Opinion
# 2013-009-100 Claim No. 117920
02-26-2013
LAWRENCE A. PERKINS v. THE STATE OF NEW YORK
Synopsis
The court found the State 100% liable for personal injuries suffered by claimant, a pedestrian, when he was struck by a New York State Police vehicle. Case information
UID: 2013-009-100 Claimant(s): LAWRENCE A. PERKINS Claimant short name: PERKINS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117920 Motion number(s): Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. MENTER, RUDIN & TRIVELPIECE, P.C. Claimant's attorney: BY: Robert G. Bennett, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Christopher Wiles, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: February 26, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim, claimant seeks damages for personal injuries suffered by him when he was struck by a New York State Police vehicle operated by Trooper Thomas A. Gallery on November 24, 2009, at approximately 7:55 p.m. At that time, Trooper Gallery was proceeding southbound on New York State Route 11 when he struck claimant, a pedestrian, in front of the Reymore Chevrolet dealership as claimant was attempting to cross Route 11.
The trial of this claim was bifurcated, and this decision therefore is limited to the issue of liability.
Prior to trial, claimant brought a motion seeking a determination as to whether the conduct of Trooper Gallery in the operation of his motor vehicle should be measured by the ordinary negligence standard of care, or rather the reckless disregard standard of care permitted under certain circumstances pursuant to Vehicle and Traffic Law § 1104(c). In a Decision and Order filed December 7, 2011 (Motion No. M-80260), this Court determined that at the time of the accident, Trooper Gallery was not involved in an emergency operation as defined under Vehicle and Traffic Law § 114-b, and therefore liability in this matter should be determined by the ordinary negligence standard of care.
Additionally, claimant brought a motion in limine (Motion No. M-81037), returnable at the commencement of trial, in which claimant sought a determination on the issues of spoliation of evidence; the application of the "emergency doctrine"; and a determination of comparative fault under CPLR § 1411. This motion was denied by the Court, without prejudice to renew at the close of proof, as it was the opinion of this Court that a resolution of each and every issue raised in this motion was dependent upon the Court's consideration of the trial testimony. The Court notes that claimant made no attempt to renew this motion at the conclusion of the trial testimony.
Brian D. Hickey, an eyewitness to this accident, testified on behalf of the claimant. Mr. Hickey testified that he was an employee at Reymore Chevrolet and that he was working at the time of the accident. He testified that the car dealership is located on Route 11, near the village line of the Village of Central Square. He testified that the posted speed limit on Route 11 at this location is 30 miles per hour.
Mr. Hickey testified that at approximately 8:00 p.m. during the evening of November 4, 2009, he had his back turned to Route 11 when he heard a loud screeching of tires. He immediately turned around, facing Route 11, and observed a State Police vehicle strike claimant. Mr. Hickey testified that in his opinion, the State Police vehicle was proceeding at least 10 miles per hour faster than most cars which travel through the area on Route 11.
Mr. Hickey also testified that at the time of this accident, it was dark, but that lights from the car dealership, as well as village street lighting, illuminated the area.
Claimant testified that at the time of this incident, he was employed as a salesperson at Reymore Chevrolet, and had been so employed since August 2003. He testified that he often parked his own vehicle across the street (Route 11) from the dealership, and as a result he had crossed Route 11 at this location countless times during the course of his employment, in walking to and from his car.
Claimant testified that in the area of the dealership, Route 11 is flat, straight, and wide, with wide shoulders, with clear visibility in both directions. He indicated that there is a slight upgrade south of the dealership, but that Route 11 is flat and straight north of Reymore Chevrolet.
Claimant testified that on the date of the accident, the weather was cool and cloudy, and the roads were dry even though there had been a light rain earlier in the day.
