KEVIN GRANT v. State of New York, Defendant. (2024)

A trial  ¹ on the sole issue of liability was conducted before this Court on June 5, 2023, via Microsoft Teams, upon the consent of all parties and counsel. Claimants  ² and Defendant each called one witness to testify.

The parties stipulated to the following facts: A motor vehicle collision occurred on Sunday, July 22, 2018, at approximately 6:52 pm, between the Claimant, Melinda Grant and Trooper Jason Nery, at the intersection of 211 and Edgewater Drive, Middletown NY. Trooper Jason Nery was acting in the scope of his employment at the time of the accident and operated a vehicle, marked as a police vehicle, owned by the State of New York.

Relevant Testimony

Claimant, Melinda Grant

Ms. Grant testified that on Sunday, July 22, 2018, at approximately 7:00pm, she was involved in a motor vehicle accident at the intersection of Route 211 and Edgewater Drive as she left the store Big Lots, to go home, which is approximately one mile away from the store (T  ³ . 17-18). She testified that during the span of a week, she drives through this intersection at least five times (Id.). She testified that on the day of the accident, there were natural lighting conditions, as the sun had not set yet (Id.). Ms. Grant testified that when exiting the parking lot at Big Lots, she stopped at the stop sign before turning onto the road and proceeded towards the intersection of Route 211 and Edgewater Drive (T. 18). She testified that there were three lanes of travel on this road, a left, middle and right lane, and she was driving in the middle lane (T.19). She went on to testify that there were no other vehicles in front of her as she approached the intersection, coming to a complete stop for approximately 15 seconds, as the light was red (T. 19, 21). She testified that the moment the light turned green, she looked both ways prior to proceeding, accelerated and began to drive forward, not hearing any emergency sirens or seeing any emergency lights. She testified that she went past two lanes (T. 23) on Route 211, when she heard a "loud bang and like a crack and then everything just went black" (Id.) because she lost consciousness and came to a few minutes later (T. 24). She testified that when she opened her eyes and looked around, she observed that the airbags deployed out of the steering wheel and the right side of her vehicle and saw smoke in the car (Id.). Ms. Grant testified that she panicked, got out of her seatbelt and started to get out of the car, when a person came over to help her to the median, and that is when she observed the emergency vehicles surrounding her (Id.). She testified that when she turned around, she observed that the whole front of her car was "taken off, [t]he headlights, the grill everything was scattered" and the front of her vehicle was pointing towards the right (T. 25). She then noticed that there was a damaged police car on the right side of Route 211 facing toward the Big Lots entrance (Id.).

Ms. Grant testified that when she initially proceeded into the intersection, her intention was to drive straight through the intersection of Route 211 and Edgewater Drive (Id.). Ms. Grant testified that Defendant's Exhibit I, depicted the resting spot of her vehicle on the day of the accident (T. 27, 29). She testified that before she proceeded into the intersection of Route 211 and Edgewater Drive and before she heard the bang and felt the crack, she did not hear any sirens or see any lights (T. 30).

On cross-examination, Ms. Grant testified that she was driving a Jeep Compass at the time of the accident (T. 33). Ms. Grant was asked a few questions to establish that she knew the laws of the road and testified that she was aware of what to do when an emergency vehicle approaches the roadway (T. 34). She testified that when stopped at an intersection and an emergency vehicle is approaching displaying signs that it is responding to an emergency, you are supposed to "wait, stop and wait" (T. 35-36). She testified that if an emergency vehicle is approaching from behind, you are supposed to move over if you can and if the emergency vehicle is going to pass through that intersection, you do not enter the intersection (T. 36) Ms. Grant testified that it is not unusual to observe emergency vehicles responding to an incident on Route 211 and she experienced this multiple times (T. 38).

Ms. Grant testified that she could not see past approximately two car lengths to her left, as she stopped coming out of the mall, facing the intersection onto Route 211's travel lanes, heading in an eastbound direction (Id.). After reviewing Defendant's Exhibit J4, Ms. Grant testified that the photograph depicted the length in which she could see the cars traveling on Route 211 (T. 42). She testified that on the day of the accident, the weather was sunny and warm with clear skies, no rain until after the accident occurred (T. 44). She testified that when she was stopped at the light and looked left, she observed vehicles entering and passing through the intersection, which eventually changed as the traffic began to stop (T. 46). She went on to testify that she observed three lanes on Route 211, the right turning lane and two lanes that proceed straight, all occupied by vehicles (Id.) and the only lane she was unable to observe was the left turning lane (T. 47).

