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Appellate Division reversed… cont

Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions 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, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But criminal defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “the foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have “interpreted Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others’ ”. The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “the foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

Further, the dissent opines that the “evident intent” of the reference to “foregoing provisions” in Vehicle and Traffic Law § 1104(e) “was to ensure that the creation of the privileges earlier in the statute would not be misinterpreted as precluding an emergency responder from being held accountable when he or she caused an accident while engaged in privileged conduct”. Thus, such emergency responder “cannot receive a traffic citation” for conduct enumerated under section 1104(b); and “the fact that a driver failed to conform to a traffic law” would not “constitute prima facie evidence of negligence,” or “be viewed as recklessness per se”. Assuming this interpretation of the interplay between subdivisions (b) and (e) is correct, it does not follow that section 1104(e) creates a reckless disregard standard of care for unprivileged conduct. Indeed, the logical implication of the dissent’s reading of section 1104 is that the standard of care for all emergency driving even if privileged under subdivision (b) is negligence.

The DWI Legislature certainly knew how to create the safe harbor from ordinary negligence envisioned by defendants and the dissent. For example, the Legislature might simply have structured section 1104(a) and (b) along the lines of section 1103(b). As originally adopted in 1957, this provision stated in relevant part that “unless specifically made applicable, the provisions of this title [VII] shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway but shall apply to such persons and vehicles when traveling to or from such work”.

Thus, rather than taking the approach of section 1104(a) and (b)—excusing the driver of an authorized emergency vehicle from complying with certain rules of the road when involved in an emergency operation—the Legislature in section 1103(b) exempted “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” from all the rules of the road, subject to any statutory exceptions. Subsequently, the Legislature “softened the outright exemption” in section 1103(b) by adding the due regard/reckless disregard language of section 1104(e). In addition, in 1987 the Legislature created a statutory exception, making “specifically applicable” those provisions in title VII regarding driving under the influence of drugs or alcohol.

This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).

Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly, we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b). Amicus curiae New York State Division of State Police, for example, argues that “while the facts of involved a police officer who exceeded the speed limit during a chase the Court’s holding was broad and unambiguous,” quoting the following passage: “Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer’s conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others”. A weapon was not found.

Finally, the dissent devotes several pages to a discussion of the many supposed “practical problems” presented by our interpretation of the statute. Simply put, section 1104(e) establishes a reckless disregard standard of care “for determining civil liability for damages resulting from the privileged operation of an emergency vehicle”; if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104(b), the standard of care for determining civil liability is ordinary negligence.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

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