A Qualified Privilege of Emergency Responders
By: Thomas J. Foley, Esq.
On occasion, a police or emergency vehicle is involved in a motor vehicle accident while responding to a police, fire or medical crisis. When presented with a potential personal injury case involving an emergency vehicle, the prudent practitioner should carefully examine the facts surrounding the accident. New York law demands that all motorists, including emergency personnel, comply with speed, turning and stopping restrictions. However, under certain circumstances, emergency responders are cloaked with a qualified privilege permitting them to disregard the rules of the road as found in the Vehicle and Traffic Law. Therefore, the proof necessary to establish a prima facie personal injury case against a first responder requires a higher level of proof than that of an ordinary motor vehicle accident.
Vehicle and Traffic Law '1104[1] provides that an emergency vehicle responding to an emergency situation may park where necessary ('1104(b)(1)), speed ('1104(b)(2)), pass a red light ('1104(b)(3)), or ignore turning restrictions ('1104(b)(4)). The responding officers authority to operate his/her vehicle in contradiction to the VTL is limited in that the officer must have the lights and sirens to the emergency vehicle activated ('1104(c)) and may not act with reckless disregard for the safety of others. ('1104(e)). A reckless disregard occurs when the operator of a motor vehicle intentionally does an act of an unreasonable character in disregard of or in conscious indifference to a known or obvious risk that would make it highly probable that harm would follow. Reckless disregard requires a deliberate decision to ignore a likely harm. (N.Y. Pattern Jury Instr.--Civil 2:79A). Specific factors to consider in determining if the officer's conduct rises to the level of reckless disregard include the following: the nature of the emergency, road, traffic and weather conditions, the time of day, the speed of the officer's vehicle, whether the officer followed departmental guidelines, and whether the emergency signals of the officer's vehicle were activated. (N.Y. Pattern Jury Instr.--Civil 2:79A).
The purpose of granting emergency responders immunity is to afford operators of emergency vehicles freedom to perform their duties unhampered by normal rules of the road. Saarinen v. Kerr, 84 N.Y.2d 494 (1994). In Saarinen, a Village was sued based upon the conduct of a police officer pursuing a suspected criminal in a motor vehicle chase. In finding that the police officer's conduct did not rise to the level of reckless disregard, the Court of Appeals reviewed the standard for reckless disregard as required by VTL '1104. The Court held that this standard 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. (Id. at 501, citing Prosser and Keeton, Torts, '34 at 213 [5th ed]. The Court went on to examine the conduct of the suspect that the officer was pursuing. The suspect's conduct in fishtailing, squealing of brakes and disregard of traffic signs and signals, afforded the officer the Aright to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop the offending driver. Id. at 503. The Court found that although the officer exceeded the speed limit on a wet roadway, the officer's top speed of 60 miles per hour was hardly a breakneck pace for a police pursuit on relatively empty, nonresidential streets. Id. at 503.
In a decision dated January 27, 2009, Corallo v. Martino (2 Dept., 2009 NY Slip Op 00496) the Appellate Division, Second Department, dealt directly with the issue of the qualified privilege enjoyed by operators of emergency vehicles responding to an emergency. In Corallo, the Court decided that an issue of fact existed as to whether defendant, Police Officer Martino, was entitled to the qualified privilege. The Court explained that in order to obtain the benefit of the privilege, Martino would have to show, (1.) he slowed his vehicle before entering the intersection against the red light; (2.) he checked for traffic before entering the intersection; and (3.) he activated the siren on his vehicle before entering the intersection. In denying the defendant's summary judgment application, the Court reasoned that Martino's submissions in support of his motion, left unresolved the question as to whether or not he acted in reckless disregard for the safety of others when he entered the subject intersection.
Prior to the Corallo decision, the Second Department denied the defendant City of New York's motion for summary judgment in Burrell v. City of New York, 49 A.D. 3d 482 (2d Dept. 2008). In Burrell, the Court found certain factors relevant in determining if the defendant police officer's conduct rose to the level of recklessness required by the '1104 of the VTL. Those factors to consider include: (1.) whether or not the officer had the vehicle's lights and sirens activated; (2.) whether or not the officer slowed down as she approached the intersection; and (3.) was the officer's view of the intersection obstructed by a parked vehicle and/or inclement weather.
