Opinion
# 2012-018-313 Claim No. 114038 Motion No. M-80124
05-24-2012
SINNI v. STATE OF NEW YORK
Synopsis
Defendant's summary judgment motion is denied. The Correction Office did not engage in any privileged conduct leading up to the accident. Under these circumstances, the officer's conduct must be evaluated based upon the standards of ordinary care. Additionally, Defendant did not establish that the State's vehicle can be eliminated as a proximate cause of Decedent's injuries and death. It is clear that there are issues of fact as to what role the separate collisions with each van played in the death of the Decedent. Case information
UID: 2012-018-313 Claimant(s): LINDA SINNI, Individually and as Administratrix of the Estate of PAUL R. SINNI, Deceased Claimant short name: SINNI Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 114038 Motion number(s): M-80124 Cross-motion number (s): Judge: DIANE L. FITZPATRICK ALEXANDER & CATALANO, LLC Claimant's attorney: By: Timothy R. Mandronico, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Patricia M. Bordonaro, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: May 24, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion seeking a judgment dismissing the claim as a matter of law.
Claimant opposes the motion.
The claim arises from a four-vehicle accident that resulted in the death of Claimant's decedent on February 16, 2007 at approximately 4:00 p.m., on State Route 38 in the Town of Victory, Cayuga County. The facts surrounding the accident are not substantially in dispute. The weather that day was cold, but mostly sunny and clear. There was a steady wind out of the west of approximately 7-8 mph with gusts of 15 mph. Proceeding south on Route 38, there is a small hill just north of the accident scene which prevents a driver from having a full view of the roadway beyond. Near that hill, there were snowdrifts lining the roadway almost six-feet high. With the open fields along the roadway at this point, the wind caused the snow to blow creating near whiteout conditions. By all accounts, at the time of the accident the roadway at this point was heavily snow covered, with the banks of snow crowding the roadway and visibility reduced to almost zero during steady gusts of wind.
Claimant's decedent, Paul Sinni, drove his Ford pickup truck south and went off the road when he reached this hill. He became stuck in the snowbank along the west side of the roadway. Shortly after Mr. Sinni's truck became stuck, John Knopp came upon the scene driving a 2000 Jeep Grand Cherokee in a southerly direction, on his way home from Oswego to Pennsylvania. Mr. Knopp stopped his vehicle and Mr. Sinni asked him if he could help pull his truck out of the snowbank. Mr. Knopp agreed, turned around in a driveway, came back and parked behind Mr. Sinni's truck facing north (the opposite direction he and Mr. Sinni had been traveling). Mr. Sinni got between the two vehicles and hooked his vehicle to Mr. Knopp's. Another driver who stopped to help, Walter Forbes, was standing near Mr. Sinni at the time. Mr. Knopp started to drive forward. The chain Mr. Sinni used to hook the vehicles together came undone, so he tried to reconnect them. Around this same time, a blue New York State Corrections' van struck the right front corner of Mr. Knopp's vehicle on the passenger's side. The impact caused Mr. Knopp's vehicle to spin, coming to rest in the middle of the road, straddling the center line, facing west. Mr. Knopp then got out of his vehicle and called 911. Because Mr. Knopp was not familiar with the area, he handed his cell phone to the correction officer who was a passenger in the blue New York State van. Officer Ferrailoi gave directions to the 911 operator. When Officer Ferrailoi returned the phone to Mr. Knopp, someone yelled. Mr. Knopp turned and saw a vehicle coming toward him. It was a red 2001 Ford van being driven by Daniel Calhoun. As Mr. Knopp tried to get out of the way, his Jeep was hit by the red van. Mr. Knopp fell and the driver's side rear wheel-well struck his head. He did not see the impact, and when he got up, the red van was partly in the bed of Mr. Sinni's pickup truck. The Jeep had been pushed into the rear passenger side of the blue Corrections' van. Correction Officer Walczyk, who was driving the New York State van, testified he felt his vehicle being bumped and he heard, but did not see, the collision. He got out of the van and people were saying someone was hurt, so the two correction officers went over near the pickup truck and saw Decedent lying in a snowbank near the west side of his truck. The correction officers moved him to a flatter surface and began performing CPR.
