Zulauf v. State, s. 62853

• Decision Date: 09 May 1983
• Docket Number: Nos. 62853,62900 and 63333,s. 62853
• Citation: 462 N.Y.S.2d 560,119 Misc.2d 135
• Parties: Valerie I. ZULAUF, as Administratrix of the Goods, Chattels, and Credits that were of William J. Peltier, Jr., Deceased, Claimant, v. The STATE of New York, Defendant. Alice L. SABIN, as Administratrix of the Goods, Chattels, and Credits that were of Blanche I. Peltier, Deceased, Claimant, v. The STATE of New York, Defendant. Ronald BARATIER and Helen Ouderkirk, as Co-Executors of the Estate of Louise C. Baratier, Deceased, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 560

462 N.Y.S.2d 560

119 Misc.2d 135

Valerie I. ZULAUF, as Administratrix of the Goods, Chattels, and Credits that were of William J. Peltier, Jr., Deceased, Claimant, v. The STATE of New York, Defendant.

Alice L. SABIN, as Administratrix of the Goods, Chattels, and Credits that were of Blanche I. Peltier, Deceased, Claimant, v. The STATE of New York, Defendant.

Ronald BARATIER and Helen Ouderkirk, as Co-Executors of the Estate of Louise C. Baratier, Deceased, Claimant, v. The STATE of New York, Defendant.

Claim Nos. 62853, 62900 and 63333.

Court of Claims.

May 9, 1983.

Robert W. Hartnett, Syracuse, for claimants Zulauf & Sabin.

Leonard H. Amdursky, Oswego, for Claimant Baratier.

Robert Abrams, Atty. Gen., State of New York, for defendant; Coulter, Fraser, Ames, Bolton, Bird & Ventre, Syracuse, Robert Coulter, of counsel.

THOMAS J. LOWERY, Jr., Judge.

At about 9:00 p.m. on October 11, 1978, Louise Baratier, Blanche Peltier and William Peltier, Jr., were killed instantly when their vehicle was struck during a high speed police chase. Damages are sought for their wrongful deaths. The trial was bifurcated and limited to the issue of the State's liability.

The accident occurred at a train crossing on LaCasse Road in the Town of Mexico, Oswego County, New York. At the time, the decedents' vehicle was stopped on the west side of the tracks waiting for a southbound freight train to pass. It was dusk, and the weather that evening was clear.

The railroad crossing was at grade with LaCasse Road, a narrow, rural, town road. A hill immediately to the west of the crossing obscured its presence for eastbound motorists. Motor vehicle traffic was controlled by means of a railroad flashing signal located adjacent to the crossing. In addition, a pair of railroad crossing signs were posted west of the tracks.

Trooper Lance Stowell was on motor patrol duty the evening of the accident. Shortly before 9:00 p.m., while patrolling State Route 58 in the vicinity of LaCasse Road, he observed two oncoming vehicles ¹ being operated at what he believed to be an excessive rate of speed. Deciding to give chase, he turned his patrol car around, activated his roof flasher light, and headed off in pursuit of the vehicles.

The drivers of the fleeing vehicles ignored the trooper's signal and made no attempt to stop. After proceeding a short distance, they turned off State Route 58 onto LaCasse Road and continued in an easterly direction to the point where the accident occurred. Trooper Stowell followed in hot pursuit ² at speeds that reached 60 to 80 miles per hour. ³ In all, the chase covered a distance of approximately three miles and took less than five minutes.

Next we turn to a determination of the exact manner in which the accidentoccurred. ⁴ In this regard, the proof established that as the vehicles approached the crest of the hill that led to the tracks, the first vehicle was 1200 to 1500 feet ahead of the second vehicle. The trooper's vehicle followed, some 500 to 600 feet behind, and was overtaking the second vehicle. As the first vehicle crested the hill, the driver saw the train and swerved to the left. His vehicle crashed into the train and came to rest along the left side of the road. At no time did he impact the decedents' vehicle. Seconds later, the second vehicle crested the hill and continued straight into the rear of the decedents' vehicle. Immediately thereafter, the trooper's vehicle came over the hill. It struck the train, exploded, and bounded onto the decedents' vehicle and then slid down the left side where it came to rest. All three vehicles were thereafter enveloped in flames.

The claimants, contending that Trooper Stowell was negligent in the performance of his duties, seek to hold the State liable for the happening of the accident and the resulting deaths. ⁵

The conduct of police officers in pursuit of an actual or suspected violator of the law is circumscribed by section 1104 of the Vehicle and Traffic Law and by the particular departmental training that each officer receives. (Simmen v. State of New York, 81 A.D.2d 398, 442 N.Y.S.2d 216, affd. 55 N.Y.2d 924, 449 N.Y.S.2d 173, 434 N.E.2d 242.)

In the present case, no proof was submitted as to the training received by Trooper Stowell with respect to the procedures to be employed while pursuing a vehicle. This omission can be attributed to the State's position that no pursuit was in progress at the time of the accident. Absent such evidence, we have been deprived of a possible standard by which Trooper Stowell's conduct could be evaluated.

Insofar as the statute is concerned, it grants to the officer the right to disregard various traffic regulations and maximum speed limits. (See Vehicle & Traffic Law, § 1104, subd. [b].) These privileges, however, do not relieve him from the duty to "drive with due regard for the safety of all persons", nor do they protect him from "the consequences of his reckless disregard for the safety of others." (Vehicle & Traffic Law, § 1104, subd. [e].) This has been interpreted to mean that the immunity accorded can only be denied where there is evidence of an exercise of these privileges in excess of reasonableness under the circumstances. (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; 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.) In determining whether the officer has exceeded reasonableness, his actions are to be considered as of the time and under the circumstances in which they occurred and not by subsequent facts or in retrospect. (Simmen v. State of New York, 81 A.D.2d 398, 442 N.Y.S.2d 216, affd. 55 N.Y.2d 924, 449 N.Y.S.2d 173, 434 N.E.2d 242, supra; Selkowitz v. County of Nassau, 58 A.D.2d 888, 396 N.Y.S.2d 885, affd. 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140; 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, supra.)

When considering Trooper Stowell's conduct in light of the statute, we find that he failed to exercise his best judgment under the circumstances and displayed a lack of due regard for the safety of others. Despite the fact that his view of the railroad crossing was obscured, he is charged with knowledge of its presence. He is bound to see what by the use of his senses he might have seen. (Weigand v. United Traction Co., 221 N.Y. 39, 116 N.E. 345.) In this regard, the warning signs were more than sufficient to alert him of the presence of the crossing. Under these circumstances, a reasonable and prudent police officer would have reduced his speed, for it was clearly foreseeable that a train might be passing, in which event, he would be required to bring his vehicle to a safe stop. Trooper Stowell, however, not only failed to reduce his speed, but accelerated his vehicle in an attempt to close the gap between himself and the fleeing vehicle ahead. Hence, his conduct constituted a negligent discharge of his duties.

An argument may be made that section 1104 of the Vehicle and Traffic Law has no applicability, in that the privileges conferred therein do not extend to railroad grade crossings and do not entitle emergency vehicles to violate section 1170 ⁶ or 1180 (subd. [e] ) ⁷ of the Vehicle and Traffic Law. (cf. Siivonen v. City of Oneida, 33 A.D.2d 934, 306 N.Y.S.2d 278.) This being the case, the ordinary rules of negligence would apply and we would find that Trooper Stowell was negligent in the operation of his vehicle.

We turn now to the question of whether Trooper Stowell's negligent conduct was a substantial factor in...