FLORIO v. WORDEN (2003)

 Plaintiffs commenced these consolidated actions against, inter alia, defendant State Troopers (defendants), alleging with respect to those defendants that they were negligent in failing to carry out a safe plan for the removal of a disabled vehicle that was stuck under a guardrail and in failing to safeguard oncoming traffic from colliding with that vehicle or with successive oncoming vehicles.   Defendants appeal from an interlocutory judgment on liability entered upon a jury verdict in favor of plaintiffs.   We agree with defendants that reversal is required because they were engaged in the regulation of traffic, “a governmental function undertaken for the protection and safety of the public pursuant to the general police powers” (Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 968, 665 N.Y.S.2d 613, 688 N.E.2d 487).   Plaintiffs' expert testified at trial that, in his opinion, defendants failed to exercise any judgment and their conduct was outside the realm of acceptable police practices.   The expert failed, however, to identify any specific rule or procedure that was violated, and thus his testimony was merely conclusory and failed to establish that defendants violated a clearly defined, fixed or “immutable [police] procedure[ ] that must invariably be followed” at the scene of a motor vehicle accident (Kenavan v. City of New York, 70 N.Y.2d 558, 569, 523 N.Y.S.2d 60, 517 N.E.2d 872) or that defendants' actions were other than a “matter[ ] of judgment within the ambit of ordinary negligence for which no cause of action against a municipality will lie” (id. at 570, 523 N.Y.S.2d 60, 517 N.E.2d 872;  see also Martell v. City of Utica, 184 A.D.2d 1009, 1010, 584 N.Y.S.2d 351).   Defendants are immune from liability for errors in judgment in responding to an unfolding emergency situation (see Kenavan, 70 N.Y.2d at 569, 523 N.Y.S.2d 60, 517 N.E.2d 872).  “ ‘[I]mmunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’ ” (Mon v. City of New York, 78 N.Y.2d 309, 313, 574 N.Y.S.2d 529, 579 N.E.2d 689, rearg. denied 78 N.Y.2d 1124, 578 N.Y.S.2d 881, 586 N.E.2d 64).   We therefore reverse the judgment and dismiss the amended complaints and complaint against defendants.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the amended complaints and complaint against defendants June E. Worden and Peter J. Beratta are dismissed.

MEMORANDUM: