This was originally published on the SGR Blog.
Did County, PD, and Officer Have a Defense?
Ramon Antonio Ramos sued the County of Suffolk, the Suffolk County Police Department, and Police Officer Christopher Vitale to recover for personal injuries he allegedly sustained as a result of a motor vehicle-bicycle accident.
The accident allegedly occurred on December 18, 2017, at approximately 4:18 p.m., in the marked crosswalk at the intersection of Third Avenue and Union Boulevard in Islip, New York, when a SCPD vehicle, operated by Vitale, attempted to make a left turn from westbound Union Boulevard onto southbound Third Avenue. The vehicle struck Ramos’ bicycle, which was traveling eastbound on Union Boulevard in a marked crosswalk.
Ramos moved for summary judgment in his favor on the issue of negligence. He also sought to strike the County/SCPD/Vitale’s first affirmative defense of culpable conduct, second affirmative defense of assumption of risk, third affirmative defense of failure to state a cause of action pursuant to Insurance Law § 5012(d), and seventh affirmative defense premised upon Vehicle and Traffic Law §§ 1103 and 1104.
Ramos sought an immediate trial for the purpose of assessing damages, arguing that Officer Vitale was negligent in violating Vehicle and Traffic Law § 1141, by failing to yield the right-of-way to his bicycle. In support of his motion, Ramos submitted his affidavit, the transcripts of his testimony from his hearing held pursuant to the General Municipal Law and from his examination before trial, and the transcript of Officer Vitale’s testimony from his examination before trial.
The County/SCPD and Vitale cross-moved for summary judgment dismissing the complaint, and contended that Officer Vitale only could be held liable for injuries to Ramos if he acted in reckless disregard in the operation of his vehicle, and that his conduct did not rise to the level of reckless disregard. In support of their cross-motion, they submitted the transcripts of Ramos’ testimony from his GML hearing and from his examination before trial, and the transcript of Officer Vitale’s testimony from his examination before trial.
At the statutory hearing, Ramos testified that he was riding a bicycle at the time of the accident, prior to the accident he had a green light in his favor, and he checked for oncoming traffic before crossing over Third Avenue in the marked crosswalk. Ramos observed Vitale’s vehicle, which was traveling on Union Boulevard, with no lights illuminated and no directional signals activated at that time. The accident occurred when Ramos was in the middle of the crosswalk and Vitale’s vehicle suddenly turned left, striking the left side of his body. There was a crosswalk control device, but Ramos did not recall the signal displayed. The roads allegedly were dry and it allegedly was light outside at the time of the accident. Ramos lost consciousness after the impact and did not regain consciousness until he was at the hospital.
At his deposition, Ramos testified that, prior to the accident, he stopped at the intersection to check for oncoming traffic. Vitale’s vehicle did not have any lights, signals, or sirens activated at the time of the accident. Vitale’s vehicle allegedly did not slow down as it approached the intersection. Prior to the collision, the pedestrian traffic signal was lit with a “doll.” Traffic was “light” at the time of the accident. Ramos stated that he did not speak to a police officer regarding the accident after it occurred.
In his affidavit, Ramos averred that, prior to the accident, he was riding his bicycle eastbound on the sidewalk along Union Boulevard. He brought his bicycle to a stop at the end the sidewalk at the intersection of Union Boulevard and Third Avenue. Ramos observed that the crossing signal on the opposite side of the sidewalk on Third Avenue was illuminated, and that he checked for oncoming vehicle traveling on Third Avenue before crossing the crosswalk. Ramos observed Vitale’s vehicle, which had no emergency lights or directional signals activated, traveling westbound on Union Boulevard, at that time. The accident occurred when his bicycle, which was halfway across the marked crosswalk, crossing over Third Avenue, was struck by Vitale’s vehicle, which attempted to make a left turn, without signaling, onto southbound Third Avenue.
At his deposition, Vitale testified that he was operating a SCPD vehicle on the date of the accident, was en route to a call regarding “disorderly males by a dumpster,” and was not responding to an emergency at that time. Vitale explained that, prior to the accident, his vehicle was traveling westbound on Union Avenue with a green light in its favor and that he was waiting for “eastbound traffic to go straight” before making a left turn at the intersection. His left directional was activated at the time of the accident. Ramos further explained that “as [he] was making the turn, [he] had already hit the sun glare, which kind of blurred [his] vision a little bit.”.Vitale testified that he did not see Ramos until the moment of impact. He subsequently testified that he saw Ramos “maybe a second before” the impact. According to Vitale’s testimony, his supervisor, Officer Augustine, arrived at the scene of the accident to complete an accident report and Vitale explained to him how the accident occurred. There allegedly were no other witnesses or vehicles in the vicinity of the accident.
A person operating a bicycle on a roadway is entitled the rights and bears the responsibilities of a driver operating a motor vehicle. In general, an operator of a motor vehicle is required to keep a reasonably vigilant lookout for bicyclists, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. The Vehicle and Traffic Law § 1141 further requires that a vehicle intending to turn left within an intersection or into an alley, private road, or driveway, must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard. Nonetheless, a bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position.
