The Rogak Report: 02 August 2004 ** Emergency Vehicles **
- 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
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 § 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
"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
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
"In Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297  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.