APPEALS by the defendants County of Suffolk, Suffolk County Police Department, and Police Officer Lee Weidl in an action to recover damages for personal injuries, etc., from (1) so much of an interlocutory judgment of the Supreme Court (John J.J. Jones, Jr., J.), dated May 12, 2006, and entered in Suffolk County, as, upon a jury verdict on the issue of liability finding the defendant Police Officer Lee Weidl 50% at fault in the happening of the accident, upon the denial of their application pursuant to CPLR 4401 for judgment as a matter of law made at the close of the evidence, and upon the denial of their oral application pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law, is in favor of the plaintiffs and against them on the issue of liability, and (2) an order of the same court (Denise F. Molia, J.) dated July 18, 2006, which denied their oral motion for an automatic stay pursuant to CPLR 5519(a)(1). By decision and order dated July 17, 2007, this Court dismissed the appeal from the order dated July 18, 2006, reversed the interlocutory judgment insofar as appealed from, granted the appellants' application pursuant to CPLR 4401 for judgment as a matter of law, and dismissed the complaint insofar as asserted against the appellants. In an opinion dated June 12, 2008, the Court of Appeals reversed the decision and order of this Court, held that the jury could have rationally found that the conduct of the defendant Police Officer Lee Weidl was a substantial cause of the collision between the injured plaintiff and the defendant Darlene Maldonado, and remitted the matter to this Court for consideration of the issues raised but not determined previously by this Court (see Tutrani v County of Suffolk, 10 NY3d 906). Justices Angiolillo and Carni have been substituted for Justices Schmidt and Goldstein (see 22 NYCRR 670.1[c]).
The opinion of the court was delivered by: Dickerson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, EDWARD D. CARNI & THOMAS A. DICKERSON, JJ.
On the morning of March 25, 2003, the plaintiff Pamela Tutrani (hereinafter the plaintiff) was driving her vehicle during rush-hour traffic on the service road of the Long Island Expressway near Exit 53, when her vehicle was struck in the rear by a vehicle driven by Darlene Maldonado. Seconds before this rear-end collision, a police vehicle operated by the defendant Suffolk County Police Officer Lee Weidl (hereinafter Officer Weidl) came to an abrupt stop in front of the plaintiff's vehicle. The plaintiff was able to stop her vehicle in time to avoid colliding with the police vehicle. At the time of the accident, Officer Weidl was responding to a radio dispatch concerning a disabled motorist on the service road near exit 53.
At trial, the plaintiff testified that immediately before the accident, Officer Weidl abruptly moved into her lane, "cutting her off" and causing her to "jam" on her brakes to avoid colliding with his vehicle. The plaintiff stated that Officer Weidl did not signal his intention to change lanes or activate his overhead lights.
Officer Weidl's Testimony
Officer Weidl testified that he received a dispatch indicating that there was a disabled motorist on the service road near Exit 53. He looked for the disabled vehicle as he drove on the service road. He was driving at approximately 40 miles per hour in the middle lane. He did not know what lane of traffic the vehicle was in, only that it was disabled. When asked if he knew that there was not a life-endangering situation involved, Officer Weidl responded that he only knew he was responding to a disabled motorist.
At some point, Officer Weidl observed the disabled vehicle on the shoulder of the road. The entire vehicle was on the shoulder of the roadway. Officer Weidl was still traveling at 40 miles per hour. When asked if he recognized, upon seeing the disabled vehicle, that it was not a life-or-death situation, Officer Weidl responded, "I recognized it to be a disabled motorist." He observed that the disabled vehicle had a flat tire. However, he could not recall when he made that observation. He further testified that, when he saw the disabled motorist, there was nothing about her that made him believe that she was in distress.
The disabled motorist was 100 feet in front of Officer Weidl. He stated that, to arrive at the location of the disabled vehicle, without passing it, he had to move from where he was in the middle lane, through the right lane, and to the shoulder where the disabled vehicle was located, within the distance of 100 feet. Officer Weidl testified that he thought it was safe to cross the Long Island Expressway service road at the relevant location within a 100-foot distance in 11/2 second's time in rush hour traffic.
When asked if it was an option to pass the motorist, Officer Weidl responded that it was his intention to respond to the disabled motorist. He subsequently testified that he "was going to respond to it in a safe manner." When pressed on whether anything prevented him from passing the disabled vehicle, changing lanes gradually, and coming back to the motorist, Officer Weidl testified that he wanted to respond to assist the disabled motorist. However, he then acknowledged that he could have passed the disabled vehicle and proceeded to the next exit. He acknowledged that there were options available to him that ...