|Claimant short name:||GARMLEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ROBERT A. BECHER, ESQ.|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 18, 2019|
|See also (multicaptioned case)|
Claimant seeks compensation for injuries he sustained when his utility terrain vehicle (UTV) collided with a pickup truck operated by Forest Ranger Joseph C. Hess in the Pittstown State Forest on June 30, 2016. The trial of liability on this claim was conducted on April 16 and April 17, 2019 in Albany, New York. Claimant testified and also presented the testimony of the following witnesses: Daniel Morell, who was a passenger in claimant's vehicle; Forest Ranger Joseph C. Hess; New York State Police Investigator Sean Ryan, who investigated the accident; and Alden Gaudreau, a professional engineer (PE) licensed in New York, as his expert. Defendant called no witnesses. Numerous documentary and photographic exhibits offered by the parties were received into evidence. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, all of the other evidence received at trial, the applicable law, and the parties' post-trial submissions, the Court concludes that defendant is liable to claimant for his injuries and that claimant's negligence also contributed to the accident.
Claimant testified that after he left his place of work at 7:00 p.m. on June 29, 2016, he returned home, "rode around a little bit" on his Polaris 900 RZR UTV (T1:23),(1) and drove his UTV to a friend's house, where he picked up another friend, Daniel Morell, at about 8:30 p.m. Claimant testified that he then drove Morell and himself to another friend's house, arriving at approximately 9:00 p.m. Claimant testified that he and Morell left his friend's house "[a] little over an hour" later, after claimant had consumed two beers (T1:25). Claimant eventually proceeded westbound on State Fire Lane Road,(2) a wooded and unlit dirt road in the Pittstown State Forest. Claimant described State Fire Lane Road as "a single-lane road" (T1:20) that was narrow - claimant estimated it was approximately twelve feet wide - with no shoulder. Claimant testified that oncoming vehicles would either have to slow down almost to a stop in order to pass each other (see T1:21, 57), or pull off onto portions of the road that had a larger shoulder or a pull-off area. Claimant testified that he was very familiar with State Fire Lane Road, having operated his UTV on it "all the time" (T1:19), and that the maximum speed he could travel on that road in a UTV was between 25 and 30 mph. Claimant testified that "you can't drive fast on [State Fire Lane Road]" because it was "windy" and riddled with "bumps" and "big potholes" (T1:27-28) and that he would drive slower on State Fire Lane Road at night. Claimant testified that his headlights and an LED light bar that was affixed to the roll bar of his UTV were illuminated as he drove down State Fire Lane Road on June 30, 2016.(3)
Claimant testified that as he crested a "blind hill" on State Fire Lane Road (T1:32) at between 25 and 30 mph (see T1:46), he saw in front of him on the downslope of the hill a Ford F-250 pickup truck that was operated by Forest Ranger Joseph Hess. Claimant testified that Ranger Hess's truck did not have its headlights illuminated, but its emergency roof lights were on. Claimant testified that as soon as he saw Hess's vehicle, he hit the brakes "as hard as [he] could" (T1:46), but he did not have time to stop his UTV, and the two vehicles collided head-on approximately two to three seconds after claimant's UTV crested the hill (see T1:46). Claimant testified that Ranger Hess's vehicle was approximately 100 feet from the crest of the hill and that the collision occurred between two to three seconds after he crested the hill. Although claimant testified at his examination before trial (EBT) that he believed that Ranger Hess's vehicle was moving toward him at 30 mph, he testified at trial that "everything happened so fast" and that "it's hard to exactly say how fast [Ranger Hess] was going, or if he was completely stopped" (T1:60-61). Claimant testified that immediately after the accident, he saw that Ranger Hess's truck also had its parking lights on (see T1:58-59).
Morell testified that State Fire Lane Road was an unpaved dirt road about the width of a driveway. Morell testified that claimant's UTV hit a truck head-on just after cresting a hill on State Fire Lane Road and that the truck was sitting in the middle of the road with all of its lights off at the time of the collision (see T1:93-94, 95). Morell estimated that Ranger Hess's vehicle was only 25 feet from the crest of the hill and that the accident occurred "[s]econds" after claimant's UTV crested the hill (T1:93). Morell testified that Ranger Hess turned on his emergency roof lights after the collision (see T1:94). Morell testified that he did not know how fast claimant was driving at the time that the UTV crested the hill. According to a July 1, 2016 memorandum prepared by Ranger Hess, Morell stated to Ranger Hess after the accident that the UTV was traveling "at about 40 mph when they crested the hill" (Claimant's Exhibit 2, p. 4; see T1:98).
