Opinion
# 2017-053-560 Claim No. 126032 Motion No. M-89967
09-29-2017
RACHEL BARLOW v. STATE OF NEW YORK AND NEW YORK STATE THRUWAY AUTHORITY
GIBSON, McASKILL & CROSBY, LLP BY: Charles S. Desmond, II Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Defendants' motion for summary judgment to dismiss claim for personal injuries that resulted from a collision between claimant's motor vehicle and a snowplow owned and operated by the NYS Thruway Authority is granted. Court finds Vehicle and Traffic Law 1103 (b) applies to facts of claim, that the NYS Thruway Authority met its burden to prove that the snowplow operator did not act with reckless disregard for the safety of others and claimant failed to raise a material issue of fact. No evidence was presented by claimant as to involvement of the State of New York and as a result, summary judgment is also granted to this claimant.
Case information
| UID: | 2017-053-560 |
| Claimant(s): | RACHEL BARLOW |
| Claimant short name: | BARLOW |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK AND NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126032 |
| Motion number(s): | M-89967 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | GIBSON, McASKILL & CROSBY, LLP BY: Charles S. Desmond, II Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claim no. 126032 involves a motor vehicle accident which occurred on February 15, 2015, when a motor vehicle owned and operated by claimant Rachel Barlow collided with a snowplow registered to the New York State Thruway Authority (NYSTA) and driven by Thruway Maintenance Worker Brett P. Churchill. Defendants move for summary judgment. Claimant opposes the motion.
Police Accident Report (Claimant's Exhibit C). The verified claim incorrectly lists the date of the accident as February 2, 2015.
FACTUAL BACKGROUND
According to the Police Accident report, the accident occurred at approximately 11:55 p.m. on Sunday, February 15, 2015. At that time, claimant Rachel A. Barlow was driving a 2007 Chevrolet Cobalt. The snowplow operator, Brett P. Churchill, was operating a 2004 International plow truck registered to the NYSTA and designated as "NY Thruway authority vehicle #4980."
Police Accident Report (Claimant's Exhibit C).
Claimant Rachel Barlow testified at her deposition that she left her boyfriend's house in Niagara Falls, New York around 11:40 p.m., and was heading to her mother's home in Cheektowaga, New York. She crossed over the Grand Island bridges and was heading toward the I-190 south. According to claimant's deposition testimony, she was driving in the middle lane and as she approached the area where the road splits for I-290 and I-190, a snowplow in the far right lane moved over into the middle lane, clipped the front of her car and pushed her across the left lane into the median barrier. Prior to the accident, claimant testified that she and the snowplow were driving side by side most of the time, with the snowplow being a little bit ahead of her. Claimant testified that she didn't see any flashing lights or an illuminated arrow on the rear of the snowplow, but did observe driving and rear lights on the snowplow. The highway was illuminated with lights. Claimant first observed the snowplow ahead of her as she exited the Grand Island bridge, "like through the toll." and the snowplow was moving when she first saw it. Before the accident, claimant testified that she had been driving next to but slightly behind the snowplow. Claimant testified that she was driving at 50 mph. She did not have time to brake before impact. Claimant testified that it was not snowing at the time of the accident but that there was snow on the ground and it was freezing. According to claimant's testimony, the middle of the back of the snowplow came into contact with the right front of her vehicle. She testified that the plow was up. As a result of the collision, the front end of claimant's vehicle struck the median and was totaled.
Claimant's deposition, pgs. 11-12 (Claimant's Exhibit A).
Claimant's deposition, pgs. 13-14 (Claimant's Exhibit A).
Claimant's deposition, pgs. 14-16 and 31-35 (Claimant's Exhibit A).
Claimant's deposition, p. 38 (Claimant's Exhibit A).
Claimant's deposition, pgs. 14-17 and 22 (Claimant's Exhibit A).
Claimant's deposition, pgs. 24-25 (Claimant's Exhibit A).
