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The Rogak Report: 01 Feb 2005 ** Emergency Vehicles - Standard of Care **

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  • Lawrence Rogak
    POLICE NOT LIABLE FOR INTERSECTION ACCIDENT WHILE RESPONDING TO EMERGENCY CALL Badalamenti v. City of New York, NYLJ 2/01/05 (Supreme Court, Richmond County)
    Message 1 of 1 , Feb 1, 2005
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      Badalamenti v. City of New York, NYLJ 2/01/05 (Supreme Court,
      Richmond County) (MEGA, j)

      Plaintiff was injured on the night of September 22, 2000 when the
      vehicle which she was driving collided with a marked police vehicle
      being driven by Lieutenant Brian Hughes of the New York City Police
      Department, at the intersection of Clawson Street and Bryant Avenue
      in Staten Island, New York. Lt. Hughes was responding to an emergency
      at the time of the occurrence.

      Lt. Hughes drove his police SUV along Bryant Avenue with his turret
      lights on and sounding his siren intermittently. As he approached the
      stop sign at the intersection of Bryant and Clawson, Lt. Hughes
      admittedly did not come to a full stop, but rather reduced his speed
      before accelerating into the intersection. Plaintiff struck the cop
      broadside, just behind the driver's door, overturning his SUV as a
      result of the impact. The Lieutenant professed no estimate of
      plaintiff's speed, but testified that he was already in the
      intersection when he first observed plaintiff's vehicle, about 10 to
      20 feet away. He estimated his own speed at the point of impact as
      between 10 and 20 miles per hour. The Lieutenant also testified that
      his vision of oncoming traffic along Clawson Street, which is one-way
      approaching Bryant, had been partially obscured by a parked vehicle.

      Defendants moved for summary judgment. In opposition, plaintiff
      submitted her testimony that Lt. Hughes' vehicle "just shot right in
      front" of her. Plaintiff saw no emergency lights and heard no siren.
      She estimated her own speed at the point of impact as 15 mph and
      stated that the police vehicle was traveling "faster". Plaintiff also
      submitted the affidavit of a purported expert, a licensed private
      investigator and retired New York City Police Officer who had worked
      for 12 years on the department's "Accident Investigation Squad". Upon
      reviewing the accident report and the pertinent transcripts, this
      expert concluded that Lt. Hughes had "recklessly disregarded the
      applicable vehicle and traffic safety laws" by failing to stop at the
      stop sign while his view of traversing traffic was obscured by the
      parked vehicle, and that this omission was compounded by plaintiff's
      testimony regarding his alleged failure to use his turret lights and
      siren. The expert concluded, "based upon a reasonable degree of
      professional certainty, that Lieutenant Hughes's failure to stop at
      the stop sign, knowing that a parked truck obstructed his view of the
      traversing traffic which had the right of way, along with his failure
      to utilize his lights and siren, and his acceleration as he proceeded
      through the intersection despite his inability to see, rises to the
      level of reckless operation of a police emergency vehicle in that it
      clearly reflects a reckless disregard for the safety of others."

      The Court ruled, first, that "Lt. Hughes was driving an emergency
      vehicle and responding to a police dispatch at the time of the
      accident. As such, it is well settled that the Lieutenant enjoyed a
      qualified privilege under section 1104 of the Vehicle and Traffic Law
      which permitted him to disregard the ordinary rules of prudent and
      responsible driving. Under these circumstances, defendants may be
      required to respond in damages only if the lieutenant's conduct
      demonstrated a 'reckless disregard' for the safety of others, which
      is defined as the conscious or intentional "doing of an act of an
      unreasonable character in disregard of a known or obvious risk so
      great as to make it highly probable that harm would follow and done
      with conscious indifference to the outcome."

      "A momentary lapse in judgment is insufficient to establish the level
      of recklessness required to the driver of an emergency vehicle in
      order for liability to attach."

      "In this case, defendants have established as a matter of law that
      Lt. Hughes' conduct did not rise to the level of reckless disregard."

      "Contrary to plaintiff's or her expert's contention, Lt. Hughes'
      failure to come to a full stop prior to entering the intersection
      with his vision partially obscured does not, standing along, render
      his conduct reckless, even if (as plaintiff claims and the Lieutenant
      denies), his turret lights and siren were not in use. Also contrary
      to plaintiff's contention, section 1104 of the Vehicle and Traffic
      Law contains no provision excepting supervisory personnel responding
      to an emegency dispatch. Finally, any alleged failure on the part of
      Lt. Hughes to follow the general standards of care articulated in the
      NYPD 'Patrol Guide' would not furnish an independent basis for

      The Complaint was dismissed.
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