Kevin G. Faley and Kenneth E. Pitcoff
*Originally published in the
New York Law Journal
September 4, 2013

As previously written, the Court of Appeals' decision in Kabir v. County of Monroe1 drastically undercut the protection afforded to emergency responders under New York Vehicle and Traffic Law §1104. Kabir relied on a technical and literal interpretation of the statute and held that emergency responders are entitled to the protections afforded by VTL 1104(e)'s "reckless disregard standard" only where the emergency responder is engaged in one of the acts enumerated in 1104(b), such as (1) stopping, standing or parking; (2) proceeding past a red light, stop sign or flashing red signal; (3) exceeding the posted speed limit; or (4) disregarding regulations governing direction of movement or turning in specified directions. For all other actions, the emergency responder would only be held to a negligence standard.

This reasoning would give greater protection to an emergency responder who was speeding (the reckless disregard standard) as opposed to one who was obeying the speed limit (negligence). Kabir not only ignored the intent behind VTL 1104, but left future courts to deal with the task of applying an unworkable standard certain to lead to anomalous results, just as the dissent predicted.

Post-'Kabir' Decisions

Accordingly, the Appellate Division Departments have continued to issue decisions that strictly follow Kabir's tortuous path and defy common sense, as evidenced in Fajardo, Gonzalez, and Nikolov.2

In Fajardo, the Second Department found that a mere ordinary negligence standard applied when a responding New York City Fire Department fire rescue truck attempted to change lanes and struck the plaintiff's vehicle. The court noted that the fire rescue truck struck the plaintiff's vehicle "approximately 30 seconds after the traffic signal controlling the lane in which both were traveling changed from red to green, and while the fire rescue truck was decelerating from approximately 15 miles per hour in moderate-to-heavy traffic conditions." Citing Kabir, the court held that the conduct of the driver of the fire truck during the emergency did not meet any of the specific conduct enumerated in 1104(b). The court reasoned that since 1104(b) does not specifically exempt the conduct of a driver of a vehicle following too closely behind another, the lesser standard of mere negligence governed.

The dissent in Kabir posed the following questions, among others: "Does the liability standard fluctuate within the court of an emergency route depending on whether, at a particular moment, an officer is speeding or running a red light? Or is the reckless disregard standard triggered with respect to the entire emergency operating once the officer initiates that standard by violating one of the laws cited in §1104(b)?"

While still unclear, arguably by mentioning that the accident occurred 30 seconds after the light turned from red to green and that the fire rescue truck was traveling below the speed limit, the court implied that had the accident occurred while the light was red, or while speeding, the reckless disregard standard would have been applicable.

In Gonzalez, the First Department also applied Kabir and found that the reckless disregard standard of 1104(e) did not apply when a responding fire truck traveling to the scene of an emergency collided with a van, after stopping at Third Avenue and turning right onto 68th Street at a green light. The court found that the driver of the fire truck was not engaged in any of the specific conduct permitted under 1104(b) and therefore was not entitled to the reckless disregard standard, but rather, could be found liable on a showing of mere ordinary negligence. Had the light been red and had the driver not stopped before making the turn, the fire truck driver would have undoubtedly put public safety at a greater risk, however, under Kabir, he would have earned the greater protection of the reckless disregard standard.

In June, 2012, the Fourth Department issued another perplexing decision in Nikolov. The Defendant police officer's patrol car collided with plaintiff's vehicle after entering an intersection against a red light. Citing Kabir, the court noted that proceeding through a red light is specifically enumerated in VTL 1104(b) and thus applied the reckless disregard standard to his actions. By contrast, if the same police officer had proceeded through a green light, and the rest of the facts and circumstances remained the same, the police officer would not be afforded the protections of the reckless disregard standard, as evidenced by Gonzalez. Everyone knows that a red traffic light means stop and a green traffic light means go; however, Kabir essentially reverses the two-that is, if police officers want to be afforded the greater protection initially afforded and intended by VTL 1104.

These cases illustrate and confirm the fears of Kabir's dissent. In a post- Kabir world, emergency responders face a precedent that fosters perverse incentives. It encourages emergency responders to violate the rules of the road in order to gain the higher burden of proof of reckless disregard. On the other hand, it denies the same protection to those who obey them. Consequently, Kabir encourages behavior that is directly at odds with protecting public safety, which is the primary function emergency responders perform and risk their lives for on a daily basis.

