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OTERO v. TOWN OF SOUTHAMPTON

March 28, 2002

ROBERT OTERO, PLAINTIFF(S),
V.
TOWN OF SOUTHAMPTON, TOWN OF SOUTHAMPTON POLICE DEPARTMENT, AND POLICE OFFICER ANDREW MAZZIO, DEFENDANT(S).



The opinion of the court was delivered by: Platt, District Judge.

  MEMORANDUM AND ORDER

Plaintiff brought this action pursuant to the Civil Rights Act of 1870, 42 U.S.C. § 1981, 1983, et seq., for violations of the Fourth, Fifth and Fourteenth Amendments as well as various State laws. (Compl. ¶¶ 2, 20-30.)

Defendants Town of Southampton, Town of Southampton Police Department and Police Officer Andrew Mazzio (collectively the "Defendants") move this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed herein, Defendants' motion should be and the same is hereby granted.

BACKGROUND

I. Factual Background

Plaintiff's Employment and Health

Plaintiff was employed as a school bus driver for the Montauk Bus Company.

Plaintiff stated that he has suffered from "bad balance" his entire life. (Dep. of Otero at 59-60; Examination of Otero at 28.)*fn1 Plaintiff has stated that he has never fallen because of said bad balance. (Dep. of Otero at 59.) However, Plaintiff has also stated that he "sometimes" can recover from losing his balance but "sometimes" falls down. (Examination of Otero at 29.)

January 20, 1999 and January 21, 1999

Plaintiff began to feel ill on the evening of Wednesday, January 20, 1999. (Dep. of Otero at 53). Plaintiff suffered from a headache and a cough. (Dep. of Otero at 53.) Plaintiff stated that he probably took Bayer aspirin (500 milligrams) and Robitussin before going to bed. (Dep. of Otero at 53.) Plaintiff was unable to sleep through the night and therefore got out of bed a few times. (Dep. of Otero at 54.)

Plaintiff stated that he felt "terrible" upon awaking on Thursday, January 21, 1999. (Dep. of Otero at 54.) Plaintiff suffered from a sore throat, cough, headache and aches. (Dep. of Otero at 54.) Plaintiff therefore called in sick to work at 6:00 am on January 21, 1999. (Dep. of Otero at 54.)

While at home on January 21, 1999, Plaintiff stayed in bed all day. (Dep. of Otero at 56.) Plaintiff did not telephone a doctor. (Dep. of Otero at 57.) He took two tablets of Bayer aspirin (500 milligrams) and Robitussin every four hours. (Dep. of Otero at 56-57.) He also took a high blood pressure medication which he takes daily. (Dep. of Otero at 57.) Plaintiff possibly consumed soup that day. (Dep. of Otero at 58.)

January 22, 1999

When Plaintiffs alarm clock sounded at 6:00 am on January 22, 1999, he "still felt very sick." (Dep. of Otero at 61.) Upon calling work to inform them that he was still sick, Plaintiff was told that he was needed to work that day and decided to "do them a favor and go in [] even though [he] was still sick". (Dep. of Otero at 62.)

Plaintiff did not eat breakfast before leaving the house on January 22, 1999. (Dep. of Otero at 63.) He took Robitussin and two tablets of Bayer aspirin (500 milligrams). (Dep. of Otero at 63.)

Plaintiff left his house at 6:30 am for his first route. (Dep. of Otero at 62.) His first route took about two (2) hours and fifteen (15) minutes, or slightly longer. (Dep. of Otero at 65.) He did not take any medication during his first route. (Dep. of Otero at 65.)

Upon completing his first route of the day, Plaintiff returned to his house for about four and one half (4 1/2) hours during which time he was "lying down until the next run." (Dep. of Otero at 65-66.) He took Robitussin and Bayer aspirin (500 milligrams) four hours after his morning dosage. (Dep. of Otero at 66.) He also ate toast and drank tea. (Dep. of Otero at 67.)

Plaintiff began his second route at approximately 1:50 pm. (Dep. of Otero at 67.) He stated that the children on the bus knew that he was sick based on how he looked, namely he "didn't look good" and "looked tired". (Dep. of Otero at 70.) During his second route, he ate Halls cough drops. (Dep. of Otero at 70-71.) He did not take any other medication during his second route. (Dep. of Otero at 71.)

Upon completing his second route of the day, Plaintiff returned to his house at about 4:30 pm. (Dep. of Otero at 70.) He had some coffee but could not drink it because "it didn't taste right." (Dep. of Otero at 70.) He could not recall if he ate anything at this time. (Dep. of Otero at 70.). Plaintiff does recall taking Bayer aspirin and Robitussin at this time. (Dep. of Otero at 71.)

Plaintiff then began his third route and the events at issue ensued.

