This was originally published on the SGR Blog.
Were Trucker, County, or Police Liable for Driver’s Death?
A negligence/wrongful death action arose from a motor vehicle accident in which decedent, Daniel Krehl, drove into the rear of a tractor trailer parked on the shoulder of Montauk Highway, Suffolk County, New York. William Siberio owned and operated the tractor trailer. The Estate sued Siberio, Suffolk County, the Suffolk County Police Department (SCPD) and Police Officer Anthony W. Mills.
Siberio asserted that he was free from any liability and the sole proximate cause of the accident was due to Krehl’s speeding and driving while intoxicated at approximately 2:35 a.m., under foggy weather conditions.
The Police Department and Officer Mills similarly maintained that the sole proximate cause of the fatal accident was due to Krehl’s own conduct; they were not involved in the accident; and had no duty to Krehl, nor did they owe him any special duty.
There were no eyewitnesses to the accident. Siberio, who was in the sleeper portion of the tractor, became aware of the accident when he heard a noise and felt an impact to his tractor trailer. Mills saw Krehl speed past him proceeding eastbound on Montauk Highway. The officer was proceeding in a westbound direction when he saw Krehl’s car speed past him in the opposite direction. By the time the officer was safely able to turn his car around and proceed in an eastbound direction to stop Krehl, the vehicle’s taillights were no longer visible. Mills nevertheless proceeded eastbound on Montauk Highway and shortly came upon the accident scene. The front of Krehl’s vehicle was wedged underneath the rear of Siberio’s trailer. Krehl was pronounced dead at the scene of the accident.
Negligence and proximate cause frequently overlap in the proof and theory which support each of them-but they are not the same conceptually. Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint. Although the issue of proximate cause is generally one for a jury to decide, where the party merely furnishes the condition or occasion for the occurrence of the event, rather than its cause, there is no liability. When only one conclusion may be drawn from the established facts, proximate cause may be determined as a matter of law by the Court.
The County, SCPD, and Mills moved for summary judgment and dismissal of the Estate’s complaint and had the initial burden of establishing their entitlement to summary judgment. But, in a death case, the Estate was not held to as high a degree of proof of the cause of action unlike a case where an injured plaintiff can himself describe the occurrence.
The Court would deem the Estate’s evidence sufficient to make out a prima facie case if it showed facts and conditions from which the negligence of the County, SCPD, and Mills and the causation of the accident by that negligence might be reasonably inferred. But if negligence could not legitimately be inferred, even in a death case, a party could not be held liable.
In support of his motion, Siberio submitted the pleadings, the deposition transcripts of the parties, the non-party deposition transcript of Krehl’s fiancée, police accident reports, police reports, the autopsy report, and the crash data retrieval report generated by the “black box” recovered from Krehl’s vehicle.
The pleadings essentially alleged that Siberio illegally parked his tractor trailer on the shoulder of Montauk Highway; violated the vehicle and traffic laws of the State of New York, as well as regulations and safety provisions concerning vehicles involved in interstate commerce; failed to display any type of warning, lights or other devices to alert other motorists of his position; failed to equip his tractor trailer with safety devices preventing vehicles from going under the rear portion of the trailer; failed to comprehend an imminently dangerous situation; and failed to take the necessary steps to remedy the situation.
But the submitted evidence was devoid of any indication that Siberio was illegally parked on the shoulder of the roadway. Nor was there any evidence that his trailer was not equipped with the device/bar that was designed to prevent vehicles from going under the rear portion of a trailer (underride guard). In fact, the evidence established that Siberio’s trailer was properly equipped with the safety device and lights, flashers and reflectors; the lights were illuminated at the time of the crash; and Siberio’s tractor trailer was parked on the shoulder, next to the curb and approximately three to four feet from the solid white line separating the shoulder from the roadway. Siberio did not receive any tickets/summonses from the police who responded to the accident scene.