After reviewing Claimant's Exhibit 2, a Google Maps photograph of the aeriel view of the intersection of Route 211 and Edgewater Drive, Ms. Grant agreed that the photograph depicted "the three-lane driveway with the stop bar and the crosswalk in the lower portion, that would be the driveway [she] was exiting from" (T. 48). She testified that as she was driving in the middle lane, and looking to her left, she observed five through lanes, one left-hand turning lane, three lanes proceeding straight, and "one going straight and turning right into Big Lots" (Id.). She went on to correct herself testifying that there were in fact only four lanes as she looked left on Route 211 - a dedicated left turn, the first through lane, the second through lane, and a through and turning lane (Id.). She testified that only three of those lanes were occupied, as she waited for the light to change at the intersection (Id.), and the left turning lane, the lane nearest the median, was unoccupied (T. 49). Ms. Grant testified that as she "began to move left and right" she could not see down Route 211, as three vehicles in the first three lanes prevented her from seeing other vehicles in the roadway (T. 49-50). She then testified that she recalled seeing the cars stopped when she looked, and observed a line of cars, but was unable to ascertain how many (T. 50).

Ms. Grant testified that as she was proceeding through the intersection on Route 211, she heard a bang, and felt a crack, but was unable to identify what caused that bang and never observed anything coming in her direction (Id.). She testified as she was driving into the intersection, she continued to focus forward and did not look left (T. 50-51). She testified that the windows of her vehicle were closed, the radio was off, and she could not recall if she had the air-conditioner on (T. 51). Ms. Grant testified that she did not know where Trooper Nery's vehicle came from (Id.) but saw his vehicle on the right side of Route 211 facing her vehicle and the entrance to Big Lots, as she vacated her vehicle after the accident (T. 52-53). She testified that Trooper Nery's vehicle had its headlights on (T. 53, 59).

After reviewing the eighth photograph of Defendant's Exhibit I, Ms. Grant testified that the photograph depicted the damage caused to the passenger side of Trooper Nery's vehicle, as a result of the contact with the front of her vehicle (T. 54). She testified that at the time of the accident, she was traveling less than 20 miles per hour as she took her foot off the brake and put her foot on the gas and just started to drive, traveling past two lanes, prior to the collision (Id).

On re-direct examination, Ms. Grant testified that she did not see Trooper Nery's headlights until after the accident (T. 61).

Claimants rested and Defendant put on its case-in-chief.

Trooper Jason Nery

Trooper Nery testified that he has been an investigator with the New York State Police since 2019, and has been employed by the State Police since July 2013 (T. 64). He testified that while in the police academy, he undertook an emergency response driving course (Id.) and prior to becoming an investigator, his duties and responsibilities included responding to any type of situation that requires law enforcement presence by either 911 or his local dispatcher (T. 65). He testified that he was issued a Ford Interceptor sedan as his work vehicle, to conduct traffic law enforcement (Id.) and drove this vehicle in "emergency mode" as part of his job (T. 66).

Trooper Nery testified that on the date of the accident, he received a 911 dispatch call from Orange County regarding a violent physical domestic dispute in a restaurant parking lot off of Route 211 east (T. 66-67). He explained that in between Route 211 east and Route 211 west is the City of Middletown. When he received the 911 dispatch, he was on Route 211 west on the opposite side of Middletown (T. 67). He went on to testify that in response to the dispatch he "informed Orange County 911 of his position and that [he] would be, what vehicle [he's] in, and that [he] would be en route. [He] then activated [his] emergency lights and sirens and proceeded through the city of Middletown to get onto 211 east to respond to that location" (Id.). He testified that it takes approximately five minutes in emergency operation mode to drive from 211 west to 211 east (Id.).