In June 2016, Ranger Hess was employed by the Department of Environmental Conservation and was assigned to all of the towns in Rensselaer County, which included the Pittstown State Forest. Ranger Hess testified that he was familiar with State Fire Lane Road, having driven on it on a weekly basis, and he agreed that it was a narrow, "single-lane dirt road with occasional wider stretches" and that it was about the width of a driveway (T1:105). Ranger Hess testified that there were areas where two vehicles could pass each other if they slowed down and were careful and other areas where one vehicle would have to pull off to the side of the road to allow another to pass. Ranger Hess testified that prior to the collision he was traveling eastbound on Fire Lane Road patrolling for illegal campers in the woods and illegal motorized use in the park. Ranger Hess testified that he was driving at approximately 5 mph as he proceeded up the hill toward the site of the collision and that the stretch of road where the collision occurred was a straightaway of approximately 300 feet. Ranger Hess testified that approximately 30 yards before he reached the site of the collision with claimant's UTV, he passed a pull-off area where he had parked his vehicle in the past (see T1:124-125). Ranger Hess testified that he had his headlights and his "alley lights"(4) illuminated and that he would not have turned off the lights of his vehicle to conceal himself from illegal campers or motorists.
Ranger Hess testified that as he patrolled, he looked to the left and right and at some point he looked forward and "saw lights shining off the underside of the leaves [of the trees alongside the road] . . . that indicated that there was a vehicle coming in the other direction" (T1:125). Ranger Hess testified that:
"At that point, when [he] realized there was another vehicle coming, [he] put [his] foot on the brake to stop, because [he] didn't want to keep going, and almost as soon as [he] did that, . . . [he] reach[ed] down for the light switch for the overhead lights with [his] hand, and as [he] was doing that, [he] looked up and [he] saw a UTV come flying over the crest of the hill very quickly. . . And then the UTV hit [his] vehicle"
(T1:125-126). Ranger Hess testified that he turned on his overhead emergency lights as claimant's UTV crested the hill, a split-second before the impact. Ranger Hess testified that he stopped his vehicle in the middle of the road because he expected that when the oncoming vehicle saw him it would stop and pull over because it had a wider spot at the crest of the hill where they could pass one another. Ranger Hess testified that he did not have time to pull his vehicle over to the side of the road, that there was no shoulder where he stopped, and that the UTV could not have passed by him without going off the side of the road. Ranger Hess clarified that he did not stop to allow the other vehicle to pass him but rather "because [he] didn't want to have a collision" (T1:130). He explained that he felt that "the safest thing that [he] could do was just stop and see what was coming over the road" and that he "didn't have time to do anything but that" (T1:131). Ranger Hess testified that the collision occurred approximately 120 to 130 feet from the crest of the hill and about one second after he stopped upon seeing the lights of the oncoming UTV, and he stated that "it was pretty instantaneous" (T1:127). Ranger Hess testified that he did not know how fast claimant's UTV was traveling before the collision.
New York State Police Investigator Sean Ryan(5) was dispatched to the accident scene to investigate the collision. Investigator Ryan testified that he parked his vehicle behind - or to the west of - Ranger Hess's vehicle in a pull-off area on the north side of the road that was an "easy walking distance" to the two vehicles (T1:80). Investigator Ryan testified that when he arrived at the scene he observed that claimant's UTV and Ranger Hess's vehicle were resting nose-to-nose in the middle of the road and had collided head-on. Investigator Ryan testified that he made the following observations regarding the UTV's tire tracks before the collision:
"It appear[ed] that the . . . UTV made impressions in the ground, leaving tracks up to a slight rise, where there were no longer any more impressions in the ground. There was a small section where there were tire . . . tracks again, and then again, none more before . . . where the UTV was . . . at its final place of rest."
(T1:77). Investigator Ryan testified that he inferred upon the presence and then absence of tire tracks that the UTV was airborne for a time prior to colliding with Ranger Hess's vehicle. Investigator Ryan also testified that some debris from the UTV was "stuck into the front bumper of [Hess's vehicle] at a downward angle" (T1:78) and that there were no skid marks behind the UTV (see T1:79). Investigator Ryan subsequently completed a Police Accident Report (MV-104A) concerning the accident after having spoken to the drivers of both vehicles and Morell and making observations at the scene.(6)
A photograph taken from behind claimant's UTV following the accident shows claimant's UTV and Ranger Hess's vehicle at rest and facing each other, with the front end of Hess's vehicle facing the camera (see Defendant's Exhibit A). The photograph shows Ranger Hess's vehicle at rest in the middle of the road, and no shoulder is visible on the driver's side of Hess's vehicle, i.e. the north side of the road. In the upper right corner of the photograph, an emergency vehicle with its roof lights illuminated can be seen parked in the distance behind Ranger Hess's vehicle, off the north side of the road. Investigator Ryan testified that vehicle with the illuminated roof lights in the photograph may have been his vehicle.