Siberio’s trailer was loaded with mulch that he was slated to deliver to a nursery located on Montauk Highway. Siberio was unfamiliar with the area, and there was a substantial amount of fog when he arrived in the vicinity of the nursery at approximately 11:00 p.m. the day before the scheduled delivery. When Siberio realized that he had passed the nursery where he was to deliver the mulch early in the morning, he determined that he would simply park his tractor trailer on the shoulder of the roadway rather than risking making a U-turn on Montauk Highway in the fog. Siberio parked on the eastbound shoulder of the roadway. He testified that he kept his lights and flashers on the entire time he was on the shoulder. He was watching television inside the sleeper compartment of the tractor. At approximately 2:30 a.m., he became aware of the accident when he heard a “bang.” As Siberio left the tractor, the police were already present.
Siberio also testified that he had extra red and white reflectors on the rear door of the trailer, in addition to the reflectors required by the Department of Transportation. Furthermore, approximately one to two years before the accident, he had the metal device installed on the rear of his trailer to prevent a vehicle from going under the trailer in case someone was to strike the trailer in the rear (an underride guard).
Prior to the accident’s occurrence, Mills was on routine patrol. He observed Siberio’s tractor trailer parked on the shoulder of Montauk Highway/County Route 80. Mills noticed the tractor trailer approximately twenty minutes or more prior to the accident, and he may have observed it twice during that time span. He testified that he remembered saying to himself when he first saw it “Oh, look at the truck. He wants to be seen. It’s parked under a streetlight. It has its parking lights on. That’s awesome.” When Mills made that observation, he traveled past the trailer going westbound on Montauk Highway. He had no problem seeing the tractor trailer despite the foggy conditions.
Also, shortly prior to the accident, as Mills was traveling westbound on the highway, he testified that he was keeping his eye on a gas station where there had been a number of “break-ins, disturbances.” As he looked toward the gas station, he saw the headlights of an oncoming vehicle headed eastbound that ultimately turned out to be Krehl’s car. According to the officer, he did not think anything of the oncoming vehicle until he “felt the vehicle zoom fast past” him. The vehicle was “going fast.” At that point, Mills turned and saw the vehicle’s taillights and decided that he was going to stop that vehicle. In order to stop the vehicle, Mills had to execute a U-turn. Knowing that the convenience store/gas station was open twenty-four (24) hours and that there could be traffic as a result, Mills made sure that traffic was clear before he made the U-turn. When he completed the U-turn, Mills could no longer see the taillights of the vehicle that he intended to stop. He stated, “it was gone.” Mills nevertheless proceeded eastbound on Montauk Highway, intending to intercept the vehicle at a traffic light; however, he shortly came upon the tractor trailer that he had observed earlier. The tractor trailer still had its parking lights on, but “there was something in the back that … shouldn’t have been there.” That “something” was Krehl’s vehicle in/under the rear of the trailer.
Mills further testified that he did not observe any skid marks on the roadway at the accident scene, and that the speed limit on that roadway changes from 30 miles per hour to perhaps 35 miles per hour. He did not issue any traffic citation to Siberio. The police accident report also reflected that no tickets were issued, and the certified police reports prepared by the investigating detective indicated that the tractor trailer was inspected, and no deficiencies related to the incident were noted.
The submitted autopsy report containing the toxicology results revealed that Krehl’s femoral blood alcohol content was .29% and his brain tissue revealed a blood alcohol content of .27%. Elisa Krehl, the decedent’s mother, testified that she learned from the autopsy report that his blood alcohol level was “.28 or something.” Vehicle and Traffic Law § 1192.2 provides that an individual is driving while intoxicated, per se, when he or she operates a motor vehicle while having .08 of one percentum or more by weight of alcohol in their blood; therefore, Krehl was operating his vehicle at the time of the accident with more than three times the legal limit of alcohol in his blood.
