16, 1984, which dismissed the claim.

In the afternoon of November 29, 1981, a passing motorist reported the reckless operation of a red Buick vehicle to State Trooper Robert Benjamin, who was patrolling in and around the Village of Fort Covington, Franklin County. At about 5:15 P.M., Trooper Benjamin spotted the vehicle on Route 37 in the west end of the Village. At a speed estimated to be 60 to 70 miles per hour, it overtook and passed the troop car from the rear and proceeded westerly, weaving from side to side of the road and almost rear-ending another vehicle. At this time the trooper undertook pursuit of the vehicle. Speeds of 70 to 100 miles per hour were reached. At one point, when the Buick turned sharply right on Drum Street Road, the trooper moved close enough to obtain the Buick's license plate number, but not to identify the occupants, who began throwing beer bottles out of the window as the car zig-zagged down the center of the roadway at a speed of 100 miles per hour. When the vehicle again reached 100 miles per hour, the trooper turned off his revolving red lights and siren, discontinued the pursuit, "slowed down" and "backed off", but had the vehicle in sight. At the intersection of Drum Street Road and Cook Road, the trooper stopped his car, turned off all lights and lost visual contact with the Buick, which had turned left onto Cook Road. The trooper remained stopped for only about 10 to 15 seconds to convey the impression that the chase had been discontinued. When he resumed pursuit on Cook Road, the trooper claims it was at no more than 50 miles per hour and from 500 feet behind the Buick.

Cook Road is a dirt road at its intersection with Drum Street Road, but becomes paved and about 12 feet wide after about one tenth of a mile. At a curve in Cook Road, near the residence of Bernie Cook, the Buick collided head-on with a vehicle proceeding in the opposite direction, operated by claimant Wallace P. Mitchell. The trooper claimed that he was still 500 feet behind the Buick at the time of the accident. A witness, Theodore Cook, testified that the Buick and troop car were about a car length apart and proceeding at about 35 to 40 miles per hour. A traffic engineering expert for claimants testified that, in his opinion, the design of Cook Road was inadequate and this defect was a proximate cause of the accident. However, the Court of Claims rejected this testimony for its failure to consider the speed of the vehicle. It also found that defective road design was not a proximate cause of the accident. In regard to the trooper's pursuit, the court held that although the pursuit had not been discontinued at the time of the accident, such pursuit was not a proximate cause thereof. The claim was dismissed and this appeal by claimants ensued.

We agree with the determination of the Court of Claims. Upon reviewing the record and weighing the evidence presented, we conclude that the findings of fact made by that court should not be disturbed (see Arnold v. State of New York, 108 A.D.2d 1021, 486 N.Y.S.2d 94). The conduct of...