Claimant presented Alden P. Gaudreau, PE as his expert on the configuration, physical characteristics, and sight distances of State Fire Lane Road. Gaudreau testified that he reviewed Investigator Ryan's MV-104A; Hess's July 1, 2016 memorandum; the EBT transcripts of claimant, Hess, and Morell; and photographs of the scene. Gaudreau testified that he visited the accident site on four occasions, from December 2017 through September 2018, to observe, measure, and photograph the scene. On the first occasion, December 9, 2017, Gaudreau was accompanied by claimant, who identified the approximate point of impact, which Gaudreau photographed after marking it by placing an orange cone in the road (see Claimant's Exhibits 10-11). To the west of the orange cone on the north side of the roadway - or on the driver's side of Hess's vehicle - was a pull-off area for vehicles, and the roadway to the east of the cone had a visible shoulder on the north side (see Claimant's Exhibit 10). Ranger Hess testified that he did not believe that the accident occurred near the orange cone depicted in the photographs and that the cone was downhill from - or to the west of - the accident site. Investigator Ryan testified that if the accident had occurred at the site of the orange cone, he would have parked his vehicle downhill - or to the west of the cone - on the north side of the road (see T1:81-82).
Gaudreau testified that the eastbound roadway (the direction Ranger Hess's vehicle was traveling) was a straight road for approximately 400 feet west of the cone, curved slightly to the left past the cone, and had a ten percent slope incline (one foot of vertical rise to ten feet of horizontal run). Gaudreau testified that the westbound roadway (the direction claimant's UTV was traveling) curved slightly to the right at the crest and had a five percent slope incline (a six-inch vertical rise to ten feet of horizontal run) (see T2:168). Gaudreau testified that the westbound roadway leading up the crest was "in between the trees" and "snaked in and out around curves and what have you" (T2:165). Gaudreau testified that the pull-off area to the west of the orange cone was 200 feet in length and over 30 feet wide in its widest spot. Gaudreau testified that the orange cone was approximately 160 feet downhill from the crest of the hill. Gaudreau testified that a vehicle traveling between 25 and 30 mph would travel 160 feet in approximately four seconds, and it would travel 130 feet - the distance that Ranger Hess testified the accident occurred from the crest of the hill - in 3.25 seconds (see T2:205-206). Gaudreau testified that in the direction Ranger Hess's vehicle was moving, the road became a straightaway 400 feet before the point of impact (see T2:171). Gaudreau testified that the posted speed limit on State Fire Lane Road was 25 mph, and he concluded in a written report that the road characteristics of State Fire Lane Road " 'would have made it very difficult for any vehicle, including a UTV, to safely travel at a speed that exceeded 25 [mph] at night' " (T2: 216).
On September 8, 2018, Gaudreau visited the scene and took nighttime photographs to see what the scene would have looked like if the headlights on Ranger Hess's vehicle and the light bar on claimant's UTV were illuminated.(7) A photograph from claimant's westbound perspective shows that the light from Ranger Hess's headlights could be seen from a distance of 250 feet away from the orange cone (see Claimant's Exhibit 16; see also Claimant's Exhibits 18 [200 feet away] and 20 [150 feet away]).(8) Similarly, a photograph taken from Ranger Hess's eastbound perspective shows that light emanating from claimant's light bar - which was 6,700 lumens or almost seven times as bright as standard vehicle headlights - would have been visible from 300 feet away from the orange cone (see Claimant's Exhibit 13; see also Claimant's Exhibit 15 [150 feet away]).
