Saarinen v. Kerr

• Decision Date: 01 December 1994
• Citation: 644 N.E.2d 988,620 N.Y.S.2d 297,84 N.Y.2d 494
• Parties: , 644 N.E.2d 988 Vicky L. SAARINEN, Respondent, v. Christopher A. KERR, Respondent, and Village of Massena, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 297

620 N.Y.S.2d 297

84 N.Y.2d 494, 644 N.E.2d 988

Vicky L. SAARINEN, Respondent, v. Christopher A. KERR, Respondent, and Village of Massena, Appellant.

Court of Appeals of New York.

Dec. 1, 1994.

[84 N.Y.2d 496] [644 N.E.2d 989] Leonard, Mellon & Gebo, Ogdensburg (A. Michael Gebo, of counsel), for appellant.

Lockwood & Golden, Utica (Stephen L. Lockwood, of counsel), for Christopher A. Kerr, respondent.

[84 N.Y.2d 497] John A. Piasecki, Malone, for Vicky L. Saarinen, respondent.

OPINION OF THE COURT

TITONE, Judge.

Drivers of emergency vehicles have a primary obligation to respond quickly to preserve life and property and to enforce the criminal laws. Consequently, in recognition of these drivers' special needs, the Legislature enacted Vehicle and Traffic Law § 1104, which qualifiedly exempts them from certain traffic laws when they are "involved in an emergency operation." At issue in this appeal are the meaning and effect of the statute's provisions for civil liability in the event of an accident (Vehicle and Traffic Law § 1104[e]. Consistent with its language and purpose, we hold that Vehicle and Traffic Law § 1104(e) precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness.

The accident underlying this action occurred on a public road in the Village of Massena on March 4, 1988. According to plaintiff's submissions, Officer McGown, a seven-year veteran of the Village police force, was sitting in his patrol car at about 10:00 p.m. when he observed a dark colored van that fish-tailed and squealed its tires as it made a turn onto a Village street. Having decided almost immediately to stop the vehicle, McGown followed it and watched its driver, subsequently identified as defendant Kerr, run a stop sign at a speed of approximately 30 m.p.h. and then proceed into a nearby shopping center parking lot.

At that point, McGown activated his patrol car's red emergency lights. Rather than stopping, the van pulled away. McGown pursued the van behind the shopping center's stores and turned on his vehicle's siren. The van continued out onto a public road and drove into the lane for oncoming traffic, passing a red traffic light at the intersection. Concluding that the van was not going to stop in response to his show of authority, McGown reached for his radio with the intention of calling headquarters for help. His efforts were interrupted by the sound of a crash as Kerr's van collided with a vehicle driven by plaintiff. Subsequent tests revealed that Kerr had been drinking on the night of the accident.

Plaintiff, who was seriously injured as a result of the accident, brought the present action against Kerr and the Village of Massena. With respect to her claim against the Village, plaintiff contended that it should be held vicariously liable for McGown's lack of due care in pursuing Kerr's vehicle and liable for its own negligence in failing adequately to train McGown or to adopt an adequate pursuit policy.

Following discovery, the Village moved for summary judgment dismissing plaintiff's complaint and defendant Kerr's cross claims against it. In opposition to the motion, plaintiff and defendant Kerr relied principally on the evidence gleaned from McGown's deposition and testimony at Kerr's criminal trial. ¹ According to McGown's testimony, he had been driving at a rate of approximately 60 m.p.h. by the time the chase terminated in the accident. The posted speed limit in the area was 35 m.p.h. The night was clear, but the roads were wet. McGown observed no traffic on the road until he approached the intersection at which the accident took place. However, there were several fast food restaurants and a V.F.W. meeting hall in the vicinity, and all but one of the restaurants were open. The entire pursuit lasted no more than one or two minutes.

After reviewing the parties' submissions, Supreme Court granted the Village's motion and dismissed the complaint and cross claims against it. The court concluded that "recklessness" was the proper standard for assessing the officer's conduct and that plaintiff and defendant Kerr had "failed to raise any inference of reckless disregard for the safety of others by Officer McGown." The court also noted that plaintiff had failed to show how any of the alleged inadequacies in the Village's training of officers was proximately related to this accident. Indeed, the court held, there was no proof that it was McGown's conduct in pursuing Kerr rather than Kerr's own erratic and illegal driving that was the proximate cause of the accident.

On appeal, the Appellate Division reversed and reinstated the complaint and cross claims against the Village. The Court stressed the fact that the pursued Kerr vehicle had been traveling toward a "highly populated area" at the time of the accident (199 A.D.2d 724, 725, 606 N.Y.S.2d 55). Further, the Court noted, there was a possibility at that relatively early evening hour that there would be traffic on the road. Finally, the Appellate Division cited an affidavit by plaintiff's expert, which stated, in substance, that the Village's policies regarding police pursuits were inadequate and that allowing officers to engage in vehicular pursuit without proper training is "inherently dangerous and unsafe." Accordingly, the Court held, over a dissent by two Justices, there was sufficient evidence to raise questions of fact as to whether McGown had acted with "reckless disregard for the safety of others" (id., at 725, 606 N.Y.S.2d 55) and whether the Village's pursuit policy and training methods were adequate. The Court then granted the Village leave to appeal to this Court, certifying the following question of law for our resolution: "Did this court err as a matter of law in reversing the order of Supreme Court granting defendant Village of Massena's motion for summary judgment dismissing the complaint and cross claims against it and denying said motion?"

