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Yasmin Kabir v. County of Monroe

December 30, 2009

YASMIN KABIR, PLAINTIFF-APPELLANT,
v.
COUNTY OF MONROE, MONROE COUNTY SHERIFF DEPARTMENT, KNOWN OR UNKNOWN MEMBERS OF MONROE COUNTY SHERIFF DEPARTMENT AND SUPERVISORY PERSONNEL, MONROE COUNTY SHERIFF PATRICK M. O'FLYNN, AND JOHN DIDOMENICO, INDIVIDUALLY AND AS A MONROE COUNTY DEPUTY SHERIFF, DEFENDANTS-RESPONDENTS.



Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered September 30, 2008 in a personal injury action.

1086

PRESENT: SCUDDER, P.J., MARTOCHE, PERADOTTO, CARNI, AND GORSKI, JJ.

MEMORANDUM AND ORDER

The order, insofar as appealed from, granted those parts of defendants' motion seeking summary judgment dismissing the complaint against defendant County of Monroe and dismissing the amended complaint and denied plaintiff's cross motion seeking partial summary judgment with respect to liability.

It is hereby ORDERED that the order insofar as appealed from is reversed on the law without costs, those parts of the motion seeking summary judgment dismissing the complaint against defendant County of Monroe and dismissing the amended complaint are denied, the complaint against defendant County of Monroe and the amended complaint are reinstated and the cross motion is granted.

Memorandum:

Plaintiff commenced these two actions to recover damages for injuries she allegedly sustained when the vehicle she was driving was struck from behind by a vehicle driven by defendant John DiDomenico, a Monroe County Deputy Sheriff (hereafter, Deputy). Defendants moved for summary judgment dismissing the complaint and the amended complaint, inter alia, on the ground that as a matter of law the Deputy was not driving with reckless disregard for the safety of others pursuant to Vehicle and Traffic Law § 1104 (e). Plaintiff cross-moved for partial summary judgment with respect to liability, contending that the Deputy was not entitled to qualified immunity under section 1104 (e) because he was not operating a "police vehicle" within the meaning of section 1104 (c) and was not engaged in an "emergency operation" within the meaning of Vehicle and Traffic Law §§ 114-b and 1104 (a) at the time of the collision. Supreme Court erred in granting those parts of defendants' motion seeking summary judgment dismissing the complaint against defendant County of Monroe (County) and dismissing the amended complaint and in denying plaintiff's cross motion seeking partial summary judgment on the issue of liability.

The accident occurred when the Deputy received a dispatch to respond to a burglary and looked down at his mobile data terminal to ascertain the location of the burglarized premises. When he looked back up two to three seconds later, he observed that traffic was moving very slowly through the intersection that he was approaching. The Deputy immediately applied his brakes, but he was unable to avoid a rear-end collision with plaintiff's vehicle. Even assuming that the Deputy was involved in an emergency operation at the time of the collision (see Vehicle and Traffic Law §§ 114-b, 1104 [a]), we conclude that the "reckless disregard" standard of liability contained in section 1104 (e) is not applicable to this action because the Deputy's conduct did not fall within any of the four categories of privileged activity set forth in section 1104 (b).

Vehicle and Traffic Law § 1104 (a) provides that the driver of an authorized emergency vehicle involved in an emergency operation "may exercise the privileges set forth in this section, but subject to the conditions herein stated." The statute then goes on to list in subdivision (b) those privileges that the driver of an authorized emergency vehicle may exercise, i.e., the driver may (1) stop, stand or park regardless of the provisions of the Vehicle and Traffic Law; (2) proceed past a steady or flashing red light or stop sign after slowing down to ensure the safe operation of the vehicle; (3) exceed the maximum speed limits so long as he or she does not endanger life or property; and (4) disregard regulations concerning directions of movements or turning. Subdivision (e) of the statute, which exempts the driver of an authorized emergency vehicle from liability for ordinary negligence relating to his or her operation of that vehicle, specifically relates back to subdivision (b). Thus, subdivision (e) states that "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his [or her] reckless disregard for the safety of others" (emphasis added). The "foregoing provisions" referred to in the statute are the four categories of privileged activity set forth in section 1104 (b).

Therefore, in accordance with a plain reading of Vehicle and Traffic Law § 1104, the driver of an emergency vehicle who is engaged in an emergency operation may operate his or her vehicle in violation of the provisions of the Vehicle and Traffic Law so long as his or her conduct falls within one of the four categories of privileged conduct listed in subdivision (b), with two conditions. Despite the fact that the driver is privileged from having to comply with the Vehicle and Traffic Law in the four situations set forth above, he or she (1) nevertheless must operate the vehicle with due regard for the safety of others, and (2) nevertheless is liable for any injuries or consequences caused by his or her reckless disregard for the safety of others when operating the vehicle. In effect, the statute exempts a driver whose operation of an emergency vehicle falls within the four categories of subdivision (b) from the consequences of his of her ordinary negligence, rendering him or her liable only for conduct constituting the higher standard of reckless disregard for the safety of others.