Trooper Nery testified that he is familiar with the intersection where the accident occurred and explained that the intersection is approximately three quarters of a mile from the beginning of Route 211 east (T.68). He testified that from where he entered Route 211 east to the accident location, he went through other signalized intersections using emergency mode (T. 68-69). He went on to testify that some of these intersections had red light designations and when approaching those intersections, he slowed down, observed the intersection and parked vehicles, made sure that the other vehicles saw him and yielded to his emergency operations and proceeded through the intersection (T. 69). He testified that he displayed his emergency operation by having his overhead and front grill lights on that flashed series of colors alternating between red, blue and white, his rear lights on, as well as his sirens (T. 69-70). Trooper Nery testified that his sirens have various modes and on the day of the accident, the mode of the sirens toggled through depending on whether or not there was a car in front of him, and if a car was in front of him, he drowned out the sirens on one pitch and switched to another in order to be easily recognized (T. 70). He testified that although he switched modes at various times, the sirens were on continuously from the moment he received the dispatch until the accident (T. 70-71).

Trooper Nery testified that as he approached the intersection of Route 211 east and Edgewater Drive, the light was initially green, and as he got near, the light turned yellow and when he was at the intersection, the light turned red (T. 71). He testified that as he was traveling on Route 211 heading eastbound and approached the intersection, the traffic was light (Id.). Trooper Nery testified that he had been on patrol in the Middletown region for at least a year prior to the accident and was familiar with the traffic conditions in that region during that time (Id.).

Trooper Nery testified that on the day of the accident, "as [he] approached the intersection [he] did notice that the light like [he] said, stated prior it did go from green as [he] got closer and went to yellow and while [he] was at it it went to red. [He] slowed down at the intersection. [He] observed vehicles both to the left intersection side and the right intersection side. They were still stopped at the intersection. As [he] approached and went through the intersection there was two vehicles to [his] right. The first one pulled out slightly as if to go but stopped, yielding to me, so [he] continued and as [he] continued the second vehicle did not stop and continued driving into the intersection and striking [him] on the rear passenger side of [his] vehicle" (T. 72). He testified that there was nothing obstructing his view that interfered with his line of sight to see Ms. Grant's vehicle as she started through the intersection (T. 73). He testified that he was able to see the full windshield of her Jeep when stopped at the intersection and simultaneously noted that his sirens were on very loud (T. 74).

On cross-examination, Trooper Nery testified that prior to the accident, he has investigated car collisions (T. 77). He testified that to become a state trooper, he went to "residential academy with other troopers in regards to learning about accidents of various types and then did a field training with another senior trooper where we responded with them whenever, in any type of situation that often included vehicle accidents" and was taught how to investigate car collisions (Id.).

Trooper Nery was shown Defendant's Exhibit C, which stated "New York State police memorandum" at the top (T. 76) and reflected that it was a memorandum from himself to Major Pierce Gallagher, troop commander (T. 78). He testified that he gave the statement that an SUV to his right blocked his view of the Jeep from his vehicle and that he actually struck the Jeep (T. 79). He also testified that he never came to a full stop before entering that intersection, but that he did slow down prior to approaching the intersection (T. 80). He went on to testify that he does not recall whether he testified at his deposition that he slowed down by pressing on the brakes or if he decelerated by taking his foot off the gas, "coasting through" as he approached the intersection (T. 81).

Trooper Nery testified that on the day of the accident, his highest rate of speed while traveling on Route 211 was approximately 50 to 60 miles per hour, in a 45 miles per hour speed limit zone (T. 83). He testified that although he was traveling above the speed limit, he does not recall whether he used his brakes while entering the intersection (Id.). He testified that he experienced three impacts during this collision, as it was a four-car accident, the first impact was with Ms. Grant's vehicle in which he described as a "hard impact" (T. 84). He testified that following that impact, his vehicle started to turn, went into the raised median at the intersection and hit a sign, (Id.) which was removed from its post, fell over and hit another car (T. 85). He went on to testify that his vehicle continued its movement forward and struck another vehicle and eventually came to a stop outside of the intersection (Id.).

He testified that prior to the accident, he has gone through the intersection before and defined it as a big intersection (T. 85). He testified that when he received the 911 dispatch, he was traveling eastbound and his final resting stop after the three impacts was in the eastbound lane facing northbound, (T. 86) facing almost the opposite direction from where he came (T. 87). He went on to testify that as he approached the intersection, which had a straight and flat road, and observed the light turn green to yellow, he simultaneously observed Ms. Grant's vehicle stopped to his right (Id.). He testified that the visibility out of his windshield was good that day and that Ms. Grant's vehicle stayed within his view from the first time he saw her until the collision (Id.) and he kept an eye on Ms. Grant and the other vehicles (T. 88). He testified that he traveled in the left lane because it is usually the safest one to travel in, the one away from any other cars at the intersection and easily viewed (T. 89).