Claimant argues that defendant is liable for the negligence of Ranger Hess inasmuch as the evidence establishes that Ranger Hess operated his vehicle without his headlights illuminated in violation of the Vehicle and Traffic Law (VTL), that he could observe the light from claimant's UTV headlights from a distance of 300 feet, and that he stopped his vehicle in the middle of the road. Defendant argues that claimant's unsafe operation of his UTV under the influence of alcohol was the sole proximate cause of the accident, that defendant is entitled to rely upon the common law emergency doctrine, and that Ranger Hess's vehicle had its headlights, roof lights, and parking lights on before the collision occurred.(9)
The VTL provides that "[e]very motor vehicle . . . driven upon a public highway" is required to display "at least two lighted head lamps on the front, one on each side, having light sources of equal power" during the period from thirty minutes after sunset until thirty minutes before sunrise (VTL § 375  [a] ). Under the VTL, a "public highway" is defined as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way" (VTL § 134). It is a "settled rule that a defendant's unexcused violation of the [VTL] constitutes negligence per se" (Holleman v Miner, 267 AD2d 867, 868-869 [3d Dept 1999]; see also Elliott v City of New York, 95 NY2d 730, 734  ["As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se"]), including the failure to display illuminated headlights during nighttime hours in violation of state law (see Martin v Herzog, 228 NY 164, 168  [an unexcused violation of state law requiring use of headlights on vehicles at night "is more than some evidence of negligence. It is negligence in itself" (emphasis in original)]). Thus, a critical factual issue requiring resolution is whether the headlights of Ranger Hess's vehicle were illuminated on the evening of June 30, 2016 as he was operating his vehicle on State Fire Lane Road as was undisputably required by VTL § 375 (2) (a) (1). In this regard, two drastically different versions of events were presented at trial, leaving the Court to credit one or the other. After observing the demeanor of the witnesses as they testified, the Court finds that claimant and Morell were far more credible and credits their testimony that Ranger Hess did not have his headlights illuminated at the time of the collision. Therefore, the Court concludes that Ranger Hess was negligent in the operation of his vehicle on June 30, 2016.
Notwithstanding that Ranger Hess was negligent by violating VTL § 375 (2) (a) (1) in failing to illuminate his headlights, a finding of negligence per se "does not necessarily lead to the conclusion that his action was a proximate cause of the accident" (Burghardt v Cmaylo, 40 AD3d 568, 569 [2d Dept 2007]), and claimant is still required to prove that Ranger Hess's negligence was a proximate cause of the collision (see Holleman, 267 AD2d at 869; see also Wallace v Terrell, 295 AD2d 840, 841 [3d Dept 2002]). In order to prove proximate cause, claimant "must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 , rearg denied 52 NY2d 784 , mot dismissed 52 NY2d 829 , rearg denied 52 NY2d 829 ). As the Court of Appeals has recognized:
"[Claimant] need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently 'remote' or 'technical' to enable the [factfinder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. A [claimant] need only prove that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency."
(Gayle v City of New York, 92 NY2d 936, 937  [internal citations omitted]). Here, a preponderance of the evidence clearly and manifestly supports a finding that Ranger Hess's failure to illuminate his headlights, coupled with his stopping his vehicle in the middle of the road only 130 feet from the crest of a "blind hill" (T1:32),(10) left claimant unable to observe Ranger Hess's presence until his UTV crested the hill, and was more likely than not a substantial cause of the accident. Therefore, Ranger Hess's negligence was a proximate cause of this accident.
Defendant argues that Ranger Hess cannot be held liable for the collision because, under the common law "emergency doctrine,"
"when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context."
(Rivera v New York City Tr. Auth., 77 NY2d 322, 327 , rearg denied 77 NY2d 990 ). However, as claimant correctly argues, "it is settled law that the emergency doctrine has no application where, as here, the party seeking to invoke it has created or contributed to the emergency" (Sweeney v McCormick, 159 AD2d 832, 833 [3d Dept 1990]). Thus, inasmuch as Ranger Hess "participated in the creation of the emergency" by failing to have his headlights illuminated and stopping in the middle of the road as claimant's UTV approached, the emergency doctrine is inapplicable to this claim (Martin v Alabama 84 Truck Rental, 47 NY2d 721, 722 ).
