Kabir v. County of Monroe

945 N.E.2d 461, 16 N.Y.3d 217

• Court: New York Court of Appeals
• Decided: February 17, 2011
• Status: Published

Opinions

OPINION OF THE COURT

Read, J.

On this appeal, we hold that the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

I.

At 3:57 p.m. on September 20, 2004, defendant John DiDomenico, a road patrol deputy in the Monroe County Sheriffs Office, was on routine patrol in a marked police vehicle when he received a radio dispatch from the Office of Emergency Communications dispatch or “911 center” directing him to respond to a stolen vehicle report at an address in Henrietta, New York. At the time, he was heading south on West Henrietta Road, nearing a traffic light at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, which marks the border between the Towns of Brighton (on the north side) and Henrietta (on the south side).

DiDomenico soon received a second radio dispatch, which requested backup for another officer who was responding to a burglary alarm at a location in Henrietta. Because the 911 center categorized the burglary alarm as “classification one”— meaning “a serious call . . . that . . . needs immediate attention”—the deputy acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report, which was assigned a higher classification and therefore a lower priority. At 4:02 p.m., the dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy’s vehicle.

DiDomenico did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40-mile-per-hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch. The deputy explained that he was not familiar with the location of the burglary alarm, and “due to the amount of traffic during that time of day, [he] didn’t want to initiate any emergency equipment without knowing where [he] was positively going.” He therefore touched the terminal and “looked down for two to three seconds” at the display “to view [the names of] the cross streets.” When the deputy lifted his gaze, he realized that “traffic had slowed.” Although he immediately applied his brakes, he was unable to stop before rear-ending the vehicle in front of him, which was driven by plaintiff Yasmin Kabir.

There are three southbound lanes—two through lanes and a lefthand-turn lane—at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road. Kabir testified that she was traveling in the left travel lane. She had stopped for a red traffic light, and was just beginning to move forward slowly toward the congested intersection when her car was hit.

In October 2005 and February 2006 Kabir brought actions, subsequently consolidated, against Monroe County, DiDomenico and others, alleging serious injury under New York’s No-Fault Law. In May 2008, defendants moved for summary judgment to dismiss the complaints, and in July 2008, Kabir cross-moved for partial summary judgment on liability. The parties disputed whether Vehicle and Traffic Law § 1104 applied, making DiDomenico liable for the accident only if he acted with “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]; see also Saarinen v Kerr, 84 NY2d 494 [1994] [holding that the standard of care under Vehicle and Traffic Law § 1104 is reckless disregard and addressing the conduct required to show recklessness]). On September 26, 2008, Supreme Court awarded summary judgment to defendants (21 Misc 3d 1107[A], 2008 NY Slip Op 52000[U] [Sup Ct, Monroe County 2008]).¹ The court concluded that DiDomenico’s conduct was covered by section 1104, and that Kabir had not raised a triable issue of fact as to whether he acted with reckless disregard.

On December 30, 2009, the Appellate Division reversed, with two Justices dissenting (68 AD3d 1628 [4th Dept 2009]). The majority held that the reckless disregard standard in section 1104 (e) is limited to accidents caused by conduct privileged under section 1104 (b). Because DiDomenico’s injury-causing conduct was not exempt under this provision, the majority concluded that “the applicable standard for determining liability [was] the standard of ordinary negligence” (id. at 1633). The court further observed that “a rear-end collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle”; therefore, “partial summary judgment on liability in favor of the person whose vehicle was rear-ended is appropriate in the absence of a nonnegligent explanation for the accident” (id.). Concluding that Kabir had met her burden on the cross motion and that defendants had not put forward a nonnegligent explanation, the court reinstated the complaint against defendants and granted Kabir’s cross motion for partial summary judgment on liability.² The dissent interpreted section 1104 differently, taking the position that the reckless disregard standard was applicable to any injury-causing conduct of a driver of an emergency vehicle involved in an emergency operation. On March 19, 2010, the Appellate Division granted defendants leave to appeal, and certified to us the question of whether its order was properly made (71 AD3d 1548 [4th Dept 2010]). We now affirm and therefore answer the certified question in the affirmative.

II.

