Kenneth E. Pitcoff and Andrea M. Alonso, New York Law Journal

July 15, 2016

The Court of Appeals' decision in Kabir v. County of Monroe1 drastically undercuts the protection afforded to emergency responders under New York Vehicle and Traffic Law (VTL) §1104. In Kabir, the court held that the "reckless disregard" liability standard for drivers of emergency vehicles only applied when the driver was engaged in one of the four enumerated categories of privileged conduct. The Kabir dissent accurately predicted that the illogical standard established in Kabir would lead to concerning decisions. In response, the appellate courts have avoided being limited by the Kabir standards and have interpreted the statutory language of 1104(b)(4) to entitle a responding vehicle that is turning during an emergency situation to a reckless disregard standard. This has greatly broadened the stringent Kabir criteria in an attempt to fashion a realistic and workable model.

According to Kabir, emergency responders are entitled to the protections afforded by VTL §1104(e)'s reckless disregard standard only when the responder is: (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 is only held to an ordinary negligence standard.

The dissent in Kabir described the majority's opinion as unworkable, incompatible with precedent and inconsistent with the public policy as it extended a qualified protection only to emergency personnel who violate traffic rules. The dissent concluded that the new rule would engender confusion and would protect emergency responders who violate rules of the road rather than those who conform to them.

Cases and Section 1104

When cases arise that fit within the four exemptions of VTL §1104, negligence standards are inapplicable and emergency vehicles are protected unless operated with reckless disregard for others. An example of this is the 2014 Court of Appeals decision inFrezzell v. City of New York.2 Two police officers were on patrol in Central Park when they received an urgent radio call that a fellow officer was engaged in foot pursuit of a man with a gun and in need of assistance. The first defendant drove from Central Park, against the legal flow of traffic, until reaching the first intersection, where he made a left turn, heading westbound on the eastbound one-way street. Plaintiff Kent Frezzell, another on-duty police officer, responded to the same call, and his travel to the call location involved him traveling correctly eastbound on the one-way street. The officers saw each other's vehicles seconds before impact and attempted to avoid the accident, but nevertheless collided head-on.

The Court of Appeals explained that VTL §1104 grants drivers of emergency vehicles special privileges when involved in an emergency operation, including "disregarding regulations governing the direction of movement or turning in specified directions." The court held that driving against the flow of traffic fit into that exception and then discussed whether or not the defendant police officer's conduct rose to the reckless disregard level. Although the officer was driving the wrong way on a one-way street, his lights and siren were activated, he was only travelling approximately 15-25 mph in a 30 mph zone and he tried to avoid the collision by braking hard and turning. Accordingly, his conduct did not rise to the level of "reckless disregard," and the city was granted summary judgment.

Similarly, in Asante v. Asante,3 a police vehicle collided with another car while crossing an intersection against a red light. At the time of the accident, the officer was responding to a "10–85" radio call of an officer in need of assistance. Because the officer's action (proceeding past a red light) was covered under §1104(b)(2), she was entitled to the reckless disregard standard of negligence. The court noted that upon reaching the intersection, the officer had observed plaintiff's vehicle travelling perpendicular to it. The officer stopped her vehicle and waited for plaintiff's vehicle to also stop prior to attempting to go past the front of that vehicle; however, both vehicles proceeded forward simultaneously, resulting in the accident. The court found that the officer did not proceed with reckless disregard.

Both Frezzell and Asante illustrate situations where §1104 is applied properly. But Kabir only provides protection after the decision to violate a rule of the road is made, not while the decision is being made, and not if the officer, while still in an emergency situation, chooses to be more cautious. In Kabir, an officer, who was responding to an emergency, rear-ended the plaintiff's vehicle, when he momentarily looked down from the road to look at his patrol car's information terminal. Though he was responding to a burglary, he was going below the speed limit at the time of the accident. The Kabir court found that he was operating outside of the exemptions illustrated by §1104(b) and only entitled to the ordinary negligence standard.

