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Court: County liable for deputy’s accident

Monroe County is liable for damages resulting from a 2004 personal-injury accident involving a sheriff’s deputy, according to a split decision by the state Court of Appeals.

A majority of four justices agree the deputy is not immune because his conduct was outside the scope of exemptions allowed by law for drivers operating authorized emergency vehicles. The justices, in their decision released today, agreed with the Appellate Division, Fourth Department, which ruled Dec. 30, 2009, that privileged conduct under Section 1104 of Vehicle & Traffic Law is limited.

“While we’re disappointed, that’s the decision of the court,” said Senior Deputy Monroe County Attorney Howard A. Stark, who had argued Deputy John DiDomenico’s conduct fell under a qualified immunity. Three justices agreed with Stark.

“I think the fact that there was a 4-3 split reflects the very difficult statutory interpretation that was involved in this case,” Stark said. “As the dissent notes, at the end of the decision, the decision may provide the Legislature with an opportunity to review the statute to assess whether revision is necessary.”

The majority notes the intention of Section 1104, put into law in 1957, was to give certain privileges to the driver of authorized emergency vehicle operating in an emergency situation.

The law says such driver may exercise privileges 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 law, however, does not relieve the driver of the duty to drive with the regard for the safety of all people, nor does it protect the driver from the consequences of reckless disregard for the safety of others.

The court of appeals ruled a subdivision of the law “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 granted privilege causes personal injuries or property damage.

In this case, Deputy John DiDomenico was on routine patrol in a marked sheriff’s vehicle about 4 p.m. Sept. 20, 2004, when he received a call from the 911 center requesting immediate backup for a burglary in Henrietta.

At the time, DiDomenico was heading north on West Henrietta Road in the town of Brighton when he received another dispatch with the location and looked at his computer for two to three seconds to see how to get there.

When he looked up, he realized traffic was slowing and hit the brakes, but was unable to stop before rear-ending a vehicle at West Henrietta and Brighton Henrietta Townline roads, driven by Yasman Kabir.

DiDomenico was not speeding at the time and did not have his vehicle’s emergency lights activated.

Kabir, who had stopped for a red light, is claiming she was seriously injured. She brought suit against the county, DiDomenico and Sheriff Patrick M. O’Flynn.

The question was whether Section 1104 of the law applied, making DiDomenico liable for the accident only if he acted with “reckless disregard.”

State Supreme Court Justice Thomas A. Stander originally ruled Sept. 26, 2008, that DiDomenico’s conduct was immune under Section 1104 and that Kabir had not raised a triable issue of fact as to whether he acted with reckless disregard.

The Appellate Division reversed on Dec. 30, 2009, holding that the reckless disregard standard in the law is limited to accidents caused by privileged conduct.

“There is an overriding concern that you can’t see by merely reading the decision,” said Robert L. Brenna Jr., who represents Kabir. “The court did an outstanding job of analyzing what was really happening and clarifying earlier decisions that have been misused for the last two decades.”

Brenna compared the case to eminent domain in which the government has the right in certain circumstances to take property for the good of society, but must compensate the property owners.

“Nothing could be more important than your well being or your life,” he said. “If society benefits from a governmental act, then society and the government should bear the economic brunt of that action. I don’t want police officers to have to pay a penny individually, but the government must be responsible for injuries they inflict on a random victim when they claim that the act that caused the injury or death is for the benefit of society.”

Brenna added that he likes O’Flynn, considers him a great sheriff and did not want to bring suit against him or DiDomenico. He said neither was named in the initial suit, but that the county refused to accept responsibility unless they were personally sued .

The majority court of appeals justices note the defendants and the dissent understood the law 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 the subdivision in question.

They say the provisions are interrelated and that the subsequent subdivision, addressing the driver’s duty to drive with regard for the safety of others, does not create a reckless disregard standard of care independent of the specified privileges.

The majority opinion is written by Judge Susan P. Read with Judges Jonathan Lippman, Eugene F. Pigott Jr. and Theodore T. Jones concurring. Dissenting are Judges Victoria A. Graffeo, Carmen Beauchamp Ciparick and Robert S. Smith.

The dissenting judges say that by concluding the conduct of a driver in an emergency vehicle operating in an emergency should be assessed under the reckless disregard standard of care only when the driver is engaged in one of the privileged activities is “unworkable, incompatible with our precedent and unwarranted given the language of the statute.”

They note the court observed in Saarinen v. Kerr (84 NY2d 494 [1994]) that the law provides emergency responders with the heightened “reckless disregard” standard of liability in recognition of the fact that the responders must make split-second decisions that sometimes may include violating traffic laws in service of a greater good.

“Since Saarinen, Vehicle and Traffic Law Section 1104 has been understood to impose a two-part test: If the driver was operating an ‘authorized emergency vehicle’ and was involved in an ‘emergency operation,’ as those terms are defined in the statutory scheme, the driver was entitled to qualified immunity afforded by the reckless disregard standard,” Judge Graffeo wrote.

“The majority now adds a third component to the equation, precluding emergency responders from obtaining the benefit of the reckless disregard standard unless — ironically — they violated one of the traffic rules listed in Section 1104 (b).

“Police officers, firefighters or ambulance drivers who manage to obey traffic signals or travel within the speed limit are out of luck if they are involved in an accident. Their conduct will now be assessed under the ordinary negligence standard, making it much easier for these ‘law-abiding’ emergency responders to be held liable for damages. Does this make sense?”

The majority also says Kabir must still provide that she sustained a “serious injury” within the meaning of the New York’s No-Fault Law in order to recover damages for her alleged personal injuries.

Stark said a trial will be scheduled before Judge Stander.

Brenna said Kabir is in pain every day.

“She’s had spinal surgery,” he said. “Her life will never be the same and now she believes there is at least some measure of justice in our judicial system.”