Even assuming that the Deputy in this case was involved in an emergency operation at the time of the accident, we conclude that his conduct did not fall within any of the four categories of privileged conduct set forth in subdivision (b). The Deputy was merely traveling in a normal stream of traffic, driving well within the speed limit and in the proper lane of the roadway. Thus, the liability exemption contained in subdivision (e) never became applicable.

The dissent faults our analysis of Vehicle and Traffic Law § 1104 with respect to this case on several grounds. First, the dissent concludes that plaintiff for the first time in his reply brief raised the issue whether the exemption set forth in subdivision (e) applies because the Deputy's conduct did not fall within any of the four categories of subdivision (b). Thus, the dissent concludes that the issue is not properly before us. We disagree. Following defendants' assertion of the Vehicle and Traffic Law § 1104 (e) exemption, plaintiff cross-moved for partial summary judgment contending, inter alia, that the issue before the court primarily concerned the applicability of Vehicle and Traffic Law § 1104 (e). Thus, defendants were on notice that the applicability of the exemption to the case was in issue. A determination of that issue necessarily involves an examination of the circumstances under which the exemption applies, which in turn necessitates an analysis of the statutory scheme of Vehicle and Traffic Law § 1104. It consequently is difficult to see how the defense was "blind sided." Indeed, defendants' assertion of the exemption in itself was sufficient to require an analysis of the statutory scheme of Vehicle and Traffic Law § 1104, inasmuch as it would be impossible to determine whether the Deputy was exempt from liability for ordinary negligence without an analysis of the applicability of that exemption.

The dissent further faults our analysis on the ground that it allegedly is unsupported by a plain reading of the statute. In our view, it is the dissent's analysis that is unsupported by a plain reading of the statute. According to the dissent, the four categories of conduct set forth in subdivision (b) excuse a driver engaged in the emergency operation of an authorized emergency vehicle from being charged with a traffic violation or from being subject to civil liability based solely on those four categories of conduct. Thus, the dissent in effect interprets the exemption of subdivision (e) as standing separate and apart from the remainder of the statute. However, the statute is not drafted in that fashion. Subdivision (a) expressly requires that the various subdivisions of the statute be read in conjunction with each other. That subdivision refers to the privileges that the driver of an authorized emergency vehicle involved in an emergency operation enjoys, which privileges are "set forth in this section." Those privileges are then enumerated in subdivision (b). Subdivision (a) further provides that those privileges are "subject to the conditions herein stated." After listing in subdivision (b) the four categories of privileged conduct, the statute goes on to set forth the conditions to which subdivision (a) refers, and the exemption of subdivision (e) is only one of those conditions. Subdivision (e) specifically relates back to the "foregoing provisions" of the statute, and provides that "such provisions" do not protect the driver from the consequences of his reckless disregard for the safety of others. Thus, a plain reading of the statute is that subdivision (e) is a condition placed upon the exercise of the privileges afforded to a driver set forth in subdivision (b). The dissent's conclusion that the exemption covers any and all activity of the driver of an authorized emergency vehicle engaged in an emergency operation disregards the express language of the statute. Had the Legislature intended Vehicle and Traffic Law § 1104 to apply to all of the rules of the road without limitation to the four categories of section 1104 (b), it would have drafted the statute accordingly. Significantly, the Legislature did so in Vehicle and Traffic Law § 1103, which exempts all persons and vehicles "while actually engaged in work on a highway" from the Vehicle and Traffic Law provisions, except for those provisions relating to driving while intoxicated offenses. As the Court of Appeals wrote, " '[w]e have recognized that meaning and effect should be given to every word of a statute' " (Criscione v City of New York, 97 NY2d 152).

The dissent further faults our interpretation of the statute as being illogical. According to the dissent, the Legislature could not have intended that a driver engaging in less culpable conduct such as that involved in this case would be subject to liability under an ordinary negligence standard while a driver engaged in more culpable conduct, such as speeding, would be excused from ordinary negligence. We do not agree with the dissent that such a statutory scheme is illogical. As the dissent recognizes, the purpose of the exemption is to afford operators of emergency vehicles the freedom to perform their duties when responding to an emergency situation, unhampered by the rules of the road (see Saarinen v Kerr, 84 NY2d 494, 497). The four categories of privileged conduct that the statute in effect excuses from ordinary negligence constitute conduct that is essential to such an emergency response. If the driver of an emergency vehicle is engaged in "normal" driving, i.e., driving falling ...


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