Unfortunately, this ignores the intent of VTL §1104. The statute was created in order to protect emergency responders when faced with an emergency situation. If the intent of a statute is to shield emergency responders from ordinary negligence during emergency situations in order to encourage a prompt response, those responders should be protected in all emergency situations. And, if it is also the responsibility of emergency responders to protect the public, courts should not disincentivize responsible behavior.

Instead, by ignoring the intent of the statute, the Kabir rationale has handcuffed emergency responders by giving greater protection to an emergency responder when speeding (reckless disregard standard) than to a police officer involved in an accident while looking at his or her mobile data terminal (negligence). Kabir not only ignored the intent behind VTL §1104, but left future courts with the burden of applying an unworkable standard which predictably led to anomalous results in the years following.

Post-Kabir Cases

A string of post-Kabir decisions have troublingly failed to protect emergency workers. In Tatishev v. City of New York,4 the First Department found that ordinary negligence applied when a police officer struck a pedestrian while turning left on a green light. InLoGrasso v. City of Tonawanda,5 an officer was held to the ordinary negligence standard because he stopped before proceeding past a stop sign. If he had disregarded the stop sign he would have been rewarded with the higher reckless disregard standard.

In Katanov v. County of Nassau,6 an officer responding to an emergency call struck a pedestrian in the site's parking lot and was held to the ordinary negligence standard. The court in Fajardo v. City of New York7 found that an emergency vehicle changing lanes should be held to the ordinary negligence standard. Finally, in Gonzalez v. City of New York,8 an en route fire truck was held to ordinary negligence while making a right turn at a green light.

Fortunately, the confusing post-Kabir decisions did not escape criticism. A multitude of solutions have been proposed from a variety of sources, ranging from practitioners to the Legislature. Faced with such negative reaction to the decision, some of the appellate courts have begun to shoehorn cases into the exceptions established by Kabir in order to restore some of the statute's intent and protect these emergency workers. Doing so has greatly broadened the definition of the Kabir factors.

Over the last two years, the courts (and specifically the Third and Fourth Departments) have avoided being bound by the illogical standard established in Kabir and have chosen to consider U-turns and other turns as exceptions under §1104(b)(4) in which the driver of an authorized emergency vehicle may “[d]isregard regulations governing directions of movement or turning in specified directions.” In a way, the decision to interpret §1104(b)(4)’s “turning in specified directions” as separate from the preceding phrase, “disregard regulations governing…” has created a fifth exception. This line of decisions is the first step to overcoming Kabir’s legal straitjacket.

In Dodds v. Town of Hamburg,9 a patrolling officer was traveling in the right southbound lane when he noticed a vehicle with a snow-covered windshield and the driver's head out the side window travelling in the opposite direction. The officer checked for other vehicles in his rear-view mirror, looked to his left and began to execute a U-turn to pursue the vehicle. A vehicle travelling in the left lane crashed into the side of the officer's vehicle as he was executing the U-turn.

For the reckless disregard standard to apply, the Fourth Department needed to find that the officer was performing an act exempted by VTL §1104(b). The court found that the officer's behavior did fall within one of those exemptions, concluding that, "by attempting to execute a U-turn, the officer's conduct was exempted from the rules of the road by §1104(b)(4)" and should be governed by the reckless disregard standard of care. By finding that the officer's U-turn was a disregard of government regulations governing direction of movement or turning in specified directions, the court deliberately expanded the types of activities previously limited byKabir.

The Third Department followed this reasoning in Jones v. Albany County Sheriff's Department.10 A police officer observed a fellow officer on the side of the road appearing to have difficulty with a detained suspect. The officer put on his four-way flashers and completed a U-turn, responding to where the officer was. After turning and travelling approximately 150 yards, plaintiff struck the police vehicle in the rear as the officer was pulling over to the side of the road.

While U-turns were not permitted in the particular location, the police officer was permitted to execute a U-turn, given that he was operating an authorized emergency vehicle and assisting another officer with an emergency. The officer did not act with reckless disregard for the safety of others since he slowed his vehicle, engaged his four-way flashers, moved to the far left lane, made a complete stop and waited for oncoming traffic to slow prior to executing the U-turn. The court also found that this situation fell into §1104(b)(4), though at the time of the accident he had already completed the turn and was proceeding straight.