Officer Walczyk testified that he was familiar with Route 38 at this location and often encountered bad weather. He had experienced snowstorms and whiteout conditions before in the area of the accident. However, on that particular day, it was a complete whiteout; there was more dense snow blowing off of the snowbank. He described it as a "sheet of snow."He first saw the "sheet of snow" approximately 50 to 100 yards north of it. At that time, he was traveling about 35 mph, and he slowed down to approximately 20 mph as he crested the hill. When he first started to go through the "sheet of snow" he saw the two vehicles, the pickup truck and a little in front of that, the Jeep. The vehicles were approximately 10 feet in front of him at that point. Officer Walczyk affirmatively testified that he first saw the back of the Jeep, which would place it facing south. Mr. Knopp, however, testified that his Jeep was in front of the pickup, but facing north - not south.
Defendant's Exhibit E, Walczyk deposition, page 10, line 5.
Officer Walczyk testified he hit his brakes but knew he could not avoid hitting the Jeep. At his deposition, he testified that he looked to see if there was anything he could see coming in the oncoming traffic lane. When he didn't see anything coming, he started turning his steering wheel to the left away from the Jeep. He testified that he never thought that he would encounter a vehicle stopped in his lane in the whiteout area, although he had seen cars pulled over to the side of the road in such conditions in the past.
Based upon his investigation, State Trooper Jason Mulcahy indicated that Decedent was struck by Mr. Knopp's vehicle when it was hit by the New York State Corrections' van. Mr. Knopp recalled that as his vehicle was rotating from that initial collision, he saw Decedent looking unsteady on his feet and then fall behind his pickup. This is confirmed by Mr. Forbes's testimony as well. After the second van collision, Decedent was found face-up in a snowbank on the west side of the roadway, behind his pick up truck. The van driven by Mr. Calhoun ended up in the bed of Decedent's pickup truck.
Claimant alleges Defendant was negligent in its hiring and training of employees, and that Correction Office Walczyk was negligent in his operation of the Corrections' van. Defendant argues that it is entitled to summary judgment on three grounds. First, that Officer Walczyk was faced with an emergency situation when he encountered Mr. Knopp's vehicle in his lane as he entered the whiteout conditions. Based upon the emergency doctrine, the actions Officer Walczyk took were reasonable under the circumstances, and prudent within the emergency situation with which he was faced and, therefore, cannot, as a matter of law, be the basis for a finding of liability against the State.
Secondly, Defendant argues that the Department of Corrections' van is an authorized emergency vehicle under § 114-b of the Vehicle and Traffic Law (VTL), and was involved in an emergency operation transporting a prisoner. Under VTL § 1104 (c), the driver of an emergency vehicle may disregard regulations governing directions of movement or turning in specified directions, and will not be found liable for injuries caused by such actions unless the driver's conduct is found to be in reckless disregard for the safety of others. Based upon the undisputed facts, Defendant argues that Officer Walczyk's actions did not evince a reckless disregard.
Finally, Defendant argues that there are no facts to support that the State's driver, Officer Walczyk's conduct was a proximate cause of the Decedent's injuries and death. The collision with the red van driven by Mr. Calhoun was, Defendant asserts, the proximate cause of Decedent's injuries.
Claimant, in opposition, presents the affirmation of her counsel and the affidavit of an expert Mechanical Engineer, Eugene R. Camerota, who has experience in automobile accident reconstruction. Mr. Camerota opines that since Officer Walczyk saw the heavy, blowing snow approximately 50 to 100 yards before he reached it, he had time to slow his vehicle even more than he did. He indicates that at 150 feet (50 yards), Officer Walczyk would have had three seconds to react, which was enough time to have slowed his vehicle sufficiently so that he could have avoided the Knopp vehicle. It is Mr. Camerota's opinion that Mr. Walczyk was traveling too fast for the conditions. He states that a driver entering into an area with limited sight distance should be driving slowly enough so that they can react to avoid any hazard.