Claimant's deposition, p. 13 (Claimant's Exhibit A).
Claimant's deposition, pgs. 25-26 (Claimant's Exhibit A).
Claimant's deposition, p. 34 (Claimant's Exhibit A).
Claimant's deposition, pgs. 38-39 (Claimant's Exhibit A).
The driver of the snowplow, Brett Churchill, was employed by the NYSTA as a thruway maintenance worker on February 15, 2015. According to his deposition testimony, Mr. Churchill reported to work on the day of the accident at 10:30 p.m. He was assigned a 2004 International snowplow designated as snowplow number 4980. Churchill testified that the route he was assigned to drive was the main lines, which consisted of the driving lane, the center lane if there was one, and the passing lane. His route extended from mile post 14 to mile post 6 on the I-190. Mile post 6 is Niagara Street in the city of Buffalo and mile post 14 is the South Grand Island bridge in Tonawanda, New York. Before the accident, Mr. Churchill testified that he had completed one run of his plow route and had made a U-turn before the south Grand Island bridge tolls. He first observed claimant's vehicle coming down the bridge behind him as he was in the passing lane with his front plow down, clearing snow. According to his deposition testimony, he saw the claimant's vehicle coming and wondered when she was going to move over, but that she never did. Churchill testified that claimant's vehicle struck the spinner on the back of the hopper on the rear of his snowplow while he was plowing snow in the left or passing lane.
Churchill deposition, pgs. 5-6 and 11 (Claimant's Exhibit B).
Churchill deposition, pgs. 11-15 (Claimant's Exhibit B).
Mr. Churchill testified at his deposition that the roadway in the area where the accident occurred had three lanes: a passing lane; a driving lane; and the far right lane which was a ramp for access to Route 290. According to Mr. Churchill, his snowplow had Mars lights, flashers, arrow board, pointing right, two flashers towards the top of the rear of the snowplow, running lights, and a wing light on at the time of the accident. The snowplow was equipped with two plows: one in the front of the snowplow and one on the right side, also known as a wing plow. At the time of the accident, Mr. Churchill testified that he was plowing snow from the line closest to the median barrier in the left or passing lane. His front snowplow was down but the right side plow or wing plow was up because it was on the opposite side of the truck from where he was plowing and because if it had been down it would have been sticking out into an open lane of traffic. Mr. Churchill testified that his snowplow was traveling at about 30 m.p.h. and estimated claimant's vehicle was traveling at about 45 m.p.h. at the time of the accident. Mr. Churchill had observed claimant's vehicle for about three quarters of a mile as it came down the bridge blocking two lanes of traffic, the passing lane and the center lane.
Churchill deposition, pgs. 15-18 (Claimant's Exhibit B).
Churchill deposition, pgs. 35-36 and 38-39 (Claimant's Exhibit B).
Mr. Churchill signed an accident report after the accident occurred. According to the description on the report, Mr. Churchill was driving a snowplow in the passing lane with the front plow down clearing snow while salting. According to the statement, all his lights were activated when he saw a vehicle approaching rapidly from behind him. He braced himself for the impact from the vehicle, which struck the snowplow in the spreader of the truck.
Equipment Incident / Accident Report (Claimant's Exhibit I).