Trooper Nery testified that he saw the first vehicle, the SUV, moving and quickly stopped signaling, indicating that the SUV saw him, so he continued through the intersection, despite being unaware of Ms. Grant's vehicle's movement (T. 88). Trooper Nery was shown his deposition and asked if recalled boxes 19 and 20 entitled Apparent Contributing Factors, on a motor vehicle accident report, which he testified he recalled (T. 92-96). He read page 61 of his deposition transcript  ⁴ to refresh his recollection on the following: "Question, does the apparent contributing factors set forth what [box] 17 translates as? Answer, yes. Question, what is that? Answer, traffic control disregarded. So, Trooper, does that refresh your recollection as to what the designation of [box] 17 means" (T. 97-98), he responded yes (T. 98). He further refreshed his recollection by reading page 62 of his deposition transcript: "Question, and the section for apparent contributing factors, does it define what a seven means? Answer, fail to or danger to yield right of way" and testified that he does not recall anything about danger to yield to the vehicle that had the right of way (T. 100).

Trooper Nery testified that Sergeant Scott arrived on scene, and he told him how the collision occurred (T. 102). He testified that on the date of the accident, it was drizzling on and off and there was precipitation on the roadway that he observed (Id.). He went on to testify that when the first impact occurred, he was on the radio listening to updates via a speaker in his vehicle (T.103). Trooper Nery testified that he does not recall whether he had both hands on the steering wheel when the impact occurred (Id.).

On re-direct examination, Trooper Nery testified that when a police vehicle is in an emergency response mode, all other traffic needs to yield the right of way to that vehicle (T. 105). He testified that operating a police vehicle in emergency mode with lights and sirens on relieves him from complying with any of the vehicle and traffic law requirements, including following a posted speed limit, passing lanes and objects such as designated traffic control devises, stop signs or stop lights and no U-turns signs (T. 105-106).

On re-cross examination, he testified that when he is in emergency mode and going against a red light he proceeds with caution (T. 106).

LAW AND ANALYSIS

The Court is tasked with determining, based upon a careful review of the testimony of the witnesses and exhibits in evidence, whether Defendant owed a duty to Claimant and if Defendant breached that duty and further the alleged negligence was the proximate cause of Ms. Grant's injuries.

Vehicle and Traffic Law [VTL] § 1104 provides drivers of "authorized emergency vehicles" engaged in an emergency operation a qualified privilege to disregard the rules of the road so long as certain safety precautions are observed (see Vehicle and Traffic Law § 1104 [b][1-4]; Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Criscione v City of New York, 97 NY2d 152 [2001]). The statute expressly permits an emergency vehicle to disregard traffic control devices, speed limits, parking rules and regulations governing the direction of travel (Vehicle and Traffic Law § 1104 [b][1-4]). The privilege afforded is a qualified one, however, permitting the imposition of liability where conduct rises to the level of recklessness (Saarinen v Kerr, 84 NY2d 494 [1994]).

In Kabir v County of Monroe, the Court of Appeals limited the application of the reckless disregard standard set forth in Vehicle and Traffic Law § 1104 (e) to "when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)" (16 NY3d 217, 220 [2011]). The Fourth Department, citing Kabir in a matter identical to the one at hand, held that a policeman's conduct in stopping and looking both ways before proceeding into the intersection and striking the [Claimant's] vehicle, was not conduct exempted from the rules of the road and that "his 'injury-causing conduct . . . is governed by the principles of ordinary negligence.' " (LoGrasso v City of Tonawanda, 87 AD3d 1390, 1390 [4th Dept 2011] [internal citation omitted].) Thus, even where an "emergency operation" exists, absent any evidence of the privileged conduct permitted by VTL § 1104 (b) such as "stopping, standing or parking in violation of the rules of the road, proceeding past a red signal or stop sign, speeding, or proceeding in the wrong direction or making an unlawful turn", the reckless disregard standard of care does not govern the driver's conduct (Gonzalez v City of New York, 91 AD3d 582, 582 [1st Dept 2012]).

