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The Rogak Report: 02 August 2004 ** Emergency Vehicles **

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  • therogakreport
    COURT UPHOLDS JURY VERDICT WHICH FOUND THAT COP MOMENTARILY DISTRACTED BY SCREAMING PRISONER IN BACK SEAT WAS RECKLESS Ramirez v. Luna and City of New York,
    Message 1 of 1 , Aug 2, 2004
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      COURT UPHOLDS JURY VERDICT WHICH FOUND THAT COP MOMENTARILY
      DISTRACTED BY SCREAMING PRISONER IN BACK SEAT WAS "RECKLESS"

      Ramirez v. Luna and City of New York, 2004 WL 1372960 (App. Term 2d
      Dept 2004)

      How "bad" can a court decision get, even at the appellate level?
      Here is a good -- and thankfully rare -- example.

      A police officer was transporting a prisoner in the back of a patrol
      car who was apparently going through drug withdrawal symptoms. He was
      acting irrationally, kicking, screaming and insisting that he had
      to "throw-up." The officer became distracted by this prisoner, and
      collided with the rear of plaintiff's car. At the conclusion of the
      trial (Civil Court, Kings County), the jury found in favor of the
      plaintiff on the issue of liability and thereafter found damages in
      the total amount of $979,000 ($300,000 for past and pain and
      suffering and $679,000 for future pain and suffering).

      The relevant inquiry on appeal, as in all appeals of jury verdicts,
      is whether "there is simply no valid line of reasoning and
      permissible inferences which could possibly lead rational people to
      the conclusion reached by the jury on the basis of the evidence
      presented at trial." Based on this standard, held the majority of
      the Appellate Term, the verdict on liability must be upheld.

      Vehicle and Traffic Law ยง 1104, reciting the privileges afforded the
      driver of an authorized emergency vehicle, sets forth the standard of
      care which an emergency vehicle driver must adhere to as follows:
      "The 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." The trial court charged this statute to the
      jury. "Based on this stringent standard," held the Appellate
      Term, "and in light of the evidence introduced at the trial, the
      conclusion reached by the jury that the police officer acted with
      reckless disregard for the safety of others should be sustained."

      Comment: This decision begs the question -- does a cop's momentary
      distraction, due to a kicking, screaming prisoner in the back seat,
      amount to "reckless disregard'? Or is it just negligence? I have my
      own opinion, but fortunately one dissenting judge on the panel
      addressed the question, and came up with what in my opinion is the
      correct answer:

      "In the instant case a police officer was transporting a prisoner in
      the back of a patrol car who was apparently going through drug
      withdrawal symptoms. He was acting irrationally, kicking, screaming
      and insisting that he had to 'throw-up.' The officer became
      distracted by this prisoner, and collided with the rear of plaintiff-
      respondent's car. At the conclusion of the trial, the jury found in
      favor of the plaintiff on the issue of liability...."

      "A careful review of the evidence in the light most favorable to the
      plaintiff and the application of the law relating to this case,"
      continued the dissent, "establishes that there can be no valid line
      of reasoning or any permissible inference that would allow this jury
      to rationally reach the conclusion that they did. Therefore, as a
      matter of law, this verdict must be reversed and the complaint
      dismissed."

      The dissent continues, "Pursuant to sections 114-b and 1104 of the
      Vehicle and Traffic Law (VTL), the subject vehicle was clearly an
      emergency vehicle being involved in an emergency operation.
      An "emergency operation" as defined by section 114-b of the VTL is
      any authorized emergency vehicle that 'is engaged in transporting a
      sick or injured person...' Certainly, a police car that was
      transporting a prisoner in the throws of a drug withdrawal would
      constitute an emergency vehicle engaged in an emergency operation.
      Section 1104 of the VTL provides that the rules and regulations
      governing speed and movement do not apply, except that a driver shall
      not be protected from the 'consequences of his reckless disregard for
      the safety of others.'"

      The dissent goes on to say, "The question now facing this Court is
      whether any valid line of reasoning or permissible inference would
      allow a jury to rationally conclude that the defendant police officer
      acted with reckless disregard for the safety of others in causing
      this accident. I say 'No.' I do not believe that I am alone in this
      analysis. Let us look at how the Court of Appeals considered this
      issue."

      "In Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297 [1994] the
      Court of Appeals reversed the Appellate Division and granted the
      motion on behalf of the police officer for summary judgment
      dismissing the complaint. In that case, a police officer was in
      pursuit of a suspected lawbreaker (drunk driver) when that driver
      collided with the plaintiff's car."

      "The Court of Appeals, in a well reasoned opinion by Justice Titone,
      examined the decisions of the various judicial departments and noted
      that '... 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 ...
      Faced squarely with this question of statutory interpretation ... we
      hold that a police officer's conduct ... may not form the basis of
      civil liability ... unless the officer acted in reckless disregard
      for the safety of others'. Justice Titone went on to opine
      that 'This standard demands more than a showing of a lack of 'due
      care under the circumstances' ... It requires evidence that 'the
      actor has intentionally done an act of an unreasonable character in
      disregard of a known or obvious risk that was so great as to make it
      highly probable that harm would follow' and has done so with
      conscious indifference to the outcome.'"

      "Therefore, in order for a 'rational' jury to find liability as
      against the defendants herein, that jury had to find that the police
      officer, momentarily distracted by a kicking, screaming prisoner that
      was going through drug withdrawal, had intentionally acted
      unreasonably and in disregard of a known or obvious risk. In
      addition, they must also find that such action was so great as to
      make it highly probable that harm would follow and that the officer
      acted with a conscious indifference to that outcome. To make such a
      finding in relation to a police officer who become momentarily
      distracted by a prisoner who is kicking, screaming and threatening to
      throw-up, is patently absurd."

      "In the case before us," concluded the dissent, "I can find no
      rational view of the evidence submitted that would ascribe anything
      more than lack of due care (ordinary negligence) to the actions of
      the police officer, and accordingly, I would vote to set aside the
      verdict of liability and dismiss the complaint."

      Will this case go up on further appeal? It certainly seems like it
      should. A bad precedent like this, flying in the face of Court of
      Appeals rulings, should not be permitted to stand without a fight.
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