New York State Court of Claims

New York State Court of Claims
DESTINO v. THE STATE OF NEW YORK, # 2018-053-009, Claim No. 119498

Synopsis

Following a bifurcated trial on the issue of liability, the Court finds that the NYS Trooper who collided with claimant's vehicle at an intersection was involved in an emergency operation as defined by VTL 1104 but that claimant established that the Trooper's conduct was reckless and a proximate cause of the accident. The Court apportioned 75% liability against the State and 25% liability against claimant for his comparative negligence.

Case information

UID: 2018-053-009
Claimant(s): FRANCIS DESTINO
Claimant short name: DESTINO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 119498
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: LIPSITZ GREEN SCIME CAMBRIA, LLP
BY: Gregory P. Krull, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On November 13, 2010, claimant Francis Destino was injured in a motor vehicle accident

involving a New York State Police vehicle operated by New York State Trooper Brian M. Pazderski (Trooper Pazderski). The claim alleges that the defendant failed to stop or slow down at a stop sign at the intersection of State Route 93 (Route 93) and Burch Road in the Town of Wilson, New York. The claim was filed on February 14, 2011 and the answer filed by the defendant on May 17, 2011.

The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on May 21and 30, 2018. The claimant's proof consisted of testimony from claimant, Trooper Pazderski and an expert witness, Jeffrey S. Ely. Exhibits received into evidence from claimant included a NYS Police Investigation Report, a Police Line of Duty Accident report, a NYS Police Manual sheet, vehicle repair estimates and Google maps. In defense of the claim, the State also offered the testimony of Trooper Pazderski and an expert witness, retired NYS Police Sergeant Matthew J. Daley (Sergeant Daley). Exhibits received into evidence from the State included the memorandum to the Troop Commander from Trooper Pazderski, claimant's Supporting Deposition, Niagara County Sheriff's Incident Report, and numerous photographs of the accident scene and vehicles involved. Following the trial, the parties requested and were granted additional time to obtain and review the trial transcript and submit post-trial memoranda.

TESTIMONY OF FRANCIS DESTINO

The claimant resides in Ransomville in the County of Niagara. He testified that he is familiar with and drives on Route 93 daily to get to his home and is also familiar with the section of Route 93 where the subject accident occurred. Route 93 is also known as Youngstown Lockport Road. The subject accident occurred at the T-intersection of Burch Road and Route 93. At the time of the accident, claimant resided in Lewiston and was in the process of moving to his current residence. He utilized the vehicle involved in the accident for this move, which was a 1991 Chevrolet Silverado 1500 pick-up truck (TT: 9-14).(1)

Claimant was referred to the police accident report (Exhibit XX) and recalled that the accident occurred at approximately 4:00 p.m. on Saturday, November 13, 2010. He testified that he had traveled on Route 93 between his Lewiston residence and his new residence in Ransomville one or two times earlier that day. Claimant testified that he was traveling eastbound on Route 93 as he approached the Burch Road intersection and that the speed limit is 45 mph. He testified that it had been raining throughout much of the day and had just stopped raining prior to the subject accident. Claimant described that immediately prior to the accident, the road was still wet and a heavy fog had just set in. He indicated that he started seeing fog outside the village of Ransomville and it got heavier as he approached Burch Road (TT: 15-20). Immediately prior to the accident, claimant had slowed his speed to 35 to 40 mph and described the lighting as gray and overcast. Those traveling on Route 93 have the right of way at Burch Road, which creates a T intersection where it intersects Burch Road.

As claimant approached the Burch Road intersection, he described seeing "lights flashing in the fog" on Burch Road and believed that it was a police vehicle. He estimated that the intersection of Burch Road was approximately 15 yards to his right as he traveled east on Route 93. Claimant did not hear any siren on the police vehicle. When he first saw the police vehicle, he could not estimate its speed, but stated that it took only two seconds before the police vehicle was directly in front of his vehicle (TT: 21-26). Claimant testified that the first thing he saw on the police vehicle was the reflective marking on the side door and that he also saw the officer's face staring at him. Claimant identified photo Exhibit DD as depicting the reflective tape on the side of the police vehicle. He testified that the police vehicle was traveling north from claimant's right to his left. When claimant saw the vehicle, he hit his brake pedal hard and turned his steering wheel to the right in an attempt to avoid colliding with it. Claimant described that his vehicle and the police vehicle were both still moving when the collision occurred. He then estimated that the police vehicle was going between 50 and 55 mph prior to the collision (TT: 27-30).

Claimant described photo Exhibits D, E and F as depicting the intersection and stop sign at Burch Road at the Route 93 intersection. He stated that Exhibit F showed the skid mark made by his vehicle as he braked and attempted to avoid the police vehicle. Claimant testified that immediately after he turned his steering wheel to the right that the driver's side front quarter panel collided with the police vehicle at its driver's side rear quarter panel, whereafter his vehicle continued across Route 93 until it struck and ran over the stop sign on Burch Road. Photo Exhibits O, P, V and W depict the damage to his vehicle from the collision (TT: 31-35).