Claimant testified that he left work a few minutes before 8:00 p.m, and that before crossing the road, he looked in both directions and observed headlights from oncoming cars in both directions. He testified, however, that both sets of headlights were quite a distance away from him, leaving him plenty of time to safely cross the road at a normal pace, without any risk of being hit from an oncoming vehicle. Claimant testified that he had almost completed crossing both lanes of Route 11, and was in the southbound lane near the west shoulder, when he heard a car coming towards him in the southbound lane. He immediately started to run to the west shoulder but was only able to take one or two steps before he was struck by that southbound vehicle. Claimant testified that when he was struck by this vehicle, he was very close to or on the fog line of the southbound lane. Claimant testified that after he was hit, he fell to the ground, and that he then heard the vehicle collide with another car which had been proceeding north on Route 11.
Claimant testified that at the time of this accident, he was wearing khaki pants and a medium colored blue jacket.
William C. Fischer was found qualified by the Court as an accident reconstruction expert, and testified on behalf of the claimant. Mr. Fischer testified that according to his measurements, there is a posted 30 miles per hour speed limit sign in the southbound lane of traffic on Route 11, located a distance of 295 feet north of the point of impact of this accident. He testified that this posted speed limit sign was visible to Trooper Gallery (who was operating the State Police vehicle that evening). He further determined that the point of impact between claimant and the State Police vehicle was at or near the fog line of the southbound lane of traffic.
Mr. Fischer concluded, based upon his review of the accident reconstruction report prepared by the New York State Police, that the State Police Trooper was traveling at approximately 57-60 miles per hour at the time of impact. Mr. Fischer also concluded that, based upon his calculations, if Trooper Gallery had been driving at 30 miles per hour, the trooper would have had sufficient time and distance to stop his vehicle before striking claimant.
Mr. Fischer testified that the State Police vehicle is equipped with a "power box" (Power Train Control Module) that records data such as speed of the vehicle. However, Mr. Fischer testified that the car ignition must be turned off in order for such data to be preserved, and that in this particular matter, Trooper Gallery had not turned off his car ignition following the accident. Mr. Fischer testified that if the car ignition remains on, the data is automatically overridden, and the data is only preserved when the ignition is turned off. Accordingly, no such data regarding speed of the vehicle at the time of impact was preserved.
Thomas A. Gallery, the New York State Trooper who was driving the vehicle which struck claimant, testified on behalf of the defendant. Trooper Gallery testified that he was working the second shift, from 7:00 p.m. to 7:00 a.m., on November 24, 2009, the date of this accident. He testified that shortly before 8:00 p.m., he had left the State Police Barracks, located on Route 11 in the Town of Hastings just north of the Village of Central Square, and that he was traveling to the Town of Constantia Town Court in order to obtain an arrest warrant. Trooper Gallery testified that there was light traffic on Route 11, that the pavement was wet, and that it was dark since it was almost 8:00 p.m.
Trooper Gallery testified that the speed limit on Route 11 at the Hastings Police Barracks is 55 miles per hour. He further testified that less than a mile south of the barracks, the speed limit on Route 11 changes to 40 miles per hour, and that further south, at the Village of Central Square boundary line, the speed limit changes from 40 miles per hour to 30 miles per hour. Trooper Gallery testified that when he entered the 30 miles per hour zone at the Village of Central Square boundary line, he estimated that he was traveling approximately 45 miles per hour.
Trooper Gallery testified that when he first observed claimant in the road, claimant was approximately 100-200 feet away, and he was in the roadway near the center line of Route 11. He testified that he did not take any immediate action, and specifically that he did not sound his horn or apply his brakes when he first saw claimant, but rather "observed"claimant as Trooper Gallery continued to drive south towards him. He testified that as he approached claimant, and in order to avoid striking him, he turned his vehicle hard to the right (to the west shoulder of Route 11), and while doing so he saw that claimant began to run towards the west side of the southbound lane. He testified that his vehicle struck claimant while claimant was at or near the fog line on the west side of the southbound lane of traffic on Route 11.
Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
Trooper Gallery testified that after striking claimant, he lost control of his vehicle and drove partially off the shoulder, and that his vehicle then began to "yaw" or turn in a counterclockwise direction while continuing to move southward. He testified that his vehicle then veered back onto the surface of Route 11, crossing the southbound lane entirely, and entered the northbound lane of Route 11 where it struck another vehicle which was proceeding northbound. He acknowledged that at the moment of impact with claimant, he was operating his vehicle in excess of the 30 miles per hour speed limit.
Trooper Gallery testified that after his vehicle came to rest, he left his motor running so that his lights and radio would work, and immediately left his vehicle to check on the occupants of the northbound vehicle which he had struck. After checking those occupants, he then proceeded to check on claimant's condition.
Brett T. Yorgey, a New York State Trooper, was also called as a witness by the defendant. Trooper Yorgey was found qualified by the Court as an expert in accident reconstruction.
Trooper Yorgey testified that he was called to the scene of the accident on that night, and interviewed those witnesses who were present at the scene. Trooper Yorgey testified that in addition to interviewing witnesses, he also took several measurements and made a diagram of the scene and used this data in making his reconstruction report (Exhibit 38).
Trooper Yorgey testified, based upon his calculations, that Trooper Gallery's speed at the point of his initial skid marks was 42.7 miles per hour.
Trooper Yorgey also testified that he was not able to determine the exact point of impact between Trooper Gallery's vehicle and claimant, but was able to determine that the contact with claimant was with the left sideview mirror and left side of Trooper Gallery's vehicle.
Trooper Yorgey testified that at the scene of the accident, lighting of Route 11 was provided by the Reymore Chevrolet sign, as well as streetlights, which created a "backlight" effect. He also testified that the sight distance for a southbound vehicle on Route 11 was approximately 900 feet to the area where this accident occurred. He stated that there was no crosswalk in this area at the point where claimant was attempting to cross Route 11.
Trooper Yorgey acknowledged that he was unable to retrieve any information from the power train module of Trooper Gallery's vehicle. He stated that since the ignition had been left on, any stored information was automatically overridden after 63 seconds (until the ignition is turned off). He also testified that Trooper Gallery acted properly in leaving his car running after the accident, as he was attempting to warn any oncoming traffic of this accident.
Trooper Yorgey concluded that the primary cause of this accident was "pedestrian error" as a result of claimant's attempt to cross the road in this area. Trooper Yorgey made references to the fact that this accident occurred at night, and that rain earlier in the day had created a damp pavement, which, when combined with the lighting in the area, created a "backlight" effect that made it more difficult for Trooper Gallery to see the claimant. Trooper Yorgey also referenced the fact that claimant was not crossing in a designated crosswalk, as previously indicated. Trooper Yorgey acknowledged that Trooper Gallery bore some responsibility for this accident due to his loss of control of his vehicle.
DISCUSSION
As stated at the outset of this decision, this Court, in its Decision and Order filed December 7, 2011, determined that Trooper Gallery's conduct should be measured by the ordinary negligence standard of care, and not the reckless disregard standard permitted under Vehicle and Traffic Law § 1104 (e). There was no testimony during this trial to suggest otherwise, and therefore liability shall be determined pursuant to the negligence standard.
First, testimony established, without any contradiction, that Trooper Gallery was exceeding the posted speed limit of 30 miles per hour when he struck claimant. Not only did Mr. Fischer, claimant's expert, calculate that Trooper Gallery was traveling at 57 to 60 miles per hour when he struck claimant, but Trooper Yorgey, the State's expert, calculated that Trooper Gallery's speed at the time of impact was 42.7 miles per hour in this 30 miles per hour zone. Furthermore, Trooper Gallery even acknowledged at trial that he was exceeding the speed limit at the time of this accident.
This undisputed fact - that Trooper Gallery was exceeding the posted speed limit at the time of this accident without any justification - constitutes negligence per se (Koziol v Wright, 26 AD3d 793; Feeley v St. Lawrence Univ., 13 AD3d 782).
