Court of Appeals Explains the “Privilege” Enjoyed by Emergency Vehicle Drivers in Personal Injury Cases

In a “typical” car accident case – i.e., one involving a collision of two cars driven by private operators – the issue is whether one of the drivers (the defendant) was “negligent”.

However, as illustrated by the Court of Appeals case of Frezzell v. City of New York (decided 11/20/14) in a case where the defendant driver was a police officer engaged in police work (over-simplifying here), the standard is higher, and requires the plaintiff to prove that the officer engaged in “reckless disregard for the safety of others while operating his vehicle.”

Here are the facts, as summarized by the court:

On September 20, 2006, around 10:00 p.m., New York City police officer Steve Tompos and his partner Richard Brunjes were patrolling in Central Park when they received an urgent radio call from a fellow officer indicating that he was engaged in a foot pursuit of a man with a gun near a public housing development a few blocks away and needed assistance. According to Tompos, within seconds of the radio transmission, Brunjes “threw the master switch” to activate the vehicle’s lights and turned on the siren. Tompos drove the patrol car from the park to Columbus Avenue and continued north against the legal flow of traffic. At the first intersection, Tompos turned left onto West 104th Street, heading eastbound on the westbound one-way street.

Plaintiff Kent Frezzell and his partner, both on-duty police officers, responded to the same radio call. Frezzell was driving his patrol vehicle westbound on West 104th Street when the vehicle operated by Tompos headed down the same street in the opposite direction. Frezzell and Tompos saw each other’s vehicles just seconds before impact and both attempted evasive maneuvers. The resulting collision caused injuries to the occupants of both cars.

The court explained the applicable law:

Vehicle and Traffic Law § 1104 grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions. But drivers of emergency vehicles are not relieved of their duty to drive “with due regard for the safety of all persons” and section 1104 does not “protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]).

This “reckless disregard” standard demands more than a showing of a lack of due care under the circumstances—the showing typically associated with ordinary negligence claims. Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome. This heightened standard is grounded in the Legislature’s recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities. This approach avoids judicial second-guessing of the many split-second decisions that are made in the field under highly pressured conditions and mitigates the risk that possible liability could “deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants. …

Whether the [reckless disregard] standard [is] met … is a fact-specific inquiry and our analysis is focused on the precautionary measures taken by [the driver of the emergency vehicle] to avoid causing harm to the general public weighed against his duty to respond to an urgent emergency situation.

The court affirmed summary judgment for defendants, concluding that defendants “met their burden of establishing that the officer’s conduct did not amount to reckless disregard of a highly probable risk of harm with conscious indifference to the outcome.” In reaching this conclusion, the court reasoned:

The evidence revealed that Tompos slowed down as he turned on West 104th Street and was driving below the speed limit on a clear and dry evening when the accident occurred. Furthermore, the testimony of Tompos and Brunjes established that their vehicle was moving at a speed between 10 and 25 miles per hour in a 30-mile-per-hour zone. Frezzell’s allegation that Tompos was traveling at a “high rate of speed” is insufficient to create a material question of fact in light of his admission that he could not estimate Tompos’s speed or “what [Tompos’s vehicle] was doing.” In addition, both Tompos and Brunjes testified as to the preventative measures Tompos took to avoid the collision, namely braking hard and veering to the side of the street. Frezzell introduced no proof contradicting these assertions. …

In the absence of any material questions of fact regarding whether Tompos was speeding in poor road or traffic conditions, was inattentive, or otherwise proceeded in an unreasonably dangerous manner without caution or care for the safety of bystanders and motorists, it cannot be said that Tompos acted with “conscious indifference to the outcome”.

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