Simmen v. State, 59476

Decision Date09 July 1981
Docket NumberNo. 59476,59476
Citation81 A.D.2d 398,442 N.Y.S.2d 216
PartiesMichele A. SIMMEN, Respondent, v. STATE of New York, Appellant. (Claim) (And One Other Appeal.)
CourtNew York Supreme Court — Appellate Division

Robert Abrams, Atty. Gen. (Henderson G. Riggs and Shirley Adelson Siegel, Asst. Attys. Gen., Albany, of counsel), for appellant.

Frank A. Cissi, Utica (Salvador J. Capecelatro, Jr., Utica, of counsel), for respondent.

Before KANE, J. P., and MAIN, CASEY, MIKOLL and YESAWICH, JJ.

KANE, Justice Presiding.

Claimants were injured when the automobile in which they were riding was struck by a vehicle being pursued by a State trooper. The sole issue on this appeal is whether the actions of the trooper were negligent and a proximate cause of their injuries.

The events leading up to this tragic occurrence are not in substantial dispute.

At about 1:00 A.M. on Monday, July 23, 1973, a State Police vehicle operated by Trooper Francis A. DiNuzzo was proceeding northerly on the Albany-Shaker Road near its intersection with New York State Route 7, a four-lane highway. He was on routine patrol in a familiar area. As he approached the traffic control signal at the intersection, he observed an automobile, later discovered to be operated by John F. Plante, moving easterly on Route 7. It failed to stop for the light, which was red at the time, and passed through the intersection at an estimated speed of 65 to 70 miles per hour. DiNuzzo turned right and accelerated, regained sight of the Plante vehicle, and followed some 10 to 15-car lengths behind it, traversing a total distance of about one and one-half miles. During this interval his partner, Trooper Sweeney, operated equipment designed to measure the speed of moving automobiles. Observing no other traffic on the highway, DiNuzzo then activated his siren and flashing red lights. The Plante vehicle immediately accelerated from 70 to approximately 110 miles per hour, and a high speed pursuit ensued for about one mile with little change in the distance separating the two automobiles. At a point just west of the intersection between Route 7 and the Northway (Interstate 87), with no apparent reduction in speed, the Plante vehicle suddenly went out of control and crashed into claimants' automobile. Headed in the opposite direction, they were stopped preparing to turn left onto the southbound lanes of the Northway when so permitted by a traffic light. Claimant Michele A. Simmen sustained serious and permanently disabling injuries; those suffered by her husband, claimant Robert G. Simmen, were less severe. There was no contact between the State Police vehicle and any other involved in this occurrence. The weather was clear and the road surface was dry.

During the trial of the claims, each side offered expert testimony on the issue of whether Trooper DiNuzzo followed proper police procedure in his pursuit of the Plante car. Both experts were duly qualified, but their respective opinions were in conflict. The Court of Claims found Trooper DiNuzzo guilty of actionable negligence, and the high speed chase a proximate cause of the collision and the resulting injuries to claimants. However, its decision did not place any particular reliance on the expert's views. That of a State Police captain who taught pursuit driving at the State Police Academy was given detailed consideration without being permitted to control the outcome, while that of a former Syracuse police officer who was admittedly unfamiliar with State Police policies was not even mentioned. Instead, the Court of Claims rested its determination on three factors: the failure of the trooper to stop the Plante vehicle immediately rather than allow it to proceed for one and one-half miles while an accurate reading was obtained from tracking equipment, especially since the trooper well knew the Northway intersection was ahead; the failure of DiNuzzo or Sweeney to obtain the license number of the Plante vehicle may have necessitated the continuing pursuit; and the failure to discontinue the chase as both vehicles approached the vicinity of the Northway intersection. After a careful review of the record, we arrive at a different conclusion as to the liability of the State for this ill-fated accident.

The conduct of police officers while in pursuit of another vehicle is circumscribed by provisions of the Vehicle and Traffic Law (see Vehicle and Traffic Law, § 1104, subds. and by the particular departmental training that each receives. When the time arrives to examine the degree of competence and care exercised in the performance of their functions in cases such as this, the rule that must be followed--simple to state but often difficult to apply--is that the actions of the police officer are to be considered as of the time and under the circumstances in which they occurred, not by subsequent facts or...

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14 cases
  • Boyer v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1989
    ...in retrospect turns out to have been ill-advised may still have been reasonable under all the circumstances"); Simmen v. State, 81 A.D.2d 398, 400, 442 N.Y.S.2d 216, 218 (1981), affirmed, 55 N.Y.2d 924, 449 N.Y.S.2d 173, 434 N.E.2d 242 (1982) ("the actions of the police officer are to be co......
  • Richardson v. McGriff
    • United States
    • Maryland Court of Appeals
    • November 15, 2000
    ...retrospect turns out to have been ill-advised may still have been reasonable under all the circumstances'); Simmen v. State, 81 A.D.2d 398, 400, 442 N.Y.S.2d 216 (N.Y.App.Div.1981), affirmed, 55 N.Y.2d 924, 449 N.Y.S.2d 173, 434 N.E.2d 242 (1982) (`the actions of the police officer are to b......
  • Travis v. City of Mesquite
    • United States
    • Texas Supreme Court
    • May 20, 1992
    ...333, 610 P.2d 219, 220 (Ct.App.1980); Mitchell v. State, 108 A.D.2d 1033, 1034, 486 N.Y.S.2d 97, 99 (1985); Simmen v. State, 81 A.D.2d 398, 400, 442 N.Y.S.2d 216, 218 (1981); Stanton v. State, 29 A.D.2d 612, 612-14, 285 N.Y.S.2d 964, 967-69 (1967); Wrubel v. State, 11 Misc.2d 878, 879-81, 1......
  • Dent v. City of Dallas
    • United States
    • Texas Court of Appeals
    • November 20, 1986
    ...333, 610 P.2d 219, 220 (Ct.App.1980); Mitchell v. State, 108 A.D.2d 1033, 1034, 486 N.Y.S.2d 97, 99 (1985); Simmen v. State, 81 A.D.2d 398, 400, 442 N.Y.S.2d 216, 218 (1981); Stanton v. State, 29 A.D.2d 612, 612-14, 285 N.Y.S.2d 964, 967-69 (1967); Wrubel v. State, 11 Misc.2d 878, 879-81, 1......
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