This standard has been defined as "the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow and done with conscious indifference to the outcome" (Szczerbiak v Pilat, 90 NY2d 553, supra at 557; see also, Saarinen v Kerr, 84 NY2d 494, supra at 501). The purpose of such a standard is to permit operators of emergency vehicles to perform their duties and "to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop the offending driver" (Saarinen v Kerr, 84 NY2d 494, supra at 503).

There is no proof in the evidence adduced at trial demonstrating that Trooper Nery's operation of his police vehicle was an intentional act of an unreasonable character done with conscious indifference to the outcome. Trooper Nery's testimony that prior to going through the intersection he slowed down, observed vehicles both to the left and the right of the intersection stopped at their respective traffic lights, is unrefuted. The Court cannot conclude that Trooper Nery's conduct rises to the level of reckless disregard.

To establish a prima facie case of negligence, " 'a [claimant] must establish the existence of a duty owed by a defendant to the [claimant], a breach of that duty, and that such breach was a proximate cause of injury to the [claimant]' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2d Dept 2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2d Dept 2005]; see Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; Mojica v Gannett Co., Inc., 71 AD3d 963, 965 [2d Dept 2010]; PJI 2:10). "A driver is negligent when an accident occurs because he or she failed to see that which through the proper use of his or her senses he or she should have seen" (Benn v New York Presbyt. Hosp., 120 AD3d 453, 455 [2d Dept 2014], quoting Katanov v County of Nassau, 91 AD3d 723, 725 [2d Dept 1012]; see Weigand v United Traction Co., 221 NY 39, 42 [1917]; Starkman v City of Long Beach 106 AD3d 1076, 1078 [2d Dept 2013]).

Unlike ordinary negligence cases, liability cannot be imposed upon the State based upon Trooper Nery's failure to "see what is to be seen", per se, "rise to the level of reckless disregard" or conscious indifference required of the driver of an emergency vehicle in order for liability to attach (Saarinen v Kerr, 84 NY2d 494, supra at 502).

DECISION

Having carefully reviewed the credible testimony and evidence, it is clear that the State did not breach its duty owed to Claimant as it is unrefuted that Trooper Nery was driving an emergency vehicle, during an emergency situation, with its lights and sirens on, slowing down and proceeding with caution while driving through the intersection where the accident occurred. Trooper Nery was not the proximate cause of the accident, as the Court did not find Ms. Grant's testimony that she did not hear Trooper Nery's vehicle's sirens nor see its lights credible. Ms. Grant testified that when stopped at an intersection and an emergency vehicle is approaching displaying signs that it is responding to an emergency, you are supposed to "wait, stop and wait" and the Court finds here that Ms. Grant failed to comply with the requisite standard of "waiting, stopping, and waiting again" prior to proceeding through the intersection when Trooper Nery's emergency vehicle was approaching the intersection of Route 211 and Edgewater Drive.

Under the facts presented at trial, there is no basis to conclude that Trooper Nery operated his vehicle with the type of knowing disregard required under Vehicle and Traffic Law § 1104 (e) to establish Defendant's liability. Absent such showing, the Claim No. 133135 must be dismissed.

In light of the above determination, any motions made at trial upon which the Court had previously reserved, or which remain undecided are denied.

The Clerk of the Court is directed to enter judgment accordingly.

Dated: July 29, 2024

Hauppauge, New York

LINDA K. MEJIAS-GLOVER,

Judge of the Court of Claims

FOOTNOTES

1.   The Court of Claims is a court of limited jurisdiction insofar as its reach extends only to New York State and certain public authorities as defendants (see Court of Claims Act § 9; Kevin A. Reilly, Practice Commentaries, McKinney's Cons Laws of NY; NY Const Art VI, § 9). Accordingly, the caption is amended sua sponte to remove Jason M. Nery and New York State Police to reflect the only properly named defendant, the State of New York.

2.   Unless otherwise indicated, all referenced to Claimant shall refer to Melinda Grant as the claim of Kevin Grant is purely derivative in nature.

3.   "T" shall refer to Trial Transcript Page of June 5, 2023, trial date.

4.   Trooper Nery's deposition transcript is marked as Defendant's Exhibit L for identification purposes only.

Linda K. Mejias-Glover, J.