The Rogak Report: 01 Feb 2005 ** Emergency Vehicles - Standard of Care **
- POLICE NOT LIABLE FOR INTERSECTION ACCIDENT WHILE RESPONDING TO
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.