Mr. Camerota had both Mr. Knopp and Officer Walczyk traveling in the opposite direction from which they were actually traveling, based upon their deposition testimony. He also indicated that Officer Walczyk's vehicle struck a "GMC Jimmy operated by Walter Forbes," however, it is unclear where he obtained this information since even Mr. Forbes in his deposition does not assert such a collision, and there is no indication that such a collision occurred in the police accident report. Since Mr. Camerota was not present at the time, his presentation of the positioning of the vehicles and the other collision are not persuasive. Moreover, it calls into question his opinion, particularly given that he has Officer Walczyk approaching from a different direction.
Claimant's counsel, relying on exhibits attached to Defendant's motion, argues that there are questions of fact as to whether Officer Walczyk's speed was appropriate for the near complete lack of visibility that he encountered that day due to the blowing snow. Counsel draws the Court's attention to the deposition transcripts of Walter Forbes and Betty Gilmore, who were in a Chevy Blazer that arrived at the location where Decedent's vehicle had become stuck in the snow right after Mr. Knopp had stopped his vehicle and agreed to help Decedent. They are the only two witnesses not directly involved in the accident present during the events leading up to the initial collision between the State vehicle driven by Officer Walczyk and the Knopp Jeep. Both Mr. Forbes and Ms. Gilmore testified that it appeared to them that Officer Walczyk's speed was too fast for the blinding conditions caused by the blowing snow that day and the accumulated snow on the roadway.
To be successful on a motion for summary judgment, the proponent must first present a prima facie showing of entitlement to judgment, as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once a prima facie showing has been made, the burden then shifts to the opposing party to produce proof in admissible form to establish material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
The Court has considered the depositionsand the sworn testimony offered by several witnesses at the Department of Motor Vehicle Hearing on November 14, 2007, held before Administrative Law Judge Joseph Matthewson Defendant's motion. The Court has not considered Defendant's Exhibits O through X, as they were not certified and are hearsay. The pictures in Exhibit V were not considered because they have not been authenticated and, therefore, would not be admissible. Claimant did not rely on these exhibits and has not waived evidentiary objections.
Exhibits E - N.
Exhibit N.
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Addressing Defendant's first argument: The common law emergency doctrine "'recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context,' provided the actor has not created the emergency." (Caristo v Sanzone, 96 NY2d 172, 174 [2001]). However, even a driver confronted with an emergency situation may be found liable where his or her reaction is found to be unreasonable or the driver engaged in tortious conduct that contributed to creating the emergency situation (Sossin v Lewis, 9 AD3d 849 [4th Dept 2004]). Here, it is undisputed that the unobstructed wind at the location of the accident was blowing the snow and creating complete whiteout conditions with near zero visibility. It is also clear that Mr. Knopp's Jeep was parked, at least partially, in Officer Walczyk's lane of travel at an angle to facilitate hitching to and pulling Decedent's vehicle. Because of the hill and the blowing snow, Mr. Knopp's vehicle, it seems, was completely obstructed from Officer Walczyk's view until he was 10 feet from the vehicle. The unexpected and sudden appearance of Mr. Knopp's Jeep in Officer Walczyk's traveling lane could be considered an emergency situation. Yet, it appears that there is an issue of fact whether Officer Walczyk was driving his vehicle too fast for the conditions. Although it is undisputed that he was only traveling about 20 mph, which under normal circumstances could be found as a matter of law to be reasonable, here, visibility was almost zero at times. Mr. Forbes indicated that it appeared to him that Officer Walczyk was traveling too fast, and Ms. Gilmore testified similarly. Mr. Forbes testified that he had traveled 5 mph to the location where Decedent's vehicle was struck, and he stopped his vehicle without a collision. Whether even 20 mph was too fast under the conditions that day, is a question of fact (see Phelps v Ranger, 87 AD3d 1387 [4th Dept 2011]).