Following the accident, claimant testified that Trooper Pazderski walked up to his driver side window to ask if he was all right and they then had a conversation. After Trooper Pazderski approached him, claimant got out of his vehicle. He stated that Trooper Pazderski said to him that he was sorry, that he did not see the intersection and that it had just come out of nowhere. Trooper Pazderski also stated to claimant, "this one's on me," which claimant interpreted to mean that the accident was his fault. Claimant testified that when he got out of his vehicle, it was on Route 93 facing east. The police vehicle was stopped in the eastbound lane of Route 93 and then Trooper Pazderski moved it onto Burch Road. Claimant testified that he then spoke to NYS Trooper Harmon, who took a statement from claimant (Exhibit B) that he signed (TT: 36-42).

On cross-examination, claimant testified that it was not foggy on his previous trips between Lewiston and Ransomville. He confirmed that the police vehicle he collided with was the one depicted in photo Exhibit DD. Claimant testified that when he saw the red and blue lights in the fog, he did not know for certain whether it was a police vehicle or an emergency vehicle. Although during direct examination claimant had estimated the speed of the police vehicle prior to the collision to be between 50 and 55 mph, he agreed that in his deposition he stated that he was unable to estimate its speed prior to the collision. He confirmed that from the point that he first saw the red and blue lights in the fog until the collision was approximately two seconds. He also confirmed that the reason that he could not see the police vehicle before the collision was because of the fog and that his sight distance was only 15 feet. Claimant agreed that when he first noticed the police vehicle, he would have been on Route 93 at approximately the same location that is depicted in photo Exhibit E (TT: 45-50).

TESTIMONY OF BRIAN M. PAZDERSKI

Trooper Pazderski has been employed by the NYS Police for 26 years. He testified that one of the courses he took at the State Police Academy when he was first employed in 1992 was an emergency vehicle operations course, a/k/a EVOC, which was a one week course for 40 hours. Trooper Pazderski explained that he understood the purpose of EVOC to be to train you to operate a police patrol vehicle in emergency operations with lights activated, high speed driving, evasive maneuvering, and emergency driving on wet surfaces. He stated that they were also given training during this course on the use of emergency lights and sirens. Trooper Pazderski stated that the purpose of the emergency lights and siren is to warn other people that you are coming so that they can pull over and get out of the way (TT: 53-56).

Trooper Pazderski testified that on the day of the subject accident, he was driving a Chevrolet Tahoe K9 truck for explosive detection. He was assigned as a K9 handler and a bomb technician. His police vehicle was equipped with the same emergency light and siren system as a patrol vehicle. Trooper Pazderski stated that the control for this system is called a unitrol and that it was located on the console to the immediate right of the driver's seat. The police vehicle was identified with license plate 1A81, meaning A troop, zone 1 and vehicle 81, which Trooper Pazderski also used to identify himself over the police radio. He stated that the vehicle was also equipped with an air horn that emits a loud, singular burst, which is operated from a separate button on the console. Trooper Pazderski stated that the purpose of the air horn is to get someone's attention in high traffic situations (TT: 57-61).

Trooper Pazderski testified that he was assigned to the State Police Niagara barracks and that as a bomb technician, the territory that he was responsible for covered Erie County, Niagara County and the western part of New York State east to Syracuse and Watertown. He stated that when he was not responding to a bomb call, he would perform regular patrol functions out of the State Police Niagara barracks, patrolling the upper half of Niagara County. Trooper Pazderski testified that he was patrolling the upper half of Niagara County on the day of the subject accident. He was first assigned to Niagara County when he graduated from K9 school in 2006 and was familiar with the roads within Niagara County (TT: 62-66). He testified that he was also familiar with and would regularly drive Burch Road and Route 93 on his shifts. He knew that Burch Road was a T-intersection that terminated at one end at Route 93 (TT: 67-69).

Trooper Pazderski testified that on the day of the subject accident, he was working a 7:00 a.m. to 7:00 p.m. shift. At the trial, he could not recall how long he was on Burch Road prior to the accident. During his deposition, Trooper Pazderski testified that he was on Burch Road for about one and one-half minutes. During his trial testimony, he agreed that he traveled at least one mile prior to the accident. Trooper Pazderski testified that he received a call at about 4:55 p.m. from the 911 dispatcher to provide backup to a domestic situation in Niagara County. At the time, he was heading north on Burch Road and the weather conditions were clear as it approached dusk (TT: 70-74). Referencing a Niagara County Sheriff's document, Exhibit C, it indicated that he was dispatched at about 4:53 p.m. to the domestic situation that was occurring at 3950 New Road and that there were cars on location at 4:55 p.m. (TT: 75-76). Trooper Pazderski agreed with the accident report prepared by Sergeant Harmon that the subject accident occurred at 4:55 p.m. He testified that when the subject accident occurred, he called in to report that he was involved in a property damage accident and would not be responding to the domestic situation. On Exhibit C, there is an entry regarding this call and that it occurred at 5:03 p.m. (TT: 77-78).