Defendant's contention that claimant was solely responsible for the accident due to the unsafe manner in which he operated his UTV and his prior consumption of alcohol is without merit. "A negligent defendant may be relieved of liability if the [claimant's] own conduct, or that of a third party, has intervened to 'break  the chain of causal connection' between that defendant's breach of duty and the ensuing injury" (Miller v Town of Fenton, 247 AD2d 740, 741 [3d Dept 1998], quoting Mesick v State of New York, 118 AD2d 214, 218 [3d Dept 1986], lv denied 68 NY2d 611 ). "To constitute such an intervening, or superseding, cause, the conduct in question must be so reckless or unforeseeable that it is unreasonable to hold the defendant responsible for the resulting damages" (Miller, 247 AD2d at 741). Notwithstanding that the evidence fairly establishes that claimant was operating his UTV in excess of the speed limit for the road, and perhaps as fast as 40 mph (see Claimant's Exhibit 2, p. 4), and that claimant himself had readily acknowledged that he was required to drive slower than 25 to 30 mph he testified he was driving that night, his conduct was not "so obviously fraught with danger that by its very nature [evidences] a wanton disregard for [claimant's] own personal safety or well-being" to constitute an intervening or superseding cause (Tisdell v Metropolitan Transp. Auth., 139 AD3d 844, 846 [2d Dept 2016] [internal quotation marks omitted], lv denied 28 NY3d 901 ; see also Feeley v Citizens Telecom. Co. of N.Y., 298 AD2d 745, 747-748 [3d Dept 2002]), especially in view of the evidence that claimant was completely unaware of the existence of Ranger Hess's vehicle due to its headlights not being illuminated. Therefore, the Court declines to find that claimant's actions were the sole proximate cause of this accident.
Nonetheless, the fact that claimant's conduct did not rise to the level of recklessness does not completely render claimant without fault for the accident. As noted above, the evidence fairly establishes that claimant was driving in excess of the speed limit, and perhaps as fast as 40 mph, on a road that his expert concluded was unsafe to travel at speeds in excess of 25 mph at night, and that claimant himself acknowledged required a lower speed at night. Further, the evidence fairly establishes that claimant's UTV went airborne after cresting the hill and that there were no skid marks from the UTV on the roadway, indicating that claimant either did not hit his brakes or hit them too late. Thus, the Court finds that claimant was negligent in failing to exercise due care on the roadway that evening. The Court further finds that in failing to maintain a safe and appropriate speed while approaching the blind hill claimant had less time to stop his vehicle, and that he did not properly apply his brakes, and his actions were also a proximate cause of the accident and his injuries. Therefore, the Court concludes that claimant was also culpable for the accident, although defendant bears the lion's share of responsibility for the collision inasmuch as Ranger Hess's failure to illuminate the headlights on his vehicle on the downslope of a blind hill was the primary cause of this accident.
The Court finds that defendant is liable for Ranger Hess's negligence and that claimant's comparative negligence was also a proximate cause of his accident and injuries. Liability is apportioned twenty percent (20%) to claimant and eighty percent (80%) to defendant. The Chief Clerk is directed to enter an interlocutory judgment to this effect. Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as practicable.
September 18, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. All references to the trial transcript are designated by "T1" for the proceedings on April 16, 2019 and "T2" for the proceedings on April 17, 2019.
2. State Fire Lane Road is also known as Ward Hollow Road or Pittstown State Forest Road.
3. Although claimant's timeline of the events of that evening would indicate that he drove down State Fire Lane Road on June 29, 2016, the documentary evidence demonstrates that the accident occurred at 12:15 a.m. on June 30, 2016 (see Claimant's Exhibits 1-2).
4. Ranger Hess explained that "alley lights" were lights on either side of his vehicle that would "shine into the woods on either side of the road" and that he "was using [them] to turn on and off to check the camping sites" (T1:128).
5. Although Investigator Ryan held the rank of Trooper at the time, this decision will refer to him by his rank at the time of trial.
6. Investigator Ryan's MV-104A was received into evidence as Claimant's Exhibit 1, with the parties stipulating that any opinions or conclusions contained therein regarding the speed of claimant's vehicle, the manner in which the accident occurred, and any references to the issuance of any traffic tickets were not to be considered by the Court (see T1:7-8). On cross-examination by defendant's counsel, Investigator Ryan testified about statements he made in the MV-104A about the UTV's speed and its ability to stop before the collision, and he testified that his conclusions were based upon his observations about the tire tracks and debris in Ranger Hess's front bumper (see T1:78-79). On redirect examination by claimant's counsel, Investigator Ryan was questioned about how fast he thought the UTV was traveling and testified that he had no training in accident reconstruction or in determining the speed of a vehicle based upon the presence or absence of skid marks or whether it went airborne (see T1:83-84).