With respect to the Village's vicarious liability for Officer McGown's conduct, the initial critical question is what standard should be applied in evaluating the culpability of that conduct. The touchstone for our analysis is Vehicle and Traffic Law § 1104, which permits the driver of an "authorized emergency vehicle" (see, Vehicle and Traffic Law §§ 101, 114-b) to proceed past red traffic lights and stops signs, exceed the speed limit and disregard regulations regarding the direction of traffic, as long as certain safety precautions are observed (Vehicle and Traffic Law § 1104[b][1]-[4]. The privileges afforded by the statute are circumscribed by section 1104(e), which provides that "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others." This statute establishes the standard for determining an officer's civil liability for damages resulting from the privileged operation of an emergency vehicle.

Because the statute makes reference to both "due regard" and "reckless disregard" for the safety of others, the courts of this State have had some difficulty articulating the precise test for determining a driver's liability for injuries resulting from the operation of an emergency vehicle. In recent years, the Third Department has adhered to the more exacting standard of "recklessness" (Dugan v. Longo, 169 A.D.2d 872, 564 N.Y.S.2d 601; Kerwin v. County of Broome, 134 A.D.2d 812, 521 N.Y.S.2d 871, lv. denied 71 N.Y.2d 802, 527 N.Y.S.2d 768, 522 N.E.2d 1066; Mitchell v. State of New York, 108 A.D.2d 1033, 486 N.Y.S.2d 97, appeal dismissed 64 N.Y.2d 1128, 490 N.Y.S.2d 189, 479 N.E.2d 825, lv. denied 64 N.Y.2d 611, 490 N.Y.S.2d 1024, 479 N.E.2d 827; Selkowitz v. State of New York, 55 A.D.2d 709, 389 N.Y.S.2d 45; Dunn v. State of New York, 34 A.D.2d 267, 312 N.Y.S.2d 61; see also, Palella v. State of New York, 141 A.D.2d 999, 530 N.Y.S.2d 650; Stanton v. State of New York, 29 A.D.2d 612, 285 N.Y.S.2d 964, affd. 26 N.Y.2d 990, 311 N.Y.S.2d 28, 259 N.E.2d 494). The courts, however, have from time to time also used such terms as "unreasonable under the circumstances" (Simmen v. State of New York, 55 N.Y.2d 924, 926, 449 N.Y.S.2d 173, 434 N.E.2d 242; Rightmyer v. State of New York, 108 A.D.2d 1047, 486 N.Y.S.2d 99; Zulauf v. State of New York, 119 Misc.2d 135, 462 N.Y.S.2d 560, affd. 110 A.D.2d 1042, 489 N.Y.S.2d 1019; see also, Strobel v. State of New York, 36 A.D.2d 485, 321 N.Y.S.2d 11, affd. 30 N.Y.2d 629, 331 N.Y.S.2d 442, 282 N.E.2d 331; cf., Mercado v. Vega, 161 A.D.2d 365, 366, 556 N.Y.S.2d 30, revd on other grounds, 77 N.Y.2d 918, 569 N.Y.S.2d 595, 572 N.E.2d 36 [want of "due care"] and "negligent" (Stanton v. State of New York, 26 N.Y.2d 990, 992, 311 N.Y.S.2d 28, 259 N.E.2d 494, supra; Thain v. City of New York, 35 A.D.2d 545, 313 N.Y.S.2d 484, affd.30 N.Y.2d 524, 330 N.Y.S.2d 67, 280 N.E.2d 892; Murphy v. City of New York, 16 A.D.2d 678, 227 N.Y.S.2d 169; Wrubel v. State of New York, 11 Misc.2d 878, 174 N.Y.S.2d 687; see also, Myers v. Town of Harrison, 438 F.2d 293, cert. denied 404 U.S. 828, 92 S.Ct. 64, 30 L.Ed.2d 57), either alone or interchangeably with "recklessness," to describe the level of culpability that will support liability under Vehicle and Traffic Law § 1104(e). Likewise, courts of other jurisdictions have struggled with the meaning and effect of identically or similarly worded statutes (e.g., Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304; Lucas v. Los Angeles, 10 Cal.2d 476, 75 P.2d 599; Sacramento v. Hunger, 79 Cal.App. 234, 249 P. 223; Archer v. Johnson, 90 Ga.App. 418, 83 S.E.2d 314; Martin v. Rossignol, 226 Md. 363, 174 A.2d 149; Goddard v. Williams, 251 N.C. 128, 110 S.E.2d 820; see also, Duran v. Mission Mortuary, 174 Kan. 565, 258 P.2d 241).

Faced squarely with this question...