Trooper Pazderski testified that when the call came in from the dispatcher, he then turned on his emergency lights and increased his speed. He did not have his siren on at the time of the accident. He could not recall if he had his siren on earlier and then turned it off. Trooper Pazderski testified that he knew that the address he was responding to was 3950 New Road and that New Road ran east to west and was about 4,000 feet north of Route 93. He agreed on cross-examination that 3950 New Road was over two miles away "as the crow flies" and agreed that a siren would not be heard two miles away. He was also using a personal Garmin navigation unit to direct him to this specific location on New Road. The Garmin indicated that he should turn left at the intersection of Burch Road and Route 93 (TT: 79-85).

Trooper Pazderski stated that he was traveling about 70 mph on Burch Road and that the weather was clear and it was approaching dusk. He knew that the intersection with Route 93 was approaching and that there was a stop sign. As he approached the intersection, he observed very dense fog ahead about two to three seconds before entering it and slowed his vehicle to 60 mph. He testified that he knew he was entering very dense fog and consciously chose not to turn on his siren. Trooper Pazderski estimated that the fog began about 100 to 125 feet from the intersection. As he entered the fog, he testified that it was "like a white-out condition". He stated that he then slammed on his brakes and came to a complete stop (TT: 86-88). Trooper Pazderski identified Exhibit A as the memorandum to the Troop Commander that he prepared following the accident.

Trooper Pazderski also testified that he was interviewed by Sergeant Harmon at the accident scene and that this interview was included in Sergeant Harmon's report (Exhibit 2). He agreed that he did not previously testify that he slammed his brakes nor did he use that term with Sergeant Harmon as it was not stated anywhere in his report of their interview. Sergeant Harmon's report stated that Trooper Pazderski said to him that "with emergency lights activated when I encountered extremely heavy fog, creating near-zero visibility causing me to drive at a reduced speed. I approached the intersection of Burch Road and State Route 93 with my emergency lights still activated, proceeded to turn west on State 93 after it appeared the intersection was clear"(2) (TT: 89-93). Trooper Pazderski claimed that he was stopped at the time that the collision occurred. He testified that he did not stop before the intersection and stopped in the middle of the intersection of Burch Road and Route 93 because there were two cars approaching the intersection, claimant's vehicle and another uninvolved vehicle in the opposite direction (TT: 95, 97-98). He explained that he didn't stop at the stop sign on Burch Road because "the intersection came up very suddenly due to the fog." Trooper Pazderski agreed with claimant's counsel that he did not stop his vehicle before the stop sign and he did not make certain that the intersection was clear before entering it. He claimed that having his emergency lighting on was the best that he could do and would only state that using his siren was at his discretion and "an additional option" (TT: 98-101). When asked again later why he did not turn on the siren when he saw heavy, dense fog obscuring the intersection, he responded, "[i]t happened very quickly. I don't know. I didn't turn it on" (TT: 105).

Trooper Pazderski was also questioned about a portion of the New York State Police Manual that was received under seal regarding the basics of emergency driving. He testified that he agreed with the statement within it as to the general standard when driving and as to safety for the officer and general public.(3) He also testified that the unknown vehicle that was traveling in the opposite direction on Route 93 stopped after the accident but he never requested any identifying information from that person even though they potentially witnessed the accident. He agreed at trial that he should have stopped that individual and obtained that information (TT: 109-110). Finally, Trooper Pazderski testified in summary that it was his testimony that while going 50 mph on wet pavement at a distance of 100 to 125 feet from the intersection of Burch Road and Route 93, he was able to come to a complete stop in the eastbound lane of Route 93 immediately prior to the collision (TT: 113).

When questioned by the defense, Trooper Pazderski described the domestic incident that he was dispatched to assist with immediately prior to the accident. He stated that he had been informed by the dispatcher over the radio that the male involved was intoxicated, there were firearms on the kitchen table, and the female involved had fled to the front yard (TT: 114). None of these details were provided by Trooper Pazderski in his memorandum of November 13, 2010 to his Troop Commander, where he indicated only that "I was responding to a domestic dispute."(4) In addition, these details were not included in the NYS Police Investigation Report prepared by Sergeant Harmon, wherein the only comment was "I interviewed Trooper PAZDERSKI who stated that at about 4:55PM he was responding to assist Niagara County Sheriff's with the report of a domestic at 3950 New Road in the Town of Porter."(5) Trooper Pazderski testified that he made the decision not to activate his siren in conjunction with the emergency lighting so that he would not alert the male involved in this domestic situation and place the female in jeopardy, given the presence of firearms, stating "[s]o I need to approach silently, get there and assess. And from there I could announce my presence, but I definitely don't want to announce my presence way prior in this situation" (TT: 115). However, Trooper Pazderski later placed into question this testimony about his "decision" not to utilize his siren when in response to a question by defense counsel whether he had a chance to turn on the sirens after entering the fog, he responded "[i]t never crossed my mind. It was too fast" (TT: 119).

Trooper Pazderski testified that the reason he was not able to safely make it through the intersection of Burch Road and Route 93 without colliding with claimant's vehicle was because of the uninvolved motor vehicle on Route 93 approaching from his right. He described the fog that he encountered as similar to a white-out from snow as he went from "limited visibility to almost no visibility" and that it was denser than any fog he had ever encountered. Trooper Pazderski testified that it was probably five seconds from the point that he entered the fog until the collision, but was then reminded by counsel that he had testified at his deposition that it was no more than two to three seconds, to which he responded "that's entirely possible" (TT: 117-118). Trooper Pazderski knew that the intersection with Route 93 was directly ahead, that it was a T-intersection, and that regardless of the fog, he would have to slow down to make a left turn. He testified that as he was in an emergency operation, he believed he had the right to travel through the stop sign without stopping. He agreed that he first entered the fog 125 feet before the intersection and that he saw no traffic on Route 93 until he impacted with claimant's vehicle. Trooper Pazderski then testified that the time period from his first observation of traffic on Route 93 until the impact with claimant's vehicle was one to two seconds (TT: 119-121).

Following the collision, Trooper Pazderski testified that he spoke to claimant and asked if he was all right and claimant responded that he and his dog in the vehicle were fine. He also advised claimant that he was going to call and get his supervisor to come out to the accident scene and that this process would take some time. He did not recall stating to claimant that he was surprised that the intersection had come up or that he never saw the intersection. Finally, Trooper Pazderski stated that his vehicle did not leave any skid marks on the road (TT: 122-124).

On redirect examination by claimant's counsel, Trooper Pazderski reiterated that prior to impact he brought his vehicle to a complete stop with his foot on the brake. He testified that when the impact to the driver's side rear quarter panel occurred, his vehicle moved slightly, only inches and his tires left no skid marks (TT: 124-126). Trooper Pazderski agreed that using his siren under these circumstances would be consistent with the basic principle of emergency driving, i.e., to drive safely. When asked if using his siren at the intersection at that time and under those circumstances would have been consistent with the state police manual, he replied that in hindsight, having a siren on at that intersection would have been beneficial but that because of what he was responding to at that time, he did not turn it on (TT: 135-136).

TESTIMONY OF JEFFREY S. ELY

Jeffrey Ely testified that he is a senior investigator with Avalon Accident Reconstruction, a company which performs various types of investigations primarily for attorneys in litigation. Ely has been with Avalon for the past two years and joined them in November 2016 after retiring from the Erie County Sheriff's Department. He has 28 years of law enforcement experience, 15 of which were involved with the investigation of motor vehicle accidents and performing accident reconstruction for the Erie County Sheriff's Department (TT: 138-139). Ely also related his training and experience in accident reconstruction (TT: 144-147).(6)

Ely testified that as part of his law enforcement training he also participated in EVOC, which included instruction on the proper use of emergency lighting and sirens. He stated that there are circumstances where you would use one or both and that this determination is usually based upon departmental policy and the judgment of the individual officer driving the police vehicle. Ely testified that as a law enforcement officer, he has patrolled and responded to calls in dense fog and has done so utilizing sirens. He stated that the reason for using a siren in fog is that it can alert other vehicles of your presence or approach when road visibility is low (TT: 141-144).

Ely was then questioned about his investigation of the subject accident and the documents provided that he reviewed as part of his investigation (TT: 149-153). He was referred to photo Exhibit F, which he described as depicting Route 93 facing east at the intersection with Burch Road and that his photograph shows a tire skid mark from the right front tire and the left front tire of claimant's vehicle (TT: 154-155). Ely concluded from his investigation that there were no skid marks from Trooper Pazderski's vehicle (TT: 156-157). He also discussed his research of the vehicle stopping distance of a 2006 Chevrolet Tahoe like the one driven by Trooper Pazderski, testifying that he utilized this information and a mathematical formula to determine the speed at which Trooper Pazderski's vehicle was decelerating as he applied the brakes. He also testified that as the roadway was wet that this condition was also incorporated into his calculation.

Ely concluded that Trooper Pazderski slowed from an initial speed of about 70 mph down to 50 to 60 mph in two to three seconds, at which point he entered the dense fog. Trooper Pazderski's testimony was that he was then 100 to 125 feet from the intersection. Using a mathematical calculation, Ely testified that at the speed he entered the fog, it would take 211.73 feet to bring the police vehicle to a complete stop. He also calculated that if Trooper Pazderski had reduced his speed to 50 mph when he entered the fog, his braking distance would be 147 feet. Either way, Trooper Pazderski would not have been able to come to a complete stop in the remaining 100 to 125 feet. Ely concluded based upon Trooper Pazderski's deposition testimony and his mathematical calculations that Trooper Pazderski would have needed to be traveling at a speed no greater than 41 to 46 mph as he entered the fog in order to be able to come to a complete stop at the intersection (TT: 157-167). Ely also concluded based upon Trooper Pazderski's testimony that he would have traveled between 22.04 and 111.73 feet beyond the intersection of Burch Road and Route 93 before coming to a complete stop, placing him over the center line of Route 93 and into the westbound land. Ely testified that based upon his evaluation of the photo exhibits depicting the damage to the two vehicles, that the collision occurred at an angle of approximately 50 to 60 degrees. This, Ely based upon the visible scrape marks on both vehicles indicating that both vehicles were in motion as the collision occurred. Ely testified that if this had been a true 90 degree angle accident with Trooper Pazderski stopped in the eastbound lane, there would not be any visible scrapes and there would be more visible imprints of claimant's vehicle on the side of the police vehicle. From the photographic evidence, Ely concluded from his evaluation of the photographs that both vehicles were moving at the time of impact (TT: 168-170).

Ely then referred to four photo exhibits to support his opinion that both vehicles were moving at the time of impact. He testified that photo Exhibit TT shows the rear bumper of the police vehicle pushed away from the back and towards the center, indicating an angular collision with the vehicles moving. He also testified that photo Exhibit UU shows the driver side of the police vehicle with damage to the rear bumper and no damage to the rear tire, indicating that the impact occurred towards the rear of this vehicle as it was moving across claimant's vehicle at the time of impact. He testified that photo Exhibit P shows extensive damage to the front bumper and quarter panel on the driver side of claimant's vehicle. What Ely found to be significant is that the front left fender was pushed away from the vehicle, again indicating that the police vehicle was moving from right to left across the front of claimant's vehicle. Finally, in photo Exhibit V, Ely found two significant findings, the first being the way that the sheet metal bent out at an angle. This he stated demonstrated motion both from the claimant's vehicle going across the police vehicle and at the same time, the police vehicle going across the claimant's vehicle. He emphasized that if the police vehicle was standing still as alleged by Trooper Pazderski and was then struck by claimant's vehicle, the police vehicle would have rotated counterclockwise due to the force placed on the rear quarter panel of the police vehicle, then ending up in a westerly direction on Route 93 which it did not. In addition, Ely testified that the significance of Trooper Pazderski's testimony that his foot was on the brake at point of impact is that if it were, there would have been tire scuff marks in the roadway caused by the tires traveling vertically across the road surface. Ely confirmed in his testimony that there were no photos that show any such scuff marks on the surface of Route 93 (TT: 170-175). Ely's conclusion was that the photographic evidence of the physical damage to both vehicles establishes that they were both in motion at the time of impact, i.e., the police vehicle was not stopped as alleged by Trooper Pazderski (TT: 176-177).

Ely also opined about the use of a siren in fog under the particular circumstances faced by Trooper Pazderski with domestic situations. It was Ely's opinion as a former law enforcement officer with experience driving under these conditions that he would have used a siren as he approached Route 93. He testified that he would have had it on even prior to the Route 93 intersection in that there was a side street off Burch Road en route to the T-intersection. Ely also testified that if Trooper Pazderski was concerned that the siren would alert the male involved in the domestic situation on New Road, Trooper Pazderski had two alternatives. First, he could have utilized the air horn, which would provide short blasts to alert vehicular traffic on Route 93. The other alternative would have been for Trooper Pazderski to come to a complete stop at the intersection to make certain Route 93 was clear before entering and turning left (TT: 178-181).

On cross-examination, Ely confirmed that photo Exhibit F shows tire skid marks of the driver and passenger side tires on claimant's vehicle. He reiterated that it is difficult to determine the exact point of impact from the photographs but that it was his belief that the impact occurred on the right side of the eastbound lane of Route 93. Ely stated that the impact took place before the skid marks shown in photo Exhibit F. He testified that the skid marks did not represent claimant braking but that his vehicle was skidding and continued forward after impact, until it came to a stop. He also described on photo Exhibit F where there is evidence of skid marks showing that claimant was braking prior to impact. Ely testified that average normal reaction time is 1.75 seconds and that claimant would have taken this amount of time to react to the lights on the police vehicle ahead of him in order to begin braking (TT: 182-186). As to his opinion that he would have used a siren under these particular circumstances, Ely was not able to point to any authoritative manual, book or policy that required Trooper Pazderski to utilize the siren under the circumstances. Instead, he referred to his teaching in EVOC that the best practice is to drive, to arrive and use all tools that you have available to you at the time (TT: 186-187).

TESTIMONY OF MATTHEW J. DALEY

Sergeant Daley retired from the NYS Police on February 27, 2018. Immediately prior to his retirement, he was assigned to the NYS Police Academy (Academy) as the division safety officer. In this position he was in charge of the driving program at the Academy, teaching the recruits how to drive in basic school, and putting together and implementing any in-service driving programs.(7) Sergeant Daley became an EVOC instructor in 1999. As part of his duties, Sergeant Daley trained officers in the use of emergency lights and sirens. As such, he was familiar with emergency operation training and described emergency operation as encompassing any type of emergency police response (TT: 211-215).

