Motion for summary judgment by defendant is granted in that they established that the snowplow involved in the incident was a hazard vehicle engaged in work pursuant to Vehicle and Traffic Law § 1103 (b) and the actions of the snowplow operator did not rise to the level of reckless disregard.
|Claimant(s):||CHRISTOPHER A. KRULL|
|Claimant short name:||KRULL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||CELLINO & BARNES, P.C.
BY: Michael J. Lovecchio, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 7, 2017|
|See also (multicaptioned case)|
This claim involves a motor vehicle accident which occurred at around 7:49 a.m. on February 6, 2013 when a 2000 Dodge owned by Jennifer M. Krull and operated by claimant Christopher A. Krull came in contact with a 2002 International Dump Truck (snowplow) owned by the New York State Thruway Authority and being driven by New York State Thruway Authority employee Merl Wilkins. Defendants State of New York and New York State Thruway Authority moved for summary judgment. Claimant opposes the motion.
Merl Wilkins was employed as a Thruway maintenance worker for the New York State Thruway Authority (NYSTA). At approximately 6:00 a.m. on the morning of February 6, 2013, Mr. Wilkins picked up a NYSTA snowplow from the maintenance building located at the Silver Creek toll exit. It was a cold and icy February morning. His intention was to spread salt on the New York State Thruway as needed from Silver Creek to the Hamburg Toll Plaza, turn around in the plaza, and then head back to Silver Creek. At 30 mph, it takes about an hour to travel from Silver Creek to Hamburg. Before leaving Silver Creek, Mr. Wilkins put three scoops or about nine tons of salt into his truck. According to Mr. Wilkins, there was an LED light board on the back of the snowplow and a Mars light (a rotating amber light) on top of the snowplow. Mr. Wilkins testified at his deposition that all of these lights were on as it was his normal, standard procedure to turn them on as soon as he gets into the snowplow. This was his first run from Silver Creek to Hamburg when the accident occurred. As it was his first run of the day, Mr. Wilkins was traveling eastbound in the right lane of the Thruway. Before the Hamburg toll, he stopped at the Hamburg shed on the Thruway to replenish his supply of salt.
At the Hamburg toll Mr. Wilkins would turn around and then head back to Silver Creek. Before the accident, he went through the toll barrier, salted the toll lanes and then drove onto the shoulder to wait for traffic to clear so he could make a U-turn and head westbound back to Silver Creek. Before pulling out, it was his practice to look through his rearview mirrors and windshield. As he started to pull out, he observed another vehicle coming off the ramp from the thruway. He stopped as it was his intention to let that vehicle pass. Right before the accident and while he was still stopped, Mr. Wilkins heard tires skid but did not see claimant's vehicle before impact. Mr. Wilkins was in the process of making a U-turn when the accident happened. When he left the shoulder, his plows would have been up because he was salting and his lights would have been on.
Mr. Wilkins had just finished salting the on-ramp and was continuing on his patrol when the accident occurred. Mr. Wilkins told the traffic supervisor for the NYSTA that his Mars light, rear light board and left turn signal were all activated. According to Trooper Chad Juenker, the amber lights on the snowplow were activated when he arrived at the scene of the accident. He did not know either way whether the lights were on at the time of impact.
The claimant Christopher Krull testified that he was headed to work on the morning of the accident. He first saw the snowplow before he got on the Thruway when he was driving behind it. According to claimant, he saw the snowplow before the toll and he saw it after the toll. When he approached the toll, the snowplow was off to the right. Claimant stopped completely at the toll booth to get a toll ticket. When he accelerated to leave the toll booth, he saw the snowplow on the right shoulder and moved over to the farthest left-hand lane. He moved over to allow the snowplow merging room. Claimant then saw the snowplow move. It appeared to claimant that the snowplow was attempting to merge into traffic. As claimant moved over, the snowplow turned in front of him. When the snowplow unexpectedly made a U-turn in front of him, claimant applied his brakes. According to claimant, the snowplow had an arrow board and an amber beacon, but he could not recall seeing them lit. It appeared to claimant that the blade on the snowplow was up at the time of the accident.