Joseph Slazak, an assistant traffic supervisor, testified at his deposition that he had been employed by the NYSTA since 2001 and that part of his responsibility was to investigate accidents. According to Mr. Slazak, the snowplow was a standard dump truck with a front plow and a right wing plow. None of the NYSTA snowplows were equipped with a dash cam, but it was equipped with a computer which measures the amount of salt dispensed. On a given day, a supervisor would assign a plow route to a driver, but it was usually up to the driver to determine what to salt and/or plow based on the weather conditions. Mr. Slazak testified at his deposition that he arrived at the scene about 45 minutes after it occurred. He saw the snowplow in the passing lane and a car behind it in a compromised condition. The roads were wet and it was snowing lightly when he arrived. According to Mr. Slazak's testimony, the rotating beacon, taillights, headlights, emergency flashers and the arrow board pointing right were all activated on the snowplow when he arrived. While the side or right wing plow was up, from the pictures he took at the scene, Mr. Slazak testified that the front plow was down. Mr. Slazak testified that he prepared a statement based on his conversation with the snowplow driver, Mr. Churchill. According to this statement, the driver was salting at the time of the accident. Mr. Slazak could not recall if he saw salt on the roadway but recalled that there was snow on the shoulder. Based on his experience and observations at the scene, it was the opinion of Mr. Slazak that there was nothing the snowplow operator could have done to avoid the accident. Mr. Slazak further testified at his deposition that the snowplow driver told him that he was plowing the shoulder with the front plow down and the side or wing plow up at the time of the accident.
Slazak deposition, pgs. 16-18 (Claimant's Exhibit F).
Slazak deposition, pgs. 34-36 (Claimant's Exhibit F).
Slazak deposition, pgs. 40-42 (Claimant's Exhibit F).
Slazak deposition, pgs. 52-58 (Claimant's Exhibit F).
Slazak deposition, pgs. 67-80 (Claimant's Exhibit F).
Slazak deposition, pgs. 83-84 (Claimant's Exhibit F).
Attached to claimant's opposing papers is a copy of an affidavit of John Gilcher sworn to April 24, 2015. According to his affidavit, Mr. Gilcher was driving southbound on I-190 when he saw that there had been a collision between a snowplow and another vehicle. Mr. Gilcher stated that the driver of the other vehicle told him that the snowplow truck pulled in front of her from nowhere. Mr. Gilcher also stated that the snowplow operator told him that the driver of the other vehicle hit him. According to Mr. Gilcher, the plow on the snowplow was not down, the roads were clear and dry, and that when he approached the scene, the snowplow did not have its caution/ plow lights on.
According to the Police Report (Claimant's Exhibit C) the subject accident occurred on February 15, 2015, not on February 2, 2015 as stated in the Gilcher affidavit and verified claim.
Affidavit of John Gilcher (Claimant's Exhibit D).
Michael Osborne, senior thruway maintenance specialist for the NYSTA, testified at his deposition that he handles ice and snow contracts for materials, including salt and liquid mixture utilized for the removal of snow and ice. He is responsible for reviewing and analyzing the data reflected on the Compu-Spread Log which was maintained as part of the regular course of business. According to this log, starting at 11:06 p.m. on February 15, 2015 for the next 58 minutes and 29 seconds, the subject snowplow no. 4980 released 6,189 pounds of salt. It also indicated that zero liquid brine had been dispensed. Mr. Osborne explained in his affidavit that the ground speed of the snowplow is normally recorded by a cable connected to the rear of the snowplow. A ground speed of zero was reflected on the log as the cable which records the speed was broken and the system measuring ground speed was damaged as a result of the accident.
Osborne deposition, pgs. 5-6 (Defendants' Exhibit Q) and Osborne affidavit sworn to February 21, 2017 at p. 1.
Osborne deposition, pgs. 12-13; 33 and 36 (Defendants' Exhibit Q) and Osborne affidavit sworn to February 21, 2017 at pgs. 2-5.
Osborne affidavit sworn to February 21, 2017, p. 5.
Paul William Clark, a thruway maintenance supervisor 1 for the NYSTA supervises a crew. One of the members of his crew was Brett Churchill, the snowplow operator. Mr. Clark was working the night of the accident out of the Niagara maintenance shop about a mile from the accident site. Mr. Clark heard Mr. Churchill call in the accident, saying that he had been struck by a vehicle, and responded to the accident site. Mr. Clark arrived within minutes of Mr. Churchill's call. He arrived before the police or first responders. When Mr. Clark arrived at the scene, the snowplow was in the southbound passing lane. According to Mr. Clark , the compu-spread report shows when the salt was turned on. The snowplow does not spread salt if the truck is stopped. Mr. Clark observed damage to the spinner chute on the rear of the snowplow. When Mr. Clark arrived at the scene, he testified that the truck had its right arrow on, and that the Mars light, amber lights (the yellow flashing lights in the back) and spinner lights were all on.
