Ambulance-Hit-Pedestrian Lawsuit Continues; “Emergency Vehicle” Recklessness Standard Inapplicable

In Benn v. New York Presbyt. Hosp., a pedestrian knockdown motor vehicle accident personal injury case decided August 6, 2014, the Appellate Division, Second Department denied defendants’ motion for summary judgment.

In this case, a 13 year-old student was struck by a city ambulance while in the middle of a crosswalk after exiting a city bus.

The hospital defendants moved for summary judgment, arguing that since the ambulance driver was responding to an emergency, he could only be held liable for the accident if he acted in reckless disregard for the safety of others pursuant to Vehicle and Traffic Law (VTL) § 1104

The City defendants moved for summary judgment, on the basis that they were entitled to absolute immunity, since traffic control is a discretionary governmental function, or, in the alternative, because they did not owe a duty to the injured plaintiff.

The Supreme Court denied both defendants’ motions, and the Second Department affirmed.

As to the hospital defendants’ motion, the law provides:

[T]he reckless disregard standard of care in [VTL] § 1104(e) only applies 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 [VTL] § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence. 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.

Applying this standard, the court held:

Here, evidence submitted by the hospital defendants in support of their motion demonstrated that the injured plaintiff entered the subject crosswalk with the pedestrian signal in her favor and was still within that crosswalk when the ambulance entered the crosswalk, upon the traffic control device turning green. Pursuant to Vehicle and Traffic Law § 1112, a pedestrian facing a steady WALK signal has the right of way (see Vehicle and Traffic Law § 1112[a]). Thus, “any pedestrians who have partially completed their crossing on the WALK or flashing DON’T WALK signal shall proceed to a sidewalk or safety island while the steady DON’T WALK signal is showing” (Vehicle and Traffic Law § 1112[c]). Moreover, Vehicle and Traffic Law § 1111(a)(1) provides that a vehicle with a green traffic light “may proceed straight through or turn right or left.” However, “[a]lthough a driver facing a steady green light is entitled to proceed, he or she has a duty to yield the right-of-way to pedestrians lawfully within a crosswalk”.

Failure to abide by the provisions set forth in Vehicle and Traffic Law §§ 1111 and 1112, which was the injury-causing conduct at issue here, is not privileged conduct pursuant to Vehicle and Traffic Law § 1104(b). As the injury-producing conduct was not specifically exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the principles of ordinary negligence apply. The hospital defendants submitted the deposition testimony of the school crossing guard and an eyewitness, both of whom testified that the ambulance did not slow down when the accident occurred, along with [ambulance driver] Weichbrod’s deposition testimony that his vision was obstructed on his right so that his view of the crosswalk was obstructed. Therefore, the hospital defendants failed to eliminate all triable issues of fact with respect to whether Weichbrod negligently operated the ambulance. Thus, the hospital defendants did not meet their prima facie burden.

For their part, the City defendants “failed to demonstrate, prima facie, the absence of a special relationship with the injured plaintiff.” Supporting this conclusion was the crossing guard’s testimony

that she observed the injured plaintiff get off the bus with her friends the morning of the accident just as the crossing guard observed every morning, that she was “[r]ight there watching” the injured plaintiff when the accident occurred, that she observed the injured plaintiff crossing Coney Island Avenue slowly with the light in her favor when the crossing guard heard the ambulance coming and knew that she “needed to stop the kid,” and that when she saw the ambulance approaching, it was moving as the other northbound vehicles were stopped, so she “blew [her] whistle,” and when the injured plaintiff failed to stop, the crossing guard put up her right hand.

The City defendants also “failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the basis that the crossing guard’s actions were discretionary” and “failed to eliminate all triable issues of fact as to whether the crossing guard’s actions constituted ministerial governmental functions.”

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