Section 1104 was put in place in 1957 as part of what is now title VII of the Vehicle and Traffic Law, which was intended to “creat[e] a uniform set of traffic regulations, or the ‘rules of the road’ ... to update and replace the former traffic regulations, and bring them into conformance with the Uniform Vehicle Code adopted in other states” (Riley v County of Broome, 95 NY2d 455, 462 [2000] [citations omitted]; see also L 1957, ch 698). Subdivision (a) of this provision empowers the driver of an “authorized emergency vehicle” (defined in Vehicle and Traffic Law § 101)³ when involved in an “emergency operation” (defined in Vehicle and Traffic Law § 114-b)⁴ to “exercise the privileges set forth in this section [1104], but subject to the conditions herein stated” (emphases added]). The statute then lists these privileges in subdivision (b):

“1. Stop, stand or park irrespective of the provisions of this title [VII];

“2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

“3. Exceed the maximum speed limits so long as he does not endanger life or property;

“4. Disregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104 [b]).

The privileges correspond generally with articles in title VII of the Vehicle and Traffic Law, entitled “Rules of the Road” (see arts 32 [“Stopping, Standing, and Parking”], 29 [“Special Stops Required”], 24 [“Traffic Signs, Signals and Markings”], 30 [“Speed Restrictions”], 25 [“Driving on Right Side of Roadway, Overtaking and Passing, Etc.”], 26 [“Right of Way”], 28 [“Turning and Starting and Signals on Stopping and Turning”]).

Subdivision (c) of section 1104 sets out prerequisites or conditions upon the exercise of the privileges listed in subdivision (b): except in the case of police vehicles or bicycles “the exemptions herein granted” are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals.

Finally, subdivision (e) of section 1104 specifies that “[t]he 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” (emphasis added). Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “[t]he foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have ‘ ‘interpret[ed] Vehicle and Traffic Law § 1104 (e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others’ ” (dissenting op at 236-237). The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “[t]he foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

Further, the dissent opines that the “evident intent” of the reference to “foregoing provisions” in Vehicle and Traffic Law § 1104 (e) “was to ensure that the creation of the privileges earlier in the statute would not be misinterpreted as precluding an emergency responder from being held accountable when he or she caused an accident while engaged in privileged conduct” (dissenting op at 237). Thus, such emergency responder “cannot receive a traffic citation” for conduct enumerated under section 1104 (b) (id. at 232); and “the fact that a driver failed to conform to a traffic law” would not “constitute prima facie evidence of negligence,” or “be viewed as recklessness per se” (id. at 237-238). Assuming this interpretation of the interplay between subdivisions (b) and (e) is correct, it does not follow that section 1104 (e) creates a reckless disregard standard of care for unprivileged conduct. Indeed, the logical implication of the dissent’s reading of section 1104 is that the standard of care for all emergency driving—even if privileged under subdivision (b)—is negligence.⁵

The Legislature certainly knew how to create the safe harbor from ordinary negligence envisioned by defendants and the dissent. For example, the Legislature might simply have structured section 1104 (a) and (b) along the lines of section 1103 (b). As originally adopted in 1957, this provision stated in relevant part that

“[ujnless specifically made applicable, the provisions of this title [VII] shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway . . . but shall apply to such persons and vehicles when traveling to or from such work” (former Vehicle and Traffic Law § 1103 [b] [emphasis added]).

Thus, rather than taking the approach of section 1104 (a) and (b)—excusing the driver of an authorized emergency vehicle from complying with certain rules of the road when involved in an emergency operation—the Legislature in section 1103 (b) exempted “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” from all the rules of the road, subject to any statutory exceptions. Subsequently, the Legislature “soften[ed] the outright exemption” in section 1103 (b) by adding the due regard/reckless disregard language of section 1104 (e) (Riley, 95 NY2d at 465; see also L 1974, ch 223). In addition, in 1987 the Legislature created a statutory exception, making “specifically . . . applicable” those provisions in title VII regarding driving under the influence of drugs or alcohol (L 1987, ch 528).⁶

Legislative history further supports the view that the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) is limited to accidents or incidents caused by exercise of a privilege identified in Vehicle and Traffic Law § 1104 (b). In its 1954 report, the New York State Joint Legislative Committee on Motor Vehicle Problems described section 114 of its proposed text— adopted by the Legislature in 1957 as Vehicle and Traffic Law § 1104 with minor, nonsubstantive changes (see L 1957, ch 698), and current Vehicle and Traffic Law § 1104 (a), (b), (c) and (e)⁷— as follows:

“Section 114 lists certain privileges accorded drivers of authorized emergency vehicles when responding to an emergency call or when in pursuit of an actual or suspected violator of the law. They may park in prohibited places, pass stop signs or signals, exceed speed limits and disregard turning restrictions, but in all cases only with due regard for the safety of others. The special privileges are granted, except in the case of police vehicles, only when the driver . . . is giving such audible signal as may be reasonably necessary and when his vehicle is displaying the proper warning lights” (1954 NY Legis Doc No. 36, at 35 [emphases added]).

Further,

“Section 114 [i.e., section 1104] is divided into four subsections. Subsection (a) [i.e., section 1104 (a)] states when, and under what circumstances, the driver of an authorized emergency vehicle may exercise the special privileges conferred by subdivision (b) . . .

“Subsection (b) [i.e., section 1104 (b)] sets forth four immunities which are granted to emergency vehicles when they satisfy all the other prerequisites of section 114 . . .

“[T]hese privileges are conditioned [in subsection (c); i.e., section 1104 (c)] upon proper identification of the emergency vehicle so that motorists will have sufficient warning of their approach. The exemption given to police vehicles is required because they may need to approach suspected criminals without giving advance notice. . . .

“Finally, subsection (d) [i.e., section 1104 (e)] again repeats the caveat of paragraph (b) of section 224[⁸] by requiring safe driving from the drivers of emergency vehicles under all circumstances. It makes it clear that the exemptions shall not be construed to relieve a driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall the grant of these privileges protect the driver from the consequences of his reckless disregard for the safety of others” (id. at 36-37 [emphases added]).

This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).

Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly Saarinen and Szczerbiak v Pilat (90 NY2d 553 [1997]), we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104 (b).⁹ Amicus curiae New York State Division of State Police, for example, argues that “[w]hile the facts of [Saarinen] involved a police officer who exceeded the speed limit during a chase . . . [the] Court’s holding was broad and unambiguous,” quoting the following passage:

“Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer’s conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others” (Saarinen, 84 NY2d at 501 [emphasis added]).

Whether the police officer in Saarinen was entitled to have his actions judged by the standard of care in section 1104 (e) was not at issue, as the Division acknowledges. The dispute was over what that standard entailed. Thus, in the paragraph preceding the quoted language, we explained that “[b]ecause the statute makes reference to both ‘due regard’ and ‘reckless disregard’ for the safety of others, 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” (id. at 500). We observed that some New York courts had settled on “recklessness” as the standard, while others adopted “ ‘unreasonable under the circumstances’ . . . and 'negligen[ce]’ . . . , either alone or interchangeably with ‘recklessness,’ to describe the level of culpability that will support liability under Vehicle and Traffic Law § 1104 (e)” (id. [citations omitted]). The “question of statutory interpretation” that we referred to in the language cited by the State Police was therefore the nature of the standard of care established by section 1104 (e) in a situation where the police officer was clearly entitled to its benefit.

And notwithstanding arguments made to the contrary, dicta in Saarinen undercut, rather than support, defendants’ view of section 1104. For example, the very first paragraph of the opinion includes the following language:

“Vehicle and Traffic Law § 1104 . . . qualifiedly exempts [drivers of authorized emergency vehicles] from certain traffic laws when they are ‘involved in an emergency operation.’ At issue in this appeal are the meaning and effect of the statute’s provisions for civil liability in the event of an accident. Consistent with its language and purpose, we hold that Vehicle and Traffic Law § 1104 (e) precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness” (id. at 497 [citation omitted and emphases added]).¹⁰

Importantly, we later noted that “[t]he touchstone of our analysis” in Saarinen was Vehicle and Traffic Law § 1104

“which permits the driver of an ‘authorized emergency vehicle’ to proceed past red traffic lights and stop signs, exceed the speed limit and disregard regulations regarding the direction of traffic, as long as certain safety precautions are observed. The privileges afforded by the statute are circumscribed by section 1104 (e) . . . [which] establishes the standard for determining an officer’s civil liability for damages resulting from the privileged operation of an emergency vehicle” (84 NY2d at 499-500 [citations and internal quotation marks omitted; emphases added]).