In Williams v. Fassinger,11 plaintiff was injured when her vehicle collided with the defendant police officer's vehicle. The officer involved testified that as he was attempting to make a left turn, he slowly entered the intersection and, seeing a distance of approximately three car lengths into the opposite lane, did not see any traffic. The plaintiff testified that as she approached the intersection from the opposite direction of the officer, she "veered to the right" of the line of cars in the left-hand lane. The accident occurred when she proceeded straight through the intersection.

The Fourth Department found that the officer was entitled to qualified immunity because his failure to yield to oncoming traffic while executing a left turn at an intersection fell within an enumerated category of VTL §1104(b). The court found that the officer's conduct did not constitute recklessness, establishing that his left turn fit into the qualified immunity. Because the officer paused for a few seconds to ensure that there were no vehicles approaching the intersection from the other direction besides those waiting in the left-hand-turn lane, his behavior could not be considered reckless. Ostensibly, the only activity that the officer participated in that might have been applicable to §1104(b), was disregarding regulations governing turning in a specified direction, but the officer had not, in fact, disregarded any regulations while turning.

The Third Department again reinforced this reasoning in Rouse-Harris v. City of Schenectady Police Department.12 Plaintiff sued the Schenectady Police Department after being involved in a motor vehicle accident with one of the city's police vehicles. The officer made a left out of the police department's parking lot and struck the plaintiff's vehicle. Defendants moved for summary judgment on the ground that the police officer was entitled to qualified immunity under VTL §1104 since he was pursuing a suspect at the time of the accident and was not acting with reckless disregard for the safety of others. The trial court granted the motion, and the Third Department affirmed.

The court explained that the operator of an emergency vehicle is entitled to qualified immunity when involved in an emergency operation "such as pursuing an actual or suspected violator of the law." Here, the police officer was about to pursue a fleeing suspect that he had just observed, and, thus, he was involved in an emergency operation at the time of the accident and was entitled to qualified immunity. As in Williams, the court established that an officer is within the boundaries of §1104(b)(4) when making a left turn in an emergency situation, even if no regulation was disregarded.

The court further found that the police officer did not act with reckless disregard for the safety of others since prior to turning, he looked in both directions to ensure the roadway was clear of traffic. Moreover, defendant's failure to have lights and sirens on constituted nothing more than a "momentary lapse in judgment," and so his conduct did not rise to the reckless disregard standard. Therefore, the city was entitled to summary judgment.


As noted above, 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 an unworkable standard. Many post-Kabir cases have proven the dissent's predictions accurate. The Appellate Division departments had handed down troubling decisions following Kabir; however, they seem to have realized it is time to adapt.

In the wake of the cases after Kabir, the Kabir decision has been significantly broadened, and reason would follow that any turning movement a responder makes in an emergency situation is entitled to heightened protection. By reasoning that any directional turning entitles an emergency responder to the reckless disregard standard, the courts have taken steps to embrace the statute's original intent.


1. 16 N.Y.3d 217 (2011).

2. 24 N.Y.3d 213 (2014).

3. 135 A.D.3d 562, 22 N.Y.S.3d 848 (1st Dept. 2016).

4. Tatishev v. City of New York, 923 N.Y.S.2d 523 (2011).

5. LoGrasso v. City of Tonawanda, 930 N.Y.S.2d 129 (2011).

6. Katanov v. County of Nassau, 936 N.Y.S.2d 285 (2012).

7. Fajardo v. City of New York, 943 N.Y.S.2d 587 (2012).

8. Gonzalez v. City of New York, 936 N.Y.S.2d 892 (2012).

9. 117 A.D.3d 1428 (4th Dept. 2014).

10. 123 A.D.3d 1331 (3d Dept. 2014).

11. 119 A.D.3d 1368 (4th Dept. 2014).

12. 124 A.D.3d 1124 (3d Dept. 2015).

Kenneth E. Pitcoff and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley. Patrick Prager, a paralegal, assisted in the preparation of this article.



Reprinted with permission from the July 15, 2016 edition of the New York Law Journal © 2016 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. – 877-257-3382 -