Clark deposition (Defendants' Exhibit O).
Philip Serafino was employed by the NYSTA as an Administrative Assistant. According to his affidavit sworn to February 17, 2017, he was the assigned GPS Administrator at the time of the accident. Mr. Serafino reviewed the activity detail log for snowplow no. 4980 for the night of the accident. The log indicated that Mr. Churchill traveled about 20 miles on the highway and that his average speed during the approximately 50 minutes before the accident was slightly less than 30 m.p.h. DECISION
Serafino affidavit sworn to February 17, 2017. --------
Summary judgment is a drastic remedy which should only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of such a motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Zuckerman v City of New York, supra at 562). Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion (Id.). In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party (Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96 [2006]).
Vehicle and Traffic Law § 1103 (b) provides that the rules of the road:
"shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway . . .
The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others."
Vehicle and Traffic Law § 1103 (b) applies to the operators of snowplows when they are "actually engaged in work on a highway" (see Wilson v State of New York, 269 AD2d 854 [4th Dept 2000], affd sub nom. Riley v County of Broome, 95 NY2d 455 [2000]). Claimant argues that the question presented on this motion is whether the snowplow operator was actually engaged in work on a highway. According to claimant, the record is not clear as to what the operator of the snowplow was doing at the time of the accident and, thus, a question of fact exists as to whether the operator was engaged in work on a highway and whether the State may rely upon the reckless disregard standard of conduct set forth in Vehicle and Traffic Law § 1103 (b).
The record is clear that Mr. Churchill, the snowplow operator, was assigned to plow and salt a portion of the I-190. He had completed one run of his assigned route and had just completed a U-turn and had just begun a second run when the accident occurred. In the 50 minutes or so prior to the accident, the GPS and the Compu-spread log records showed that snowplow no. 4980 had traveled about 20 miles at an average speed of just under 30 mph and had dispensed 6,189 pounds of salt. Mr. Churchill testified at his deposition that he was plowing snow off the line on the highway next to the median barrier separating the northbound and southbound traffic at the time of the accident. Claimant alleges that it is unclear whether the plows on the truck were up and whether or not salt was being dispensed at the time of impact and, thus, whether or not the snowplow was actually engaged in work on a highway and entitled to rely on Vehicle and Traffic Law § 1103 (b). Judge Francis T. Collins of the Court of Claims addressed this issue in Dumoulin v State of New York, UID No. 2004-015-415 (Ct Cl, Collins, J., Aug. 9, 2004), when he observed:
"It matters not whether he was actually plowing or dispensing salt at the precise moment of impact. (Citation Omitted) [T]he operator here was assigned the duty of maintaining a specific portion of I-87. That duty related directly to the subject roadway and it was while he was engaged in carrying out his responsibilities that the contested actions took place. As a result, the Court finds as a matter of law that at the time of the accident at issue herein the snowplow was 'actually engaged in work on a highway'. . . "
A similar result was reached by Judge Philip J. Patti of the Court of Claims in McLeod v State of New York, 8 Misc 3d 1009(A) (Ct Cl 2005). In McLeod, a snowplow operator had his front plow and wing plow up and was not dispensing salt as he waited at a traffic signal to make a left turn. From the initial stop at the red light and forward toward the intersection and until the accident, the snowplow operator's plows remained elevated. Judge Patti found that the snowplow operator was in the middle of a plowing and salting run while at the intersection and held that the snowplow operator was actually engaged in work on a highway for purposes of Vehicle and Traffic Law § 1103 (b).
