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COA examines police liability

A case involving a police officer’s liability when operating an emergency vehicle will be argued this week before the New York State Court of Appeals.

A Monroe County sheriff’s deputy rear-ended a vehicle Sept. 20, 2004, while on patrol in the town of Brighton.

According to court documents, Deputy John DiDomenico had just received a “priority one” call and notified a dispatcher he would provide backup to a call for a Henrietta burglary in progress. He glanced at his computer for two to three seconds to determine the location of the burglary. As he was doing so, traffic was slowing down and when he looked up, he hit the brakes, but was unable to stop before rear-ending a vehicle at West Henrietta and Brighton Henrietta Townline roads, injuring the other driver, Yasman Kabir.

“The suit alleges that [Kabir] has had significant spinal damage, permanent injuries which led to spinal surgery and is still suffering and anticipated to have lifelong consequences,” said Kabir’s attorney, Robert L. Brenna Jr. of Brenna, Brenna & Boyce PLLC.

At issue is whether DiDomenico is liable for damages or if he is immune as a police officer operating an authorized emergency vehicle in an emergency situation.

The complaint was originally dismissed Sept. 30, 2008, in Monroe County Supreme Court by Judge Thomas A. Stander on the ground that the county, DiDomenico’s employer, was immune from liability for ordinary negligence under Section 1104 of the Vehicle & Traffic law dealing with authorized emergency vehicles.

The law says the driver of an authorized emergency vehicle in an emergency situation may exercise privileges under the law to stop, stand or park; proceed past a steady red signal, a flashing red signal or a stop sign after slowing down; exceed the speed limit as long as life or property is not endangered; and disregard regulations governing directions of movement or turning in specified directions.

“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,” the statute says. “Nor, shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

Senior Deputy Monroe County Attorney Howard A. Stark said there is a qualified immunity from complying with the rules of the road as long as the officer does not engage in reckless conduct.

Stark said since DiDomenico was driving a police car engaged in an emergency operation, the standard of care applicable to his conduct was reckless disregard and not negligence.

“Case law is clear a law enforcement officer engaged in an emergency operation in a police vehicle who removes his eyes from the roadway may be negligent in looking down, however that momentary judgment lapse does not alone arise to the level of recklessness required in order for liability to attach,” Stark said. “Thus, Deputy DiDomenico was not operating his vehicle in reckless disregard for the safety of others including Kabir.”

The Appellate Division, Fourth Department, in a 3-2 decision reversed, reinstated Kabir’s complaint and granted her motion for partial summary judgment as to liability.

The majority concluded DiDomenico’s conduct, by traveling below the speed limit at the time of the accident, did not fall within the four categories of privileged conduct in the law’s subdivision so the reckless disregard standard would not apply.

“Instead, the applicable standard for determining liability is the standard of ordinary negligence,” according to the Dec. 30, 2009, decision. “It is well settled that a rear-end collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle and that partial summary judgment on liability in favor of the person whose vehicle was rear-ended is appropriate in the absence of a non-negligent explanation for the accident.”

The Fourth Department majority consisted of Presiding Justice Henry J. Scudder, Justice Edward D. Carni and Justice Jerome C. Gorski.

Justices Salvatore R. Martoche and Erin M. Peradotto disagreed, saying the deputy was operating an authorized emergency vehicle with the meaning of the law and is entitled to the benefits of the law including the protection from civil liability in the absence of conduct demonstrating reckless disregard for the safety of others.

The county is appealing.