As another State legislative cycle begins in 2018, there is a municipal liability issue that deserves attention regarding the liability protections extended under New York law to emergency vehicle operators. When a vehicular accident normally occurs, a driver’s conduct is legally assessed under a negligence standard. But State law has long provided a higher standard that an injured party has to prove to recover damages resulting from an accident involving an emergency responder. Vehicle and Traffic Law (“VTL”) section 1104 establishes exemptions from liability for violations of certain “rules of the road” for drivers of emergency vehicles responding to emergency operations. The statute lists the particular conduct that is excused from liability unless the operator of the emergency vehicle is engaged in the “reckless disregard for the safety of others.” The list of protected vehicular operation activities includes: (1) stopping, standing or parking; (2) proceeding past a red light, stop sign or flashing red signal; (3) exceeding the speed limit; or (4) disregarding governing road directions or movement.
These “privileges” or protections against liability do not cover all situations that arise in accident scenarios involving emergency vehicles. One example of an excluded activity arose in the case of Kabir v. County of Monroe, 16 N.Y.3d 217 (2011), which involved a commonplace rear-end collision scenario. A deputy sheriff received two emergency calls from a dispatcher and headed to the address conveyed in the 911 calls. In the course of travelling to the requested location, he glanced down at his vehicle’s display screen to check the street names. When he looked back up, he noticed the traffic in front of him was stopped, but it was too late for him to stop his patrol car before it collided with the vehicle in front of him. The deputy had not activated his siren or emergency lights and he claimed he was traveling less than 30 miles-per-hour in a 40 mile-per-hour zone when he applied the brakes. The driver of the vehicle that sustained the impact sued the County of Monroe and the deputy for injuries sustained in the accident.
The County sought a dismissal of the lawsuit on the basis of the special exemption extended to emergency operators under VTL 1104. The trial court agreed with the County’s position. But on appeal, the Appellate Division (an intermediate appellate court) reversed on the ground that “a rearend collision with a vehicle in stop-and-go traffic create[d] a prima facie case of negligence with respect to the operator of the rear vehicle” since this particular driving conduct was not a section 1104(b) protected activity (16 N.Y.3d at 224).
As the final judicial arbiter, the New York Court of Appeals, by a split vote of 4-3, agreed with the Appellate Division and denied the dismissal of the lawsuit, concluding that the deputy was not entitled to the “reckless disregard” standard, which affords emergency responders greater protection than the usual negligence standard applied to drivers since his conduct did not fall into one conduct categories listed in VTL section 1104(b). The Court used its time-honored “plain language” rule to limit the liability exemptions to just those circumstances expressly stated in VTL section 1104(b). As a result, the deputy’s conduct was to be evaluated at trial under the ordinary negligence standard.
The decision leaves municipalities and emergency responders at risk of civil liability litigation when an emergency responder is involved in an accident that does not precisely fit into the enumerated statutory categories. In Kabir, the deputy did not receive the benefit of the reckless disregard standard since he was traveling within the speed limit when he glanced down at his transmitter, creating an anomaly. Because the deputy was not exceeding the speed limit or violating any of the particular actions listed in the statute, the plaintiff was granted summary judgment establishing the deputy’s liability.
The dissenting judges in Kabir noted this precedent creates “practical problems.” For example, an emergency responder who follows the rules of the road and exercises ordinary caution while responding to an emergency, but is involved in an accident, faces the possibility of being subject to civil liability under the ordinary negligence standard. Conversely, an emergency responder who violates the speed limit or fails to stop at a red light—conduct with more risk of harm to third parties—will be subject to the more stringent liability proof of reckless disregard, which is more difficult for a plaintiff to prove.
Because of the troublesome implications of Kabir, bills were proposed in the State Legislature in the aftermath of Kabir, but legislative relief did not come to fruition. The Appellate Divisions are apparently aware of the troublesome distinction caused by the statute and have circumvented this liability dilemma by declaring that an emergency responder’s conduct has qualified under the purview of the statute, entitling the driver to the reckless disregard standard. For instance, in Dodds v. Town of Hamburg, 117 A.D.3d 1428 (4th Dept 2014), the Appellate Division held that “by attempting to execute a U-turn, the officer’s conduct was exempted from the rules of the road by § 1104 (b) (4).” A similar conclusion was reached in Jones v. Albany County Sheriff’s Department, 123 A.D.3d 1331 (3d Dept 2014), even though engaging in a U-turn is not expressly mentioned in the statute. These courts perhaps viewed that conduct as falling within the “disregarding road directions” category in VTL § 1104 (b).
Emergency responders and municipalities will continue to be subject to liability exposure beyond what the State Legislature may have intended when it adopted the statute in 1957. As the 2018 legislative cycle begins in January, municipalities and public safety organizations concerned with the disparities in the standard of care applied in various vehicular situations should consider promoting legislative amendments or an overhaul of the statute to “level the playing field” for emergency vehicle operators.