Selkowitz v. Nassau County

• Decision Date: 15 June 1978
• Parties: , 379 N.E.2d 1140 Roger SELKOWITZ et al., Respondents, v. COUNTY OF NASSAU, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 10

408 N.Y.S.2d 10

45 N.Y.2d 97, 379 N.E.2d 1140

Roger SELKOWITZ et al., Respondents, v. COUNTY OF NASSAU, Appellant.

Court of Appeals of New York.

June 15, 1978.

Edward G. McCabe, County Atty. (Matthew Tedone, Natale C. Tedone and J. Trubee Miller, Mineola, of counsel), for appellant.

Morris Block, New Rochelle, for respondents.

OPINION OF THE COURT

WACHTLER, Judge.

In this negligence action arising out of an automobile collision during a high-speed police chase, a jury found the defendant county liable for injuries sustained by the plaintiff bystanders after hearing expert testimony on the propriety of using a police vehicle as a partial or complete roadblock. The admissibility of the expert's opinion evidence is the critical issue on this appeal by the county.

According to the trial testimony of Patrolman Donley of the Nassau County Police Department, while on motor patrol duty shortly before 3:00 a. m. on May 7, 1972, he received a radio call for assistance in intercepting and stopping a stolen Lincoln sedan. The Lincoln's 14-year-old driver had turned off the parkway and was being pursued at high rates of speed by a State Parkway Police vehicle.

A second radio message advised Patrolman Donley that the State Police were then in pursuit southbound on Grand Avenue, a four-lane undivided thoroughfare with a parking lane and sidewalks on either side. By the time he received a third radio report, Donley was heading northbound on Grand Avenue just south of an intersection with North William Street.

Three cars occupying Grand Avenue's southbound lanes were stopped behind a red traffic signal at that intersection. The plaintiffs were passengers in one of those cars, a Volkswagen stopped in the lane nearest the center of the road. Another car was behind the Volkswagen and a third was alongside in the right southbound lane. The parking lanes on both sides of Grand Avenue were unobstructed.

As Patrolman Donley approached the intersection from the opposite direction, he observed the Lincoln closing in at a distance of approximately 500 feet and a speed of some 70 to 80 miles per hour. He testified that just after crossing North William Street he had pulled over to the parking lane against the curb on the northbound side, intending to make a U-turn and assist in the chase after pursuer and pursued had passed.

According to the plaintiffs' testimony, however, the police vehicle was in fact positioned slantwise across the northbound lanes adjacent to the Volkswagen blocking the traveled portion of Grand Avenue completely and causing the driver of the stolen Lincoln to suddenly apply his brakes, skid sideways and collide without any warning into the rear of the three cars still stopped at the traffic light. Both plaintiffs were severely injured.

After presenting their version of the accident to the jury, the plaintiffs called former Police Captain John McCaffrey as a purported expert witness on emergency traffic procedures. As a 26-year veteran of traffic control management and a former Senior Police Examiner for the State of New York with 11 years' experience as an instructor and consultant for various police departments, the witness' qualifications as an expert were found by the trial court to be beyond objection. He was therefore permitted to testify, again over the defendant's objection, that in his opinion it would be neither proper nor accepted police practice to place an emergency vehicle across the northbound lanes under the circumstances described on direct examination. The witness based his opinion on a single premise: the first concern of a policeman driving an authorized emergency vehicle is for the complete safety of the public and he should therefore at no time jeopardize anyone using a public highway by placing his vehicle in a position which might create a dangerous condition.

On cross-examination Mr. McCaffrey was asked whether it would not be proper police practice to have stopped the emergency vehicle in the parking lane next to the curb some 10 to 15 feet north of the three cars stopped at the traffic light on the opposite side of the road. The witness answered that this would create a partial roadblock endangering the three stopped cars since the open parking lane would otherwise be considered by the fleeing driver of the Lincoln as part of the roadway available for escape. The proper police practice in his opinion would have been to pull off the highway at the intersection or any driveway, report his position, and join in the pursuit only after the speeding vehicles had safely passed the three jeopardized cars.

The trial court charged the jury on negligence generally and then sought to relate the trial testimony to the law, including relevant portions of the Vehicle and Traffic Law dealing with authorized emergency vehicles and the traditional guidelines for determining the weight, if any, to be accorded an expert's testimony. Specifically the jury was instructed that the expert's opinion should be entitled to no greater weight than his qualifications and over-all credibility were found to warrant; his testimony was admitted solely to assist the jury in determining the appropriate standard of care for a police vehicle in an emergency situation, but not to provide any ready-made answer or to otherwise control the judgment of the jury. A verdict in favor of the plaintiffs was returned on the issue of liability.

The defendant on this appeal argues that the trial court's failure to properly instruct the jury on the law to be applied in emergency situations, coupled with the license afforded to the expert's testimony, in effect gave the jury no choice but to find the county negligent.

We agree with the majority at the Appellate Division, 58 A.D.2d 888, 396 N.Y.S.2d 885, that the main issue at trial was essentially one of credibility and that both sides...