The question in Britt v. Bustamante, 55 A.D.3d 858 (2d Dept. 2008) was whether the conduct of the defendant police officer in passing a stop sign while responding to an emergency, rose to the level of recklessness. The Court reversed the lower court's decision granting defendant's application for summary judgment. The Court held that there was a question of fact as to the recklessness of the defendant's conduct based upon the affidavit of a witness who stated that the vehicle did not have its overhead emergency lights on, nor were the sirens activated. (Id. at 859). The affidavit coupled with the question as to whether or not the officer's view of the intersection was partially obstructed by hedges, led the Court to conclude that the defendants failed to meet their burden showing their entitlement to judgment as a matter of law.
Oftentimes cases involving emergency responders result in findings that the responder's conduct did not rise to the level of reckless disregard, even if the responder did not have the vehicle's sirens activated. In Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997), the Court of Appeals examined the conduct of defendant Pilat, a police officer. Officer Pilat was responding to an emergency call when he struck and killed the plaintiff, a 16 year old boy driving his bicycle. Officer Pilat testified that he did not have his siren on at the time of the impact, and he appears to have struck Eric (the plaintiff) while glancing down from the road momentarily to turn on his emergency lights and headlights. (Id. at 555). In agreeing that the case against the Officer should be dismissed, the Court of Appeals reasoned that the risks taken by Officer Pilat were not unreasonable, he did not create a greater risk of probable harm, nor did his conduct rise to level of recklessness required of the driver of an emergency vehicle in order for liability to attach. (Id. at 557, citing Saarinen v. Kerr, 84 N.Y.2d 494, 502).
Although rare, there are circumstances where the Courts have found that emergency responders acted recklessly. In Flack v. State of New York, 57 A.D.3d 1199 (3d Dept. 2008), the Court found that a New York State trooper, acted recklessly in his response to an emergency by driving his police vehicle in excess of 80 miles per hour, losing control of the vehicle, spinning 180 degrees in to the opposite lane and causing an accident with the plaintiff. In concluding that the trooper's conduct rose to the level of reckless as required by the Court of Appeals in Saarinen, the Court focused on the fact that it was raining heavily at the time of the motor vehicle accident between the trooper and plaintiff. Also other motorists on the roadway were traveling below the speed limit, the road contained S-curves and knolls and the trooper knew that there had been other speed related accidents on the roadway. Finally, the Court found the trooper's explanation for this high speed inadequate. The trooper indicated that he was speeding in order to stop a motorist who was traveling 73 miles per hour on the road because the motorist posed a risk to the public. Nevertheless the Court concluded that the trooper was reckless because he pursued that car at a speed of over 80 miles per hour, a speed at which he had never driven on that road even under ideal conditions and a speed which he admitted posed a significant risk to the public.
As a practical matter, it is often beneficial to envision oneself advocating his or her case in front of a jury. If you have been retained by a motorist injured in an accident with an emergency responder, you should be cognizant of the sympathies a jury will likely have for the defendant. After all, you will be asking a jury to find that this emergency responder, in the course of doing his or her job of trying to save a fellow citizen, acted with reckless disregard. This is often a big leap for a jury to make. More often than not the driver of the police car, or fire truck or ambulance will be given the benefit of the doubt. There is a strong public policy that allows emergency responders to disregard the rules of the road. Only in those rare circumstance where the emergency responder recklessly ignores obvious dangers will liability be found against the responder. Factors to closely scrutinize before agreeing to take on such a case include the speeds of the vehicles involved, the weather, the roadway character, whether or not the vehicles lights and sirens were activated prior to the accident, the type of emergency that the responder was heading to and the steps the responder took before violating the rules of the road. Paying careful attention to these factors may save you the time and expense associated with prosecuting an unwinnable case.
VTL '114-b defines an emergency operation as the operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service.