After Investigator Ryan testified, claimant's counsel moved to strike his testimony about the UTV's speed on the grounds that Investigator Ryan was a lay witness who could only testify to facts and lacked the proper qualifications to render an opinion based on those facts and that Investigator Ryan was not noticed as an expert under CPLR 3101 (d) (1) (see T2:146-149). In opposition, defendant argued that claimant opened the door to the testimony by questioning Investigator Ryan about his MV-104A and that Investigator Ryan's conclusion was based upon his observations at the scene (see T2:149-150). The Court reserved decision on claimant's motion and invited the parties to make further arguments in their post-trial submissions (see T2:152). In their post-trial submissions, the parties essentially reiterated the arguments they made at trial (see Claimant's Post-Trial Memorandum, at pp. 22-27; Defendant's Post-Trial Memorandum, at pp. 17-18), with defendant additionally arguing that claimant's objection was untimely because it was not made while Investigator Ryan was testifying and that claimant's counsel had asked for Investigator Ryan's opinion about the speed of the UTV.The Court now grants claimant's motion to strike, for the following reasons. As an initial matter, defendant was not required to notice Investigator Ryan as an expert witness under CPLR 3101 (d) (1) because he was defendant's employee, he was not retained for the purpose of providing expert testimony, and he was not offered as an expert witness (see Rook v 60 Key Ctr., 239 AD2d 926, 927 [4th Dept 1997] ["CPLR 3101 (d) (1) applies only to experts retained to give opinion testimony at trial, and not to . . . fact witnesses"]). However, inasmuch as Investigator Ryan testified that he received no training in accident reconstruction or in determining the speed of vehicles, his testimony about the speed of the vehicle was speculative and will be stricken from the record (cf. Corrado Williams v State of New York, UID No. 2019-038-101 [Ct Cl, DeBow, J., Jan. 15, 2019] [Trooper qualified to render opinion about cause of accident and condition of tires because he was previously a mechanic and had taken an accident reconstruction course]). To be sure, claimant's counsel did question Investigator Ryan about portions of the MV-104A, but he did not question Investigator Ryan about any conclusions he drew with regard to the UTV's speed. Moreover, although Investigator Ryan was questioned by claimant's counsel about the UTV's speed on redirect examination, that line of questioning preceded questions about his training, which demonstrated that he did not possess the qualifications to render such an opinion.
7. Gaudreau recreated the lighting of the two vehicles by using a pickup truck that had headlights at a height of 42 inches above the ground (which was 5 inches higher than the height of the headlights on Ranger Hess's vehicle) to simulate Ranger Hess's vehicle and by placing a light bar identical to the one on claimant's UTV on a hand truck at a height of 70 inches from the ground (which was the same height as the light bar on claimant's UTV) to simulate claimant's UTV (see T2:194-197).
8. Gaudreau shot the photograph at a position of 55 inches above the ground, the approximate height of claimant's eyes from the ground as he sat in his UTV (see T2:195).
9. In his post-trial memorandum, defense counsel abandoned the argument made at trial that Ranger Hess was operating his vehicle in the course of an emergency operation pursuant to Vehicle and Traffic Law § 1104 (a) at the time of the collision and that claimant failed to prove that Ranger Hess acted with reckless disregard, thereby precluding liability (see Defendant's Post-Trial Memorandum, p.17; see also T2:234).
10. Although claimant testified that his UTV struck Ranger Hess's vehicle in the vicinity of the pull-off near the orange cone, which was approximately 160 feet from the crest of the hill, the Court credits Ranger Hess's testimony that the accident occurred approximately 130 feet from the hill's crest, as claimant's estimate was not supported by the evidence. Specifically, the photograph of the vehicles at rest facing each other that evening shows no shoulder or pull-off adjacent to the driver's side of Ranger Hess's vehicle, and a vehicle with illuminated roof lights - like Investigator Ryan's vehicle - can be seen parked in the distance behind Ranger Hess's vehicle in an area that was likely the pull-off area (see Defendant's Exhibit A). However, although the Court credits Ranger Hess's testimony that the accident occurred approximately 130 feet from the crest of the hill, where there was no shoulder or pull-off area, claimant's expert credibly testified that claimant's vehicle would have been visible to Ranger Hess from 300 feet away from the point of impact identified by claimant or, crediting Ranger Hess's testimony, from 330 feet away from the point of impact. Moreover, both claimant's expert and Ranger Hess testified that the area of State Fire Lane Road that Ranger Hess's vehicle was traveling at the time of the collision was a straightaway. The Court concludes, based on that credible testimony, that Ranger Hess had ample opportunity to pull off onto the shoulder area prior to the point of impact rather than simply stopping in the middle of the road, and he failed to do so, thus further contributing to the accident.