Sergeant Daley was retained as an expert witness for the State and was provided with the deposition transcripts of Trooper Pazderski and claimant, as well as the photo exhibits, reports and other exhibits and was to provide his opinion as to whether Trooper Pazderski complied with the policies set forth in the NYS Police manual (TT: 217). His opinion was that Trooper Pazderski followed all state police regulations and Vehicle & Traffic Law 1104 and that the collision was his fault or partially his fault, but he did not believe that his actions were reckless (TT: 226-227). Sergeant Daley stated his opinion that Trooper Pazderski followed and was in compliance with all procedures in the use of emergency lighting and whether or not to use a siren. He also opined that due to the nature of the call regarding a domestic situation that it warranted an emergency response. It was Sergeant Daley's opinion that he was not required by law to use a siren nor would he be required to do so by state police regulations in this particular instance. Sergeant Daley also stated that once entering the fog, he believed that Trooper Pazderski had an opportunity to use the siren but that he was not reckless by not engaging it (TT: 227-229 and 231).

On cross-examination, Sergeant Daley confirmed that in forming his opinion as to the speed of Trooper Pazderski's vehicle on Burch Road and when he entered the intersection of Burch Road and Route 93, he did not have the black box information. Sergeant Daley stated that according to Trooper Pazderski's deposition testimony, his vehicle was stopped at the moment of impact and that he believed this was consistent with what he had reported immediately following the accident, referring to the NYS Police Memorandum of Trooper Pazderski (Exhibit A). Sergeant Daley then agreed that nowhere within Exhibit A does Trooper Pazderski state that he was stopped at the time of the collision. Sergeant Daley also agreed that nowhere in the report of the investigation of the accident performed by Sergeant Harmon, Exhibit 2, does it state that Trooper Pazderski ever told him that he was stopped prior to the collision. Sergeant Daley then agreed that other than this statement by Trooper Pazderski in his deposition, there is no document that states that he was stopped immediately prior to the collision (TT: 242-245).

Sergeant Daley was also questioned about Trooper Pazderski's failure to obtain the name and a statement from the driver of the alleged uninvolved vehicle that had been traveling west on Route 93 at the time of the subject accident. He agreed that the existence of this other vehicle was not mentioned in either of the contemporaneous reports, i.e., Trooper Pazderski's memorandum and Sergeant Harmon's investigation report.(8) Once again, Sergeant Daley agreed that the only place where this was mentioned was in the deposition of Trooper Pazderski after the lawsuit began (TT: 245-247). Sergeant Daley also agreed that Trooper Pazderski could have stopped before entering the intersection at Route 93 and that he could have initiated the siren or horn prior to entering the intersection (TT: 263-264). He also agreed that claimant took evasive action to avoid the collision when he saw Trooper Pazderski's vehicle. Finally, Sergeant Daley agreed that there were no tire skid marks left by Trooper Pazderski's vehicle (TT: 266).

LAW

The law recognizes that drivers of authorized emergency vehicles are responsible to respond quickly to situations involving the safety or preservation of life and property in the enforcement of criminal laws. The Legislature enacted Vehicle and Traffic Law (VTL) 1104, which provides at VTL 1104 (b) that special driving privileges exist when those drivers are involved in an emergency operation, including the ability to drive through red lights and stop signs, exceed the speed limit and disregard regulations governing the direction of movement or turning as provided for in the VTL. In addition, police vehicles are statutorily exempted from the requirement that audible signals be emitted from the vehicle when involved in an emergency operation and in motion (VTL 1104 [c]).

The Court of Appeals has held that liability may not be imposed against a driver involved in an emergency operation unless the driver's conduct rises to the level of recklessness (Saarinen v Kerr, 84 NY2d 494, 497 [1994]). The legal standard for recklessness or reckless disregard for the safety of others requires more than a showing of a lack of "due care under the circumstances" which is the standard for a finding of liability in an ordinary negligence action (Saarinen, supra at 501). In order for liability to attach predicated on a violation of VTL 1104 (e), it has been held that "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" (Frezzell v City of New York, 24 NY3d 213 [2014], quoting Prosser & Keeton, Torts 34 at 213 [5th ed]). This standard is required to avoid "judicial second-guessing" of the many split second decisions that are made by law enforcement or other emergency personnel in high pressure situations and to mitigate the risk that the potential for liability when doing so would deter them from acting decisively and taking

" 'calculated risks in order to save life or property or to apprehend miscreants' ". (Frezzell, supra at 217).

ANALYSIS

Upon review and consideration of the testimony and evidence presented at trial, I find that Trooper Pazderski was involved in an emergency operation as defined by VTL 1104 and as such, liability may be imposed only if his conduct under these facts and circumstances rises to the level of recklessness. Upon listening to claimant, Trooper Pazderski and the other witnesses who testified at trial and observing their demeanor while doing so, and evaluating all of the exhibits received in evidence, it is the opinion of this Court that the State is liable to claimant as the proof established that Trooper Pazderski's conduct was reckless and a proximate cause of the subject accident. In arriving at this decision, I did not find Trooper Pazderski to be a credible witness. I found his responses to questioning by claimant's counsel to be evasive at times and inconsistent with other evidence, in particular, with the two reports prepared immediately following the subject accident and with the physical damage to the vehicles involved as depicted in the photograph exhibits and the testimony by claimant's expert, Jeffrey Ely, whose testimony I found credible and convincing.