Based on the record before me, I conclude as a matter of law that defendants have met their initial burden of establishing that the snowplow was in the middle of a plowing and salting run and, therefore, was actually engaged in work on a highway at the time of the accident pursuant to Vehicle and Traffic Law § 1103 (b). Thus, the snowplow is exempt from the rules of the road except to the extent that its operation constituted reckless disregard for the safety of others (see Curella v Town of Amherst, 77 AD3d 1301 [4th Dept 2010]).
The reckless disregard standard requires evidence that the snowplow operator acted "in conscious disregard of a known or obvious risk that [was] so great as to make it highly probable that harm [would] follow (see Ferrand v Town of N. Harmony, 147 AD3d 1517 at 1518, citing Primeau v Town of Amherst, 17 AD3d 1003, [4th Dept 2005], affd 5 NY3d 844 (2005). Recklessness "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 . . . (citation omitted)" (Saarinen v Kerr, 84 NY2d 494, 501 [1994]; see also Campbell v City of Elmira, 84 NY2d 505, 510-511 [1994]. Defendants contend that the actions of the snowplow operator did not rise to the level of reckless disregard. The Court agrees.
Claimant testified at her deposition that the snowplow did not have all of its lights activated. Claimant also testified that she saw the snowplow ahead of her as she was going through the toll plaza and that the area of the toll plaza was well lit. Thus, even if the snowplow operator's testimony to the contrary was disregarded, the mere fact that all of the lights on the snowplow may not have been activated does not rise to the level of reckless disregard for the safety of others as the snowplow was visible.
Claimant also testified at her deposition that the snowplow, which was in front of her, moved over into her lane and hit the front side of claimant's car. While this testimony is contested by the snowplow operator, who testified that the claimant rear-ended the snowplow, claimant's testimony, even if believed, does not establish reckless disregard. In Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705 (2d Dept 2008) a snowplow operator who failed to look in his side mirrors immediately before changing lanes and struck a bus was held to have a momentary lapse of judgment, but was not reckless. Similarly, in Dumoulin v State of New, supra, summary judgment was granted to defendant by Judge Collins, who found that although the snowplow operator's conduct would meet the standard of ordinary negligence, such conduct was simple misjudgment and did not amount to reckless disregard. In Dumoulin, the snowplow operator was found to have either failed to properly check for approaching traffic, miscalculated the speed of the approaching vehicle, or erroneously concluded that he could safely maneuver his vehicle across the travel lanes to the crossover without incident. (Dumoulin, supra at p. 4).
Accordingly, viewing the facts in a light most favorable to claimant, the Court concludes that the evidence could not lead to a conclusion that the snowplow operator acted with reckless disregard. The defendants have met their burden to prove that the snowplow operator did not act in reckless disregard for the safety of others and did not act "in conscious disregard of a known or obvious risk that [was] so great as to make it highly probable that harm [would] follow" (Ferrand v Town of N. Harmony, supra quoting Primeau v Town of Amherst, supra). As a result, the claimant has failed to raise a material issue of fact.
Finally, no evidence has been presented by claimant as to any involvement by the State of New York. The evidence indicates that the snowplow was owned by the NYSTA and the operator was employed by the NYSTA. Accordingly, the State of New York is entitled to summary judgment on this alternate ground as well.
Based on the foregoing, defendants' motion for summary judgment is granted and claim no. 126032 is dismissed.
September 29, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and supporting affirmation of Assistant Attorney General Wendy E. Morcio dated February 21, 2017, with annexed Exhibits A-Q; 2. Supporting affidavit of Philip Serafino sworn to February 17, 2017; 3. Supporting affidavit of Michael Osborne sworn to February 21, 2017; 4. Defendants' Memorandum of Law dated February 22, 2017; 5. Opposing affidavit of Charles S. Desmond, II, Esq. sworn to March 31, 2017, with annexed Exhibits A-J; and 6. Reply affirmation of Assistant Attorney General Wendy E. Morcio dated April 11, 2017, with annexed affidavit of Michael Osborne sworn to April 11, 2017 (Exhibit A).