The certified crash data retrieval report revealed that one second before the airbag control module recorded a deployment decision event, the speed of Krehl’s vehicle was 72 miles per hour and the brake was recorded as being “OFF.” The module also revealed that the brake was “OFF” from eight seconds before the deployment decision to one second before the deployment decision.
Based upon the evidence presented, the Court found that Siberio established that he merely furnished the condition or occasion for the accident but was not the proximate cause of the crash. Krehl was apparently speeding eastbound on Montauk Highway at more than twice the legal speed limit, while his blood alcohol level was more than three times the legal limit for driving while intoxicated. Moreover, he never even applied his brakes when he left the roadway. Whether he was conscious or unconscious during the moments before the crash could not be known, nor would it ever be known what he may or may not have observed prior to the crash. However, even viewing the evidence in the light most favorable to the Estate, that evidence established, prima facie, that the sole proximate cause of the accident was Krehls’ loss of control of his own vehicle resulting from his intoxication and excessive speed.
In opposition to Siberio’s motion, the Estate submitted counsel’s affirmation, photographs of the trailer, various sections of the Code of Federal Regulations, and the affidavits of two individuals not previously disclosed during the course of discovery.
The affidavits of Damian Digiacomo and Kara Pedrone were dated after the Note of Issue and Certificate of Readiness in the action were filed. Since those witnesses were disclosed for the first time in opposition to the summary judgment motion, after discovery was certified by the Estate as completed, in its discretion, the Court refused to consider the two affidavits absent any excuse for the failure to previously disclose them, let alone a valid excuse.
Counsel for the Estate’s affirmation was not evidence and no other evidence was offered contesting either the blood alcohol results contained in the autopsy/toxicology report, or the crash data retrieval report. In fact, counsel acknowledged that the “crash report from the black box of the vehicle indicate[d] a maximum speed of 72 mph in the eight seconds preceding the crash.” And also acknowledged that “travelling 72 mph on Montauk Highway would constitute a speeding ticket…”
Krehl’s fiancée’s testified that she and Krehl bought a bottle of wine earlier in the evening, and that each of them had a glass from approximately 6:30 p.m. until 12:30 a.m. prior to her going to bed at 12:30 a.m. The Court found that testimony unavailing and insufficient to raise a question of fact as to intoxication-she never saw Krehl after 12:30 a.m. and had no idea where he had gone or what he had done after she fell asleep.
The Estate also offered no evidence contradicting or raising an issue of fact as to whether Siberio had an underride guard installed on the rear of his trailer well prior to the accident. Emblematic of the impermissible speculation woven throughout the opposition, the Estate’s counsel posed the question, “if the guard was present, how did the [Krehl’s] vehicle windup (sic) almost completely underneath the trailer?” Not only was that speculative, but the Estate offered no evidence at all as to whether the underride guard would have stopped Krehl’s vehicle that was travelling unimpeded at 72 miles per hour. Also, the photographs of the car under the trailer submitted by the Estate depicted a portion of the underride guard that remained following the accident.
The Estate’s claims concerning Siberio’s trucker logbook was also unpersuasive, in addition to the fact that the logbook was utterly irrelevant to where Siberio was parked on the shoulder of the roadway. The Estate’s reference to the Vehicle and Traffic Law as related to parking was also inapposite as there was no evidence that Siberio was illegally or improperly parked, or jutting into the roadway, or that he was issued any summonses by the police. The tractor trailer was inspected after the accident and no deficiencies were noted as related to the accident. Accordingly, the Estate’s references to the CFR were unsupported and speculative. As to the claim that the Estate’s representatives did not have an opportunity to inspect the trailer: predecessor counsel was advised that Krehl’s insurance carrier paid for, and took possession of, the trailer-and thus it could have been inspected by the Estate.