In Szczerbiak, a case that went to trial about six weeks after we handed down our decision in Saarinen, the sole question on appeal was “whether [the police officer’s] conduct in driving the automobile rose to the level of ‘reckless disregard’ for the safety of others required by Vehicle and Traffic Law § 1104 (e)” (Szczerbiak, 90 NY2d at 555). The accident at issue was arguably caused by the police officer’s failure to keep a proper lookout: just as he took his eyes off the road to activate his emergency lights and siren, the officer hit and killed a 16-year-old pedestrian/bicyclist. As a result, the plaintiffs in Szczerbiak might have contended that the officer’s conduct was not to be evaluated under the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) because the fatality did not result from his exercise of a privilege granted by section 1104 (b). But they never made this argument and we therefore did not decide this issue; we merely remarked that even if the officer “were negligent in glancing down, this ‘momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” (90 NY2d at 557).

Finally, the dissent devotes several pages to a discussion of the many supposed “practical problems” presented by our interpretation of the statute (dissenting op at 240-242). Simply put, section 1104 (e) establishes a reckless disregard standard of care “for determining . . . civil liability for damages resulting from the privileged operation of an emergency vehicle” (Saarinen, 84 NY2d at 500); if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104 (b), the standard of care for determining civil liability is ordinary negligence.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

1 . At that point, the defendants remaining in the action were the County, DiDomenico and Monroe County Sheriff Patrick M. O’Flynn.

2 . We note that Kabir must still prove that she sustained a “serious injury” within the meaning of New York’s No-Fault Law in order to recover damages from defendants for her alleged personal injuries (see Insurance Law § 5104 [a]). The dissent takes us to task for supposedly “transform[ing DiDomenico’s momentary glance] into a basis for driver liability as a matter of law” (dissenting op at 236 n 1). As explained in the text, after determining that section 1104 was inapplicable, the Appellate Division granted plaintiffs cross motion because defendants did not offer a nonnegligent explanation to rebut the prima facie case of negligence made out by the happening of a rear-end collision. On appeal, defendants did not challenge the Appellate Division’s decision on that score.

3 . Vehicle and Traffic Law § 101 defines an “Authorized emergency vehicle” to include “[e]very . . . police vehicle”; and for purposes of section 101, a “[p]olice vehicle” includes a vehicle “operated by ... a sheriff, undersheriff or regular deputy sheriff’ (Vehicle and Traffic Law § 132-a).

4 . An “[e]mergency operation” includes “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is engaged in . . . responding to . . . [a] police call” (Vehicle and Traffic Law § 114-b).

5 . This is exactly what the majority of states have decided, contrary to our decision in Saarinen (see e.g. Tetro v Town of Stratford, 189 Conn 601, 609, 458 A2d 5, 9 [1983] [“(E)mergency vehicle legislation provides only limited shelter from liability for negligence. The effect of the statute is merely to displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules. The statute does not relieve operators of emergency vehicles from their general duty to exercise due care for the safety of others” (emphasis added)]; City of Little Rock v Weber, 298 Ark 382, 389, 767 SW2d 529, 533 [1989] [the “driver of an emergency vehicle is held to a standard of ordinary care in the exercise of (the) statutory privileges”]; Barnes v Toppin, 482 A2d 749, 755 [Del 1984] [if police officer “was found,to be excused from obeying the speed limit” under the statute, he was still required “to drive with due regard for the safety of all persons” and thus was “governed by the usual rules of negligence” (internal quotation marks omitted)]; Lee v City of Omaha, 209 Neb 345, 307 NW2d 800 [1981]; Rutherford v State, 605 P2d 16 [Alaska 1979]; Doran v City of Madison, 519 So 2d 1308 [Ala 1988]).