Defendant also argues that Officer Walczyk's conduct must be considered under the reckless disregard standard in VTL § 1104(e). Vehicle and Traffic Law § 1104 permits a driver of an authorized emergency vehicle engaged in an emergency operation to be relieved from certain rules of the road. This privilege includes the right to stop, stand, or park in a manner otherwise prohibited by the VTL, to proceed past a steady red signal, flashing red signal or stop sign; to exceed the maximum speed limit; and to disregard regulations governing the direction of movement or turning in specified directions (VTL § 1104 [b] [1]-[4]). Except for authorized emergency vehicles operated as a police vehicle or bicycle, all other emergency vehicles must sound their audible signals and, if so equipped, display one red light (VTL § 1104 [c]). An authorized emergency vehicle includes a correction vehicle, and emergency operation includes transporting prisoners (VTL §§ 101 and 114-b). There is no indication that the Corrections' vehicle involved in this accident had an audible signal available or in operation or a red light. Nonetheless, two appellate courts have held that a prison vehicle transporting prisoners is a police vehicle for purposes of VTL § 1104, and is, therefore, exempt from the requirement that an audible signal must be sounded or a red light displayed in order to be held to the reckless disregard standard (see Church v City of New York, 268 AD2d 382, 383 [1st Dept 2000]; Klayman v City of New York, 130 AD2d 551 [2d Dept 1987], order amended 142 AD2d 668 [2d Dept 1988]).
The critical question then, for application of the reckless disregard standard, is whether the driver was engaged in the specific conduct exempted from the rules of the road by VTL § 1104 (b). Despite meeting the other requirements set forth in the statute, § 1104 (e) "does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b)" (Kabir v County of Monroe, 16 NY3d 217, 227 [2011]). The accident must have been caused by the exercise of one of the privileges identified by VTL § 1104 (b) (Id. at 226).
Defendant argues that Officer Walczyk was exercising one of the privileges enumerated in VTL § 1104 (b) when he turned the Corrections' van sharply to the left to avoid the Knopp vehicle in his lane, thereby disregarding the traffic regulations governing the direction of movement. The difficulty with Defendant's argument, after Kabir, is that the cause of the accident was not the officer turning the vehicle to the left or maneuvering to travel in the wrong lane of traffic. Rather, the accident was the result of Officer Walczyk being unable to move the Corrections' van into the opposite lane of travel soon enough. The majority of the Court of Appeals in Kabir was very clear that the privileged conduct must be the cause of the accident. Officer Walczyk did not engage in any privileged conduct leading up to the accident, it was solely an unsuccessful effort to avoid the accident. Under these circumstances, Officer Walczyk's conduct must be evaluated based upon the standards of ordinary care.
Defendant's final argument for summary judgment is that, as a matter of law, Claimant will be unable to establish it was Officer Walczyk's conduct that proximately caused Decedent's injuries and death. Yet, the testimony of Mr. Forbes indicates that it was the collision between the State's vehicle and the Knopp Jeep that caused the Jeep to strike Decedent clearly causing him some injuries. Both Mr. Knopp and Mr. Forbes saw Decedent fall to the ground after the Jeep hit him. Thus, Defendant has not established that the State's vehicle can be eliminated as a proximate cause of Decedent's injuries and death, and it is clear that there are issues of fact as to what role the separate collisions with each van played in Decedent's death.
Accordingly, based upon the foregoing Defendant's motion is DENIED.
May 24, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion. 2) Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General in support. 3) Defendant's Memorandum of Law dated July 13, 2011, in support, with exhibits attached thereto. 4) Affirmation of Timothy R. Mandronico, Esquire, in opposition. 5) Affidavit of Eugene R. Camerota, sworn to April 2, 2012, in opposition, with exhibit attached thereto. 6) Claimant's Memorandum of Law dated April 4, 2012. 7) Reply Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General in support.