Second, a motorist has a duty "to keep a reasonably vigilant lookout for pedestrians, to sound his horn when a reasonably prudent person would do so to warn a pedestrian of danger, and to operate his vehicle with reasonable care to avoid colliding with a pedestrian on the roadway" (Merrill v State of New York, 110 Misc 2d 260, 267, affd 89 AD2d 802; Spicola v Piracci, 2 AD3d 1368; Crandall v Lingener, 113 AD2d 529, lv denied 67 NY2d 607, see also Vehicle and Traffic Law 1146).
In this particular case, it is clear from Trooper Gallery's own testimony that when he first observed claimant in the roadway from approximately 100 to 200 feet away, he did nothing but "observe" claimant. He admittedly did not sound his horn or apply his brakes, and took evasive action at the very last moment, immediately before striking claimant. Without even considering Trooper Gallery's excessive speed, it is abundantly clear to this Court that Trooper Gallery failed to operate his vehicle with reasonable care, and failed to take appropriate steps to avoid this collision with claimant, even after he first observed him on the roadway.
Third, defendant has relied upon testimony regarding weather and roadway conditions that could have affected Trooper Gallery's ability to see claimant in the roadway. Although claimant and Mr. Hickey both testified that the roadway was dry, Trooper Gallery testified that the roadway was wet at the time of this accident. It is defendant's position that the wet roadway, combined with the roadway lighting and the lighting from the Reymore Chevrolet sign, created a glare condition which affected Trooper Gallery's vision.
Viewing this testimony in a light most favorable to the defendant, i.e., that a glare condition existed, the Court must then consider Vehicle and Traffic Law § 1180 (a), which states that "no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." Accordingly, Trooper Gallery was charged by law to operate his vehicle at a reasonable and prudent speed, taking into consideration the weather and roadway conditions.
In this particular matter, the Court finds that Trooper Gallery, by operating his vehicle at a speed well in excess of the posted speed limit during conditions which affected his visibility, failed to operate his vehicle at a reasonable and prudent speed.
The Court therefore finds that Trooper Gallery's excessive speed, his failure to exercise due care when he first noticed claimant in the roadway, and his unreasonable speed under the prevailing conditions, were all proximate causes of his collision with claimant. The defendant, therefore, must be found accountable for the injuries suffered by claimant in this accident.
The Court must therefore address what it considers to be the more difficult question presented by this claim - the amount of comparative negligence, if any, which should be attributable to the claimant.
Although there was no crosswalk in this area, claimant was very familiar with the roadway, and had crossed the roadway innumerable times at this specific location due to his employment at Reymore Chevrolet. Testimony established that the roadway in this area was clear and unobstructed. According to this testimony, claimant observed headlights from approaching vehicles in both directions prior to crossing the road, but those vehicles were at such a distance that he believed he had more than sufficient time to safely cross the road.
Additionally, claimant testified that he had almost made it to the opposite side of the roadway when he first became aware that Trooper Gallery's vehicle was fast approaching, so that he immediately started to run to the nearest shoulder of the roadway when he was then struck by Trooper Gallery. The Court finds that claimant's actions in attempting to avoid this accident were reasonable and appropriate. Simply stated, claimant's actions in attempting to avoid being struck by Trooper Gallery's vehicle by trying to reach the shoulder merely a few feet away was certainly more reasonable than attempting to backtrack across an entire lane of traffic.
Furthermore, the Court finds that claimant was wearing appropriate clothing (a blue windbreaker and khaki pants) at the time of this accident.
During the trial, defendant's expert, Trooper Yorgey, testified that in his opinion, the primary cause of this accident was pedestrian error. At that time, the Court found such a conclusion incredulous, and continues to do so at this time. The Court finds absolutely no basis on which to attribute any comparative negligence to the claimant.
Accordingly, the Court therefore finds that the defendant State of New York is 100% responsible for the injuries suffered by claimant in this accident. The Chief Clerk of the Court of Claims is therefore directed to enter judgment on the issue of liability in accordance with this decision. A trial on the issue of damages will be scheduled as soon as practicable.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 26, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims