Trial decision, MVA with DOT snow plow truck.
|Claimant short name:||SUAREZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Campson & Campson
By: Paul J. Campson, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Robert E. Morelli and Antonella Papaleo, Assistant Attorneys General
|Third-party defendant's attorney:|
|Signature date:||May 2, 2018|
|See also (multicaptioned case)|
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on January 28, 2016 at approximately 10:00 p.m. when claimant's vehicle was struck by a New York State Department of Transportation (DOT) snowplow/salt spreading truck driven by defendant's agent.
Claimant, Carlos Suarez, testified that on the evening of January 28, 2016 he was driving his vehicle, a 2004 Honda Accord, eastbound on the Northern State Parkway. He described the evening as cold and the roadways as very dry and clean, without snow. He could not recall if it had snowed in the days leading up to the accident but did acknowledge that there was still some snow on the ground. At approximately 10:00 p.m. he exited the Northern State Parkway at State Route 110(1) . He described the exit ramp as leading into two lanes of traffic with a traffic light at the end. He stated that he stopped his vehicle after exiting the parkway in the right lane of traffic at a red light. He stated that there was a stopped truck next to him in the traffic lane to his left. When the light turned green, claimant made a right turn and then the truck began to make a right turn. Claimant testified that he noticed the truck getting closer to him. He thought that the truck was going to crash into him and that there was nothing he could do to avoid being struck by the truck. Claimant explained that the truck hit the rear left hand portion of his vehicle causing his vehicle to spin in front of the truck under the plow portion of the truck. He further testified that the impact sent his vehicle to the other side of the roadway where his vehicle "thankfully" did not strike a wall.
Claimant testified that he did not see any lights on the truck prior to the accident. He stated that after the accident the truck parked on the side of the roadway and turned its lights on.
Cosmo Ingenito, Jr., testified that he was employed by the DOT at the time of the accident. He stated that he had been employed at the DOT for 10 years although presently he is no longer working at the DOT. He testified that on January 28, 2016 his regular work shift was from 7:30 a.m. to 4:00 p.m., however on that date he worked overtime until midnight. He explained that his overtime responsibilities that night included driving certain roadways, such as the Northern State Parkway and Route 110, looking for icy patches to salt.
He explained that before setting out that evening he inspected and prepared his truck by checking to make sure everything on the truck was in working order. This included checking the lights on the truck. The truck he was driving that evening was a yellow 6 wheel dump truck with a plow on the front and a salt spreader in the rear. The truck had blue reflective tape as well as various lights and mirrors including a beacon light on top, spotlights, flashing lights and a sign on the back. He set forth that he turned on the truck's lights before leaving the yard and did not turn them off until he returned the truck at the end of his shift.
Mr. Ingenito testified that prior to the accident he was driving eastbound on the Northern State Parkway. He drove off the Northern State Parkway at the Route 110 exit to return to the DOT yard in Melville. He stated that he was spreading salt on this exit ramp while he drove on it. He described the exit ramp as one lane which then terminated at a traffic light with three lanes, one for turning right, one for turning left and one in the center.
Mr. Ingenito testified that right before the accident he was stopped at the red traffic light and that his truck was positioned in between the center and right lanes of traffic. He stated that there were two vehicles in front of him at that time. After the traffic light turned green and the vehicle in the right lane turned right, he made a right turn onto Route 110 to continue salting the roadway. He testified that he checked his side mirrors, windows and blind spots before making the right turn. He then felt a light bump, looked to his right and did not see anything until he observed claimant's vehicle in front of him under the raised plow. Once he saw claimant's vehicle in front of his truck, he braked and moved to the side of the road where he called his supervisor. Mr. Ingenito testified that the vehicle he struck was not one of the two vehicles he observed in front of his truck while he was waiting at the red traffic light. He also reaffirmed that he never saw claimant's vehicle until it was under the plow in front of him.
On cross-examination Mr. Ingenito testified that on the evening of the accident the roadways were wet, however at a deposition held before the trial he testified that he could not say whether the roadways were wet or dry.
Vehicle and Traffic Law §1103 (b) exempts from the rules of the road, "hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation." The operator of such vehicle while engaged in work has the "duty to proceed at all times during all phases of such work with due regard for the safety of all persons" and is not protected "from the consequences of their reckless disregard for the safety of others."
A snowplow truck that is actually engaged in work on or adjacent to a highway is a hazard vehicle within the meaning of §1103 (b) of the Vehicle and Traffic Law and as such is liable only for conduct that constitutes reckless disregard for the safety of all persons (Riley v County of Broome, 95 NY2d 455).
In regard to the standard of care to be applied in this matter, the Court finds that defendant's vehicle was assigned the duty of checking the roadways for icy patches and spreading salt where necessary at the time of the accident. The accident occurred while defendant's vehicle was engaged in carrying out his responsibilities on his assigned roadways (Riley v County of Broome, 95 NY2d 455 ; McLeod v State of New York, 8 Misc 3d 1009(A) [Ct Cl 2005]; McDonald v State of New York, 176 Misc 2d 130 [Ct Cl 1998]). Consequently, the Court finds that at the time of the accident, defendant's vehicle was actually engaged in work on a highway and that the reckless disregard standard dictated by Vehicle and Traffic Law §1103 (b) applies.
The facts established that there was an ongoing salting operation proceeding at the time of the accident. Defendant's agent did not observe claimant's vehicle in the lane of traffic next to his truck although he checked his mirrors and looked out the side window prior to turning.
The standard of reckless disregard requires "more than a showing of a lack of 'due care under the circumstances'. . . [i]t requires 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 . . . (citations omitted)" (Saarinen v Kerr, 84 NY2d 494, 501 ). The Court finds that claimant has failed to establish that defendant's agent acted in reckless disregard of the safety of others while engaged in work on the roadway.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant in this action. Accordingly the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court of Claims is directed to enter Judgment accordingly.
May 2, 2018
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims
1. Route 110 is also known as Broadhollow Road.