6 . This exception to the exemption granted by section 1103 (b) was intended to allow highway workers to be prosecuted if they operated vehicles while in an intoxicated or impaired condition (see Mem in Support, Bill Jacket, L 1987, ch 528, at 6 [“(a)lthough present (s)ection 1103 (b) does not relieve (highway workers exempted) from the provisions of (t)itle VII . . . from the duty to proceed with due regard for the safety of all persons and from the consequences of their reckless disregard of the safety of others, this provision is applicable only with respect to civil actions against the operators or their employers and not to the accountability of the operator under the Vehicle and Traffic Law”]; see also Letter of Michael Colodner, Unified Court System, to Evan A. Davis, Counsel to the Governor, July 9, 1987, Bill Jacket, L 1987, ch 528, at 20 [noting that “(u)nder current law, highway work crews are exempt from prosecution for reckless driving or for driving while intoxicated”]). Under our view of section 1104, intoxicated or impaired emergency vehicle operators involved in an accident when engaged in an emergency operation would be subject to prosecution and to civil liability for ordinary negligence.

7 . Section 1104 (d) was identical to the Committee’s proposed section 114 (d). The wording of subdivision (d) has never changed, although it was relettered subdivision (e) in 1968 when a new subdivision (d) was added to the statute (L 1968, ch 336).

8 . Section 224 set out the rules governing ordinary vehicles when an authorized emergency vehicle approaches in performance of emergency duties. Paragraph (b) provided that “[t]his section [224 would] not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.” Vehicle and Traffic Law § 1144, entitled “Operation of vehicles on approach of authorized emergency vehicles,” originally included the same language (see L 1957, ch 698). In 1960, section 1144 (b) was amended slightly to substitute “reasonable care for” for “due regard for the safety of’ (see L 1960, ch 300, § 48).

9 . The dissent likewise suggests that since our decision in Saarinen, section 1104 (e) has been universally understood in this way. The fact is, though, that in the majority of cases implicating section 1104, the conduct allegedly causing the accident is, in fact, listed in subdivision (b). For example, the dissent cites Herod v Mele (62 AD3d 1269, 1270 [4th Dept 2009]), decided by the Fourth Department seven months before its decision in Kabir, to support the thesis that our interpretation (and the Fourth Department’s) in this case is novel. The issue on this appeal did not arise in Herod, however, because there the deputy was “exceeding the posted speed limit at the time of the collision” (id. at 1270). The same is true of Gonyea v County of Saratoga (23 AD3d 790 [3d Dept 2005]), also cited by the dissent. In Gonyea, a deputy responding to a two-car accident parked her vehicle such that it protruded into the travel lane of the roadway by about 18 inches, allegedly causing a motorist to swerve and hit a motorcyclist traveling in the opposite lane. The third case mentioned by the dissent—Rodriguez v Incorporated Vil. of Freeport (21 AD3d 1024 [2d Dept 2005])—is a memorandum decision with few facts where the parties evidently focused on whether the police officer was engaged in an “emergency operation” at the time of the accident, which occurred while she was parking her patrol car.

10 . Similar descriptions of section 1104 appear in dicta in other cases (see e.g. Gonzalez v Iocovello, 93 NY2d 539, 551 [1999] [“Vehicle and Traffic Law § 1104 excuses the violation of certain traffic laws by authorized vehicles involved in an emergency operation” (emphasis added)]; Criscione v City of New York, 97 NY2d 152, 156 [2001] [“(T)he driver of an ‘authorized emergency vehicle’ engaged in an ‘emergency operation’ is exempt from certain ‘rules of the road’ under Vehicle and Traffic Law § 1104” (citing Riley, 95 NY2d at 462 [emphasis added])]; Williams v City of New York, 2 NY3d 352, 364 [2004] [section 1104 “creates a privilege exempting drivers of authorized emergency vehicles from certain provisions in the Vehicle and Traffic Law” (emphases added)]; Ayers v O’Brien, 13 NY3d 456, 457 [2009] [“Operators of authorized emergency vehicles are protected from liability for conduct privileged under Vehicle and Traffic Law § 1104, unless their conduct rises to the level of reckless disregard” (emphasis added)]).