Summary judgment is a drastic remedy which should only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 ). The proponent of such a motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Zuckerman v City of New York, supra at 562). Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion.
Vehicle and Traffic Law § 1103 (b) provides that the rules of the road:
"shall not apply to persons, teams, motor vehicles, and other
equipment while actually engaged in work on a highway . . .
The foregoing provisions of this subdivision shall not relieve
any person, or team or any operator of a motor vehicle or
other equipment while actually engaged in work on a
highway from the duty to proceed at all times during all
phases of such work with due regard for the safety of all
persons nor shall the foregoing provisions protect such
persons or teams or such operators of motor vehicles or
other equipment from the consequences of their reckless
disregard for the safety of others."
Pursuant to Vehicle and Traffic Law § 117 -a, a snowplow is a hazard vehicle. Vehicle and Traffic Law § 1103 (b) applies to the operators of snowplows when they are "actually engaged in work on a highway" (see Ferrand v Town of N. Harmony, 147 AD3d 1517 ). This does not mean that the snowplow had to be working in a designated work area to be protected by the "reckless disregard standard" of Vehicle and Traffic Law § 1103 [b] (Riley v County of Broome, 95 NY2d 455 ).
In Wilson v State of New York, 269 AD2d 854 [4th Dept 2000], affd sub nom. Riley v County of Broome, id. at 460, the Appellate Division affirmed the dismissal at trial of a claim against the State for the actions of a snowplow operator. The Court of Appeals in Riley affirmed. In Wilson, two snowplows were operating near the intersection of Route 5 and Route 167, one behind the other. As claimant approached the intersection, the first snowplow stopped to make a wide turn, and the second snowplow made a left turn inside the first plow in order to enter Route 167. Although the driver of the second snowplow looked, he did not see claimant's vehicle and a collision occurred. At the close of proof, the State moved to dismiss, arguing that claimant failed to establish that the accident was the result of recklessness. The Court of Claims granted the motion, holding that a reckless standard applied as the snowplows qualified as vehicles actively engaged in work on a highway pursuant to Vehicle and Traffic Law § 1103 (b). This decision was affirmed by the Fourth Department in Wilson and by the Court of Appeals in Riley.
Based on the record, the Court concludes as a matter of law that defendants have met their initial burden of establishing that the snowplow was a hazard vehicle actually engaged in work on a highway pursuant to Vehicle and Traffic Law § 1103 (b) while it was in the process of making a U-turn to continue salting of the toll plaza and the Thruway. Thus, the snowplow is exempt from the rules of the road except to the extent that its operation constituted reckless disregard for the safety of others (see Curella v Town of Amherst, 77 AD3d 1301 [4th Dept 2010]).
The reckless disregard standard requires evidence that the snowplow operator acted "in conscious disregard of a known or obvious risk that [was] so great as to make it highly probable that harm [would] follow (see Ferrand v Town of N. Harmony, supra at 1518, citing Primeau v Town of Amherst, 17 AD3d 1003, 1003, [4th Dept 2005], affd 5 NY3d 844 (2005). Defendants contend that the actions of the snowplow operator did not rise to the level of reckless disregard. The Court agrees. While the actions of the snowplow operator may amount to negligence, defendants met their burden of establishing that the snowplow operator did not act with reckless disregard (see Curella v Town of Amherst, supra at 1301; Ferrand v Town of N. Harmony, supra at 1518).
In addition, no evidence has been presented as to any involvement of the State of New York. The snowplow was owned by NYSTA and the operator was employed by the NYSTA. The accident occurred within the toll plaza of the Thruway. Accordingly, the State of New York is entitled to summary judgment on this alternate ground as well.
Based on the foregoing, defendants' motion for summary judgment is granted insofar and claim no. 123747 is dismissed.
July 7, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Wendy E. Morcio dated December 23, 2016, with annexed Exhibits A-J;
2. Defendants' memorandum of law dated December 23, 2016;
3. Opposing affirmation of Michael J. Lovecchio dated February 20, 2017, with annexed Exhibits A-F; and
4. Reply affirmation of Assistant Attorney General Wendy E. Morcio, dated February 24, 2017.