The Legislature's Reaction

In addition to expressing these very fears, the dissenters in Kabir were confident that the majority's holding was blatantly inconsistent with the Legislature's intent behind VTL 1104. At the same time, the dissent acknowledged the opportunity Kabir provided the Legislature, specifically, the "opportunity to review the statute to assess whether revision is necessary to clarify its intent."

In response to Kabir, several bills are before the New York State Assembly and Senate that call for amendments to VTL 1104, which aim to restore the legislation's initial intent.

Current Statute

VTL 1104(b) provides: The driver of an authorized emergency vehicle may: 1) Stop, stand or park irrespective of the provisions of this title; 2) Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operations; 3) Exceed the maximum speed limits so long as he does not endanger life or property; 4) Disregard regulations governing directions of movement or turning in specified directions.

Additionally, VTL 1104(e) provides: "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."

Before Kabir, most believed that VTL 1104(e) afforded the reckless disregard standard to all of the actions of an officer engaged in an emergency operation. As previously discussed and illustrated, Kabir narrowed this protection solely to the conduct specifically enumerated in 1104(b).

Proposed Amendments

Lawmakers are attempting to avoid more perplexing post- Kabir discussions and are seeking to restore the Legislature's initial intent behind the adoption of VTL 1104 with an amendment to the statute. VTL 1104 includes six subdivisions, (a)-(f). Some proposed amendments suggest changes only to subdivision (e) while others suggest changes to multiple subdivisions. While the approach of each bill may differ, the majority all commonly aim to subject emergency responders to a reckless disregard standard for personal injury suits arising out of emergency responses on the road.

For example, Bill S1175 suggests deleting all of the language of subdivision (e) and replacing it with the following: "In addition to the immunity from prosecution provided in subdivision (b) of this Section, no cause of action may be brought for damages as a result of the operation of an emergency vehicle when the operator of such vehicle was engaged in emergency operation at the time, provided that the operator who was engaged in such emergency operation was not acting with reckless disregard for the safety of others." In the memo preceding the proposed amendment, the Senate-Sponsor states "[t]his bill would correct these [post- Kabir] anomalies, and protect operators of emergency vehicles from unwarranted liability."

Another bill, Bill S99, proposes changes to all subdivisions (a)-(e). Bill S99 suggests new language in subdivision (a) that essentially sets the reckless disregard standard for all conduct of an emergency responder when involved in an emergency operation and proposes deleting entirely subdivisions (b) and (e). The preceding memo to the bill echoes the same goal as Bill S1175, specifically stating: "This bill seeks to restore the reckless disregard standard..." Further, the memo notes "[t]he sole thing a police officer, firefighter, or emergency medical technician should have to worry about is how to respond quickly and effectively to a scene of an emergency."

Most recently, Bill A03857 proposed on Jan. 29, 2013, takes an entirely different approach from one that aims to restore the reckless disregard standard. Bill A03857 proposes adding a paragraph (5) to subdivision (b) permitting the driver of an authorized emergency vehicle to "[o]perate an authorized emergency vehicle in any manner necessary to engage in an emergency operation." However, simply adding another category of conduct under subdivision (b) in this way and without any mention of the reckless disregard standard, may be an inefficient and ineffective solution to the problem. While it may be well-intended, adding a general category to a list of what has been referred to as "specifically enumerated conduct" may render the statute inconsistent and complicate the interpretation of the statute as a whole. Thus, Bills S1175 and S99 take the preferable, clearer approach.

Time for a Change

The Court of Appeals' holding in Kabir was met with vehement opposition by the dissent who predicted that the majority's new rule would create confusion as litigants attempted to sort out the issues surrounding this illogical and unworkable standard. The post- Kabir cases have proven the dissent's predictions accurate. The Appellate Division departments continue to hand down troubling decisions following Kabir; however, the time has come for a change. The proposed amendments before the New York State Assembly and Senate seek to restore the purpose of VTL 1104 to give emergency responders the appropriate latitude to make quick decisions that are so often necessary when responding to emergency situations.

Kevin G. Faley and Kenneth E. Pitcoff are partners of Morris Duffy Alonso & Faley. Samantha Fox, a paralegal with the firm, assisted in the preparation of this article.

1. 16 N.Y.3d 217 (2011).
2. Fajardo v. City of New York, 943 N.Y.S.2d 587 (2d Dept. 2012); Gonzalez v. City of New York, 91 A.D.3d 582, 936 N.Y.S.2d 892 (1st Dept. 2012); Nikolov v. Town of Cheektowaga, 96 A.D.3d 1372, 946 N.Y.S.2d 734 (4th Dept. 2012).