Trooper Pazderski's credibility was diminished by four significant inconsistencies between what he testified to at trial and what was reported by him immediately following the subject accident to his Troop Commander(9) and to Sergeant Harmon, the investigating officer.(10) The first inconsistency is that Trooper Pazderski stated in his report that "near-zero visibility causing me to drive at a reduced speed"(11) and stated to Sergeant Harmon that "he was traveling at a substantially reduced speed due to the extremely dense fog that had settled into the area at the time of the call."(12) At trial, Trooper Pazderski did not testify consistent with those reports as he testified that after receiving the call he increased his speed to 70 mph and only slowed to 60 or no slower than 50 mph in the two to three seconds that elapsed before he entered the fog bank. Trooper Pazderski testified that once in the fog bank, he knew that he was only 100 to 125 feet from the intersection and then slammed his brakes on wet pavement and continued into the intersection where he confronted and collided with claimant's vehicle.

The second inconsistency relates to how Trooper Pazderski reported proceeding from the intersection of Burch Road onto Route 93. In his report, Trooper Pazderski infers that he was not only traveling slowly but that he had stopped and waited for the intersection to clear. In his report, he states that he was driving "at a reduced speed . . . and proceeded to turn west on St-93 after it appeared the intersection was clear"(13) and reported to Sergeant Harmon that "he slowed, and then entered the intersection after he thought traffic was clear."(14) At trial, Trooper Pazderski testified quite differently. As stated above, he testified that he had slowed only to 50 mph in the fog bank and that he was then 100 to 125 feet from the intersection. He also testified that "the intersection came up very suddenly" and that he slammed on his brakes. Importantly, Trooper Pazderski conceded that he did not stop at the stop sign and did not make certain that the intersection was clear before entering it.

The third inconsistency is that neither Trooper Pazderski's memorandum nor Sergeant Harmon's report state that the police vehicle was brought to a complete stop in the eastbound lane of Route 93 immediately prior to the collision. In his report, Trooper Pazderski states that as he entered Route 93 he was unable to see claimant's vehicle approaching the intersection because of the dense fog and the onset of darkness. As he entered the intersection, he saw a flash of lights from headlights to his left and the collision with claimant's vehicle occurred. Sergeant Harmon's report states that as soon as Trooper Pazderski entered the intersection, he saw a flash from the headlights of claimant's vehicle and immediately felt the collision.(15) However, at trial Trooper Pazderski was emphatic that his vehicle was stopped at the time the collision occurred. He claimed that he stopped in the middle of the intersection because a second vehicle was approaching from the opposite direction, traveling westbound at the same time. The fourth inconsistency relates to this second vehicle. It is not stated anywhere in Trooper Pazderski's memorandum or in Sergeant Harmon's report that there was another vehicle traveling in a westbound direction on Route 93 that forced him to stop in the eastbound lane. Furthermore, although Trooper Pazderski testified that this supposed second vehicle stopped after the accident, contrary to protocol he never requested any identifying information from the driver, even though he or she was a witness to this accident.

In contrast to Trooper Pazderski, I found the claimant to be a credible witness. Claimant testified that while driving eastbound on Route 93, he first observed what he believed to be either a police vehicle or an emergency vehicle with red and blue emergency lights flashing and no siren approximately 45 feet to his right on Burch Road as he neared the intersection. On both direct examination and cross-examination, he testified that only two seconds elapsed from the time of this first observation to the impact or collision. Claimant's expert, Jeffrey Ely, testified on cross-examination that average normal reaction time is 1.75 seconds and that claimant would have taken this amount of time to react to the emergency lights and to begin braking with any evasive action. From claimant's testimony, the physical evidence depicted in the photograph exhibits and Ely's testimony concerning that physical evidence, I find that claimant swerved to his right prior to impact in an attempt to avoid the collision and struck the stop sign at the intersection of Burch Road and Route 93 before coming to a stop. I also find from the photographic evidence and Ely's testimony concerning same that contrary to Trooper Pazderski's testimony, the police vehicle was not stopped and that both vehicles were in motion at the time of impact. I also find that claimant was braking immediately prior to impact from a speed of 35 to 40 mph and had only two seconds to react after seeing the emergency lighting on the police vehicle. As such, I find that claimant had an insufficient amount of time to bring his vehicle to the side of the road and to a full stop in accordance with VTL 1144. I also find that Trooper Pazderski had slowed his vehicle from 70 mph to approximately 50 mph at the point that he entered the fog bank and that he knew it was then only 100 to 125 feet until he reached the intersection with Route 93. I find based upon the testimony of Ely that at this speed, Trooper Pazderski had insufficient time to come to a full stop as he alleged at trial. Accordingly, I find that the police vehicle was still moving when the collision occurred in the eastbound lane of Route 93.