The Court was mindful that this was a death case and that greater latitude could be given to the Estate when inferring negligence. However, the circumstances of the case and the Estate’s opposition were still insufficient to raise a triable issue of fact and defeat Siberio’s summary judgment motion. There was no reasonable inference that could be drawn from the evidence that the accident was due to Siberio’s conduct, either in whole or in part. Allegations of negligence do not raise issues of fact requiring a trial unless there is a demonstration that such negligence was a proximate or concurring cause of the accident.
Siberio’s summary judgment motion was granted in its entirety and the complaint was dismissed as against him.
The County, the SCPD, and Mills submitted essentially the same evidence as submitted by Siberio, thereby establishing that Krehl was speeding and driving while intoxicated when the accident occurred.
The pleadings essentially alleged that the County and SCPD did not properly patrol the area; they failed to be apprised of the illegally parked tractor trailer presenting a hazard; failed to issue a citation to Siberio and have him move his tractor trailer; and failed to take necessary steps to intercept or stop Siberio’s vehicle and/or to protect decedent.
The provision of police protection is a governmental function, and, although a municipality owes a general duty to the public at large to furnish police protection, that does not create a duty of care running to a specific individual sufficient to support a negligence claim-unless the facts demonstrate that a special duty was created.
The elements of a special relationship are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.
The common-law doctrine of governmental immunity shielded public entities from liability for discretionary actions taken during the performance of governmental functions. In other words, even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority. The governmental function immunity defense cannot attach unless the municipality establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated.
The testimony of Officer Mills established that the County had no vehicle involved in the accident and Mills determined to stop Krehl as soon as he observed Krehl “zoom” past him in the opposite direction. But, due to Krehl’s excessive rate of speed, Mills was not able to stop him before the accident occurred. Mills did not issue any traffic summonses to Siberio (although he was empowered to do so). In fact, Mills noticed that Siberio’s tractor trailer was parked fully on the shoulder of the roadway; its parking lights were on; and was parked under a streetlight.
There was absolutely no evidence that there existed a special duty or special relationship between Krehl and the County, the SCPD, or Mills. There was no promise or action indicating a duty to act on Krehl’s behalf, and there was no form of direct contact between Mills and Krehl prior to the accident. Accordingly, Krehl could not have placed any justifiable reliance on an alleged affirmative undertaking by Mills. In any event, there was no evidence that Mills on behalf of the County or the SCPD committed any negligence. It was in Mills’ discretion whether to issue a citation to anyone and he was performing a purely governmental function-so the County, the SCPD, and Mills established their prima facie entitlement to summary judgment on the basis of governmental immunity.
As established by the submitted evidence, the sole proximate cause of the accident was Krehl’s loss of control of his own vehicle resulting from his intoxication and excessive speed.
The Estate argued that Mills had a duty to enforce the law and protect motorists from violations of the Vehicle and Traffic Laws, and claimed that the officer was clearly unaware of, and failed to enforce, the relevant law. The allegation that Mills failed to ticket Siberio for illegally parking his tractor trailer was unsupported by any legal authority.
Mills testified that he was familiar with Section 1200 of the Vehicle and Traffic Law, prohibited parking, which was the gravamen of the Estate’s argument. Although he testified that he was not familiar with the other specific sections related to parking, Mills’ deposition testimony clearly established that it was his determination that Siberio’s tractor trailer was parked on the shoulder, properly lit with its parking lights on and parked under a street light, such that the officer was pleased, remarking to himself that, “[h]e wants to be seen … That’s awesome.”
There was nothing else in Estate’s opposition that raised a triable issue of fact, either as to negligence or governmental function/immunity. As with Siberio’s motion, the Court afforded the Estate greater latitude when inferring negligence due to Krehl. However, the submissions by the Estate were still insufficient to raise a triable issue of fact and defeat the summary judgment motion. There was no reasonable inference that could be drawn from the evidence that the accident was due, either in whole or in part, to the County, the SCPD, or Mills.
The motion of the County, the SCPD, and Mills for summary judgment motion was granted.