The Vehicle and Traffic Law qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an “emergency operation.” An “emergency operation,” as defined by the VTL, includes, among other things, “responding to, or working or assisting … [a] police call.” The privileges set forth in the VTL include disregarding regulations governing the direction of movement or turning in specified directions. Nonetheless, the privileges afforded by the law “shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” Thus, the manner in which a driver of an authorized emergency vehicle operates the vehicle in an emergency situation may not form the basis for civil liability to an injured third party except when that authorized emergency driver acted in reckless disregard for the safety of others. The “reckless disregard” standard requires proof that “the driver intentionally committed an act of an unreasonable character, while disregarding a known or obvious risk that was so great as to make it highly probable that harm would follow.”
The Court found that the County/SCPD/Vitale established that Officer Vitale was engaged in an emergency operation at the time of the accident. Vitale’s deposition testimony indicated that he was responding to a call for assistance. Contrary to Ramos’ contention, Vitale’s testimony that he was not responding to an “emergency” at the time of the accident was irrelevant inasmuch as the VTL evinced no legislative intent to vary the definition of “emergency operation” based on individual police department incident classifications. In light of the foregoing, the branches of Ramos’ motion seeking summary judgment in his favor on the issue of the County/SCPD/Vitale and dismissal of their affirmative defense premised upon the VTL were denied.
But the submissions nevertheless failed to establish, prima facie, that Officer Vitale did not act in reckless disregard for the safety of others in the operation of his vehicle. Vitale’s deposition testimony demonstrated that his visibility was obstructed by sun glare before he attempted to turn left, and that he did not see Ramos until at most “maybe one second” before the collision. Officer Vitale admitted that his vehicle had neither emergency lights nor sirens activated at the time of the accident. Conflicting evidence was presented as to whether Vitale activated his vehicle’s left turn signal prior to the collision. The motion of the County/SCPD/Vitale was denied due to their failure to make a prima facie case.
As to the branches of Ramos’ motion seeking dismissal of the County/SCPD/Vitale’s first, second, and third affirmative defenses: when moving to dismiss an affirmative defense, Ramos had the burden of demonstrating that the affirmatives defense were without merit as a matter of law. In the context of a motion to dismiss an affirmative defense, the Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference.
As to the first affirmative defense of culpable conduct: the issue of Ramos’ comparative negligence could be decided in the context of a summary judgment motion in which he moved for judgment dismissing the affirmative defense of comparative negligence. Although a driver with the right-of-way is entitled to anticipate that other drivers will obey traffic laws requiring them to yield to him or her, a driver with the right-of-way still has a duty to use reasonable care to avoid a collision. Nonetheless, a driver with the right-of-way who only has seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision.
Ramos’ submissions were sufficient to establish his entitlement to summary judgment dismissing the County/SCPD/Vitales’ first affirmative defense of culpable conduct. The certified police accident report was admissible under the business record exception of the Civil Practice Law and Rules since the information contained in the police accident report was based upon information provided by Officer Vitale, who was a witness and police officer at the accident scene with a duty to report his observations to the reporting officer, Officer Augustine. Ramos demonstrated that he was entitled to assume that Officer Vitale would obey the traffic laws requiring him to yield, and that he had at most seconds to react to avoid the collision. In opposition, the County/SCPD/Vitale failed to raise a triable issue of fact. So, Ramos’ application to dismiss the affirmative defense of culpable conduct was granted.
Ramos was also entitled to dismissal of the County/SCPD/Vitale’s second affirmative defense of assumption of risk. Ramos testified that he was riding his bicycle on a roadway at the time of the accident. The mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car. In opposition to Ramos’s prima facie showing of entitlement to summary judgment dismissing the affirmative defense of assumption of risk, the County/SCPD/ Vitale’s failed to raise a triable issue of fact as to the applicability of the assumption of risk doctrine. Ramos’ application to dismiss the second affirmative defense of assumption of risk was granted.
With respect to the County/SCPD/Vitale’s third affirmative defense of failure to state a cause of action pursuant to Insurance Law § 5012(d), no motion lies under the CPLR to strike such a defense, as that amounts to an endeavor by Ramos to test the sufficiency of his own claim. A plaintiff moving for summary judgment on the issue of serious injury must make a prima facie showing that he suffered serious injuries pursuant to Insurance Law § 5102(d), and that his injury was causally related to the accident.
Insurance Law § 5102(d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
Ramos failed to address the issue of whether he sustained a “serious injury” within the meaning of Insurance Law § 5012(d) as a result of the accident in his moving papers. He thus failed to make a prima facie case that he sustained a serious injury within the meaning of the statute. Thus, Ramos’ application to dismiss the’ third affirmative defense of failure to state a cause of action pursuant to Insurance Law § 5012(d) was denied.