With respect to the issue of whether Trooper Pazderski should have used his siren prior to the accident, he testified at trial that he did not do so out of concern for how the male involved in the domestic situation might react. However, I did not find his testimony credible on this issue and that this statement did not reflect his state of mind immediately prior to the accident. I found his response to the question of whether he had sufficient time to consider using his siren to be particularly enlightening on this issue. Trooper Pazderski's response to the Assistant Attorney General's question of whether he had a chance to turn on the siren was that, "it never crossed my mind. It was too fast" (TT: 119). However, I do not find that Trooper Pazderski's failure to use his siren was contrary to state police regulations. In this regard, I agree with the testimony provided by defendant's expert, Sergeant Daley, that Trooper Pazderski was not mandated by law or NYS Police policy to use his siren.

I do find that Trooper Pazderski demonstrated reckless disregard for the safety of others based upon his continued high rate of speed as he approached the intersection on wet pavement in dense fog as night approached and for his failure to stop and be certain that the intersection was clear before turning left onto Route 93. I find that Trooper Pazderski was in an emergency operation and that under normal circumstances, he had a statutory right to travel in excess of the speed limit and based upon his training and experience, he also could determine whether to use his emergency lighting without the further assistance of a siren as a means to alert other drivers to his presence. However, the circumstances present that evening were not normal and the dense fog ahead was clearly visible as he continued on Burch Road towards Route 93. In the two to three seconds Trooper Pazderski had to reduce his speed from 70 mph before entering the fog, he knew that once in the fog bank, he was only 100 to 125 feet from the intersection. If Trooper Pazderski had prudently desired to stop at the intersection and make certain that Route 93 was clear before entering and continuing on, he clearly had time to do so.

It is the finding of this Court that Trooper Pazderski had no intention of stopping at the stop sign on Burch Road and that despite the existence of heavy fog and near zero visibility, he intended to slow only enough to enable his police vehicle to negotiate a sharp left turn and continue into the intersection with Route 93. Without the presence of dense fog, the photographs taken subsequent to the accident indicate that Trooper Pazderski would have been able to observe vehicular traffic on Route 93 in both directions as he approached, however, the presence of dense fog gave him no ability to do so that evening and as such, it was recklessness to proceed blindly through a stop sign onto Route 93 without first determining whether vehicles were approaching in either or both directions. Instead, knowing that he was unable to see any approaching vehicles on Route 93 and that approaching vehicles could not see him due to the fog and near zero visibility, Trooper Pazderski drove in an unreasonably dangerous manner by failing to reduce his speed sufficiently before reaching the intersection and then proceeding without stopping at the stop sign or without being certain that the intersection was clear for him to safely enter Route 93, an act that would have only delayed his response to the domestic situation by mere seconds. Accordingly, upon weighing the evidence and considering all of the testimony, I conclude the claimant has established by a preponderance of the credible evidence that the State is liable as Trooper Pazderski acted with reckless disregard for the safety of others and his actions were a proximate cause of the subject accident and the ensuing injuries to claimant (see Baines v City of New York, 269 AD2d 309 [1st Dept 2000]).

As to the issue of comparative negligence, I also find that claimant must bear responsibility for his injuries. CPLR 1411 provides that in any action to recover damages for personal injury, the culpable conduct attributable to the claimant, including contributory negligence, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. I find that the evidence at trial established that claimant first saw the police vehicle two seconds prior to the collision and that he did not have sufficient time to pull over and stop as required by VTL 1144. In the limited time claimant had upon seeing the emergency lighting, he did attempt evasive action to prevent a collision with the police vehicle. However, the evidence also established that claimant was aware that the fog was becoming more dense as he traveled east on Route 93 and he could see only 15 feet in front of him. I find that claimant only slowed his vehicle from the 45 mph speed limit to 35 to 40 mph and that the speed of his vehicle was too fast under the conditions present and taking into account the actual or potential dangers existing as he approached the Burch Road intersection in violation of the statutory standard of VTL 1180 (a) and (e). I therefore conclude based upon the evaluation of all proof offered at trial that liability should be apportioned between the parties with 75% liability against the State and 25% liability against claimant for his comparative negligence.

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.

September 10, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. References to the trial transcript will be made with the designation "TT" and the page number(s).

2. Exhibit 2.

3. Exhibit 4 was received into evidence under seal. In addition to this exhibit, pages 108 and 109 of the official trial transcript where this procedure is identified and discussed in detail shall also be kept under seal.

4. Exhibit A.

5. Exhibit 2.

6. Jeffrey S. Ely's curriculum vitae was received into evidence as Exhibit 5. Mr. Ely also testified concerning his specialized education and training, as well as teaching (TT: 148-149).

7. Sergeant Daley's training and qualifications as set forth in his curriculum vitae was reviewed and received into evidence as Exhibit YY (TT: 211-216, 269).

8. Exhibits A and 2.

9. Trooper Pazderski's memorandum to the Troop Commander of Troop A dated November 13, 2010 was received into evidence as Exhibit A.

10. The Investigation Report of Sergeant Harmon was received into evidence as Exhibit 2.

11. Exhibit A.

12. Exhibit 2 at page 4, paragraph 3.

13. Exhibit A.

14. Exhibit 2, paragraph 3.

15. Exhibit A and Exhibit 2, page 2 at paragraph 3.