Steven Mars

Sometime between 5:30 and 6:00 pm on January 22, 1999, Steven Mars ("Mars") was driving eastbound on Sunrise Highway. (Dep. of Mars at 38; Statement of Steven R. Mars of 3/08/99, at 1.) Mars was passed by a mid-sized school bus traveling eastbound in the left passing lane. (Statement of Steven R. Mars of 3/08/99, at 1.) As the bus passed Mars' car, the bus moved toward Mars' lane such that Mars was caused to "move slightly over the white shoulder marking line." (Statement of Steven R. Mars of 3/08/99, at 1.) Mars slowed down, let the bus pass and continued to follow the bus eastbound as the traffic went to a single lane. (Statement of Steven R. Mars of 3/08/99, at 1.) He noticed that "the bus was swerving from side to side in his lane and at least once crossed over the white line to the shoulder." (Statement of Steven R. Mars of 3/08/99, at 1.) He continued to follow the bus and noticed that the bus continued to swerve within his lane and cross into the shoulder, all the while traveling at least sixty five miles per hour (65 mph). (Statement of Steven R. Mars of 3/08/99, at 1.)

After following the bus for a period of time, Mars was concerned enough to call "911". (Statement of Steven R. Mars of 3/08/99, at 1.) He told the dispatcher that he was following a bus driver who he suspected to be drunk. (Statement of Steven R. Mars of 3/08/99, at 1.) Mars then lost his cellular phone signal. (Statement of Steven R. Mars of 3/08/99, at 1.)

Mars then observed "the bus swerve[] over the double yellow line well into the safety zone." (Statement of Steven R. Mars of 3/08/99, at 1.) He continued to follow the bus, and the bus continued to swerve in the lane and occasionally "cross[] onto the shoulder and over the double yellow line." (Statement of Steven R. Mars of 3/08/99, at 1.)

Mars continued to follow the bus because it was, in his opinion, "an accident waiting to happen." (Statement of Steven R. Mars of 3/08/99, at 1-2.)

Mars then spotted Police Officer Mazzio, who was parked in the North Sea Fire Department parking lot. (Statement of Steven R. Mars of 3/08/99, at 2; Dep. of Mars at 47.) He approached Police Officer Mazzio and informed him that he believed that the school bus driver might be intoxicated because "his driving is impaired; he's all over the road." (Dep. of Mars at 48.)

Police Officer Mazzio then pursued the bus and Mars dialed the non-emergency number to report what he had observed concerning the school bus. (Dep. of Mars at 49; Statement of Steven R. Mars of 3/08/99, at 2.)

By the time Steven Mars began driving again and caught up with Police Officer Mazzio, Plaintiff had already been placed in the police vehicle. (Statement of Steven R. Mars of 3/08/99, at 2; Dep. of Mars at 51-52.) Mars reported that when he asked Police Officer Mazzio "[w]as the guy intoxicated", Police Officer Mazzio responded "I thought so." (Dep. of Mars at 52.)

Police Officer Mazzio

Upon speaking to Mars at approximately 6:00 pm, Police Officer Mazzio pursued Plaintiffs bus traveling northbound on North Sea Road. (Mazzio Aff. ¶ 1; Police Report of 1/22/99.) Police Officer Mazzio followed the bus for approximately one and a half (1 1/2) miles and observed Plaintiffs bus cross over the double yellow line and travel all the way across the southbound lane to the curb. (Mazzio Aff. ¶ 2; Police Report of 1/22/99.) Police Officer Mazzio then observed the bus abruptly return to the northbound lane and cross into the shoulder. (Mazzio Aff. ¶ 2; Police Report of 1/22/99.) Thereafter, Police Officer Mazzio observed the bus turn right onto Noyac Road, at which time the bus drove onto the right shoulder and into the curb. (Mazzio Aff. ¶ 2; Police Report of 1/22/99.) He also observed the bus move into the oncoming lane of traffic when making the turn.*fn2 (Mazzio Aff. ¶ 2; Police Report of 1/22/99.)

Police Officer Mazzio activated the siren lights on his marked police car. (Mazzio Aff. ¶ 3; Police Report of 1/22/99.) He stated that Plaintiff did not heed to the signal for approximately one quarter (1/4) of a mile. (Mazzio Aff. ¶ 4; Police Report of 1/22/99.) The bus then stopped at the intersection of Noyac Road and Straight Path Road, North Sea. (Mazzio Aff. 4; Police Report of 1/22/99.)

Police Officer Mazzio approached the driver's side of the bus. (Police Report of 1/22/99.) After about a one (1) minute conversation, Police Officer Mazzio determined that Plaintiff was "highly intoxicated." (Police Report of 1/22/99.) He asked Plaintiff to exit and walk to the rear of the bus. (Police Report of 1/22/99; Mazzio Aff. ¶ 6.)

Police Officer Mazzio stated that Plaintiff "fell" to the ground upon descending from the bus, specifically that "[h]e opened the door and went to step out and just fell down." (Dep. of Mazzio at 63.) He observed that Plaintiff "had great difficulty walking and standing" and had a "blank stare, slurred and labored speech." (Mazzio Aff. ¶ 6.)

Police Officer Mazzio stated that, in his professional opinion at the time, Plaintiff was "very impaired." (Dep. of Mazzio at 63.) He did not, at that time, form an opinion as to what was the cause of impairment. (Dep. of Mazzio at 63.)

Police Officer Mazzio did not perform a breath test at the scene because he did not suspect alcohol impairment. (Dep. of Mazzio at 85.) He stated that he "had no idea" what was impairing Plaintiff. (Dep. of Mazzio at 85.)

Police Officer Mazzio reported that he did not perform any standard field sobriety tests at the scene because Plaintiff was "so unsteady a-foot he couldn't stand to pe ...


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