Kenneth E. Pitcoff and Kevin G. Faley, New York Law Journal

September 7, 2016

New York Vehicle and Traffic Law (VTL) §1103 is an exception to the general rule that drivers and owners of vehicles will be found liable for damages proximately caused by their negligent acts. This exception protects drivers of hazard vehicles (street sweepers, snowplows, e.g.) from being held to an ordinary negligence standard while performing work on a publicly owned and maintained thoroughfare, accessible to the general public for vehicular travel.1 The protection applies when the operators of "hazard vehicles" are actually engaged in "hazardous operations" on or adjacent to a highway by holding them to a heightened reckless disregard standard of care.

VTL §1103 also controls when these vehicles are traveling to or from such hazardous operations; however, in those moments drivers are operating as general residents of the road, not in their capacity as hazard vehicle operator, and subject to the general negligence standard.

The reasoning behind this standard is to protect operators against liability arising from their hazardous surroundings. If a driver is operating in a snowstorm or clearing debris, there is greater potential for accidents. Since the operator of a hazard vehicle is providing a service to the community, the Legislature has decided not to impose liability for ordinary negligence, as this would disincentive these important jobs.

Some might be surprised to discover just how much protection is afforded to those who operate these vehicles. Courts have interpreted §1103 broadly, affording greater protection to the operators of snowplows and street sweepers than is even provided to police vehicles and ambulances under §1104. For instance, the standard for these hazard vehicles does not depend on the situation actually being hazardous, the type of work the operator is engaged in, or if the job they decide to perform was even actually assigned to them. While a hazardous condition could certainly exist when using a street sweeper, the statute applies simply if a hazard vehicle is being operated.

Recently, courts have continued to expand protections for these hazard vehicles by broadening the interpretation of the "actually engaged in work" language and liberally interpreting what behavior should be considered reckless.

Vehicle at Work

When is a hazard vehicle "actually engaged in work"?

In Gawron v. Town of Cheektowaga,2 the Appellate Division, Fourth Department, held that a snowplow operator was "actually engaged in work on a highway" within the meaning of VTL §1103 when he decided, on his own initiative, to remove water and debris from a service road.

The accident in question occurred while the snowplow operator, a municipal employee, was driving from one town building to another after his lunch break. While en route, the employee decided to use the plow attached to his truck to remove water and debris located on a service road. In doing so, the employee's view became obstructed by water that had propelled onto the windshield, causing him to cross over into an oncoming lane and collide with plaintiffs' vehicle.

The Fourth Department held that the employee was "actually engaged in work on a highway," despite the fact that the work was not assigned. The court noted the absence of any qualifying language limiting the term "work" in the statute. Thus, it did not matter that the employee was not specifically directed to remove the water and debris on the service road or that he was not assigned to perform any plowing that day. Since the employee used the plow for "work on a highway" during his employment hours, he was entitled to qualified immunity under VTL §1103.

In reaching its holding, the court noted that although the practice of plowing water from roadways was not a "common endeavor" for the town's maintenance employees, several employees had taken it upon themselves to do so in the past.

Matsch v. Chemung County Department of Public Works3 stems from a motor vehicle accident in which plaintiff's vehicle was struck by a street sweeper. The street sweeper was cleaning gravel that had spilled over an approximate one-quarter mile stretch of a four-lane highway. The driver drove eastbound on the highway and engaged the sweeper broom as she passed over the affected area. She then continued to drive eastbound, exited the highway to return to the westbound highway and then traveled approximately one-half mile to make another U-turn through a break in the concrete barrier in the highway to make another pass with the sweeper broom over the affected area. The employee did this three times and, during the course of traveling westbound prior to the employee's fourth pass, the employee struck the plaintiff's vehicle.

The Supreme Court granted the county's motion for summary judgment finding that the operator of the street sweeper was entitled to immunity pursuant to Vehicle and Traffic Law §1103(b). Plaintiff appealed.

Like Gawron, the primary issue in this case was whether the employee was "actually engaged" in protected work while operating the street sweeper westbound on the highway. The court found that the employee was not traveling from one work site to another at the time of the accident; rather, she was "actually engaged" in work at the time since it was necessary for her to pass over the affected area several times before it was entirely cleared. Therefore, the employee was held to the reckless disregard standard of care.

The court also found that the employee did not act with reckless disregard for the safety of others because she was travelling below the speed limit with her hazard lights and overhead beacon lights on. Even though the employee failed to see the plaintiff, she looked for oncoming traffic, and the reckless disregard for the safety of others standard requires more than a momentary lapse in judgment.

'Reckless Disregard'

Where does the "reckless disregard" standard apply?

In Deleon v. New York Sanitation Department,4 plaintiff claimed to have been rear-ended by a Department of Sanitation street sweeper as his vehicle was on the side of a street attempting to move away from the curb. The street sweeper operator contended that he rear-ended the plaintiff only after plaintiff swerved abruptly into his path. The street sweeper operator did not slow down or swerve before the contact occurred and admitted that he hit the plaintiff's vehicle with enough force to spin it 180 degrees.

Plaintiff moved for summary judgment on the issue of liability, and defendant cross-moved for summary judgment. The Supreme Court, Bronx County, denied the plaintiff's motion and granted the defendant's motion. The Appellate Division, First Department, found that pursuant to the Rules of the City of New York (RCNY), defendant was subject to an ordinary negligence standard of liability and that there were issues of fact as to whether defendant was the proximate cause of the accident.

The Court of Appeals acknowledged that Vehicle and Traffic Law (VTL) §1642 authorizes the City of New York to establish additional rules of the road that supersede those of the State of New York, but also noted that at the time of the accident RCNY §4-02(d)(1)(iv) provided that VTL §1103 applied to street sweepers. Accordingly, the reckless disregard standard of care applied to the street sweeper operator's conduct.

The court rejected plaintiff's claim that an ordinary negligence standard applied under RCNY §4-02(d)(1)(iii)(A) because, while this section requires street cleaners to obey the Vehicle and Traffic Law provisions during their operations, it does not override or negate the reckless disregard standard of care set forth in VTL §1103 (which directly applies to street cleaners). The court, thus, denied plaintiff's summary judgment motion under an ordinary negligence standard, though it also denied defendant's motion finding that there were issues of fact remaining to be tried as to whether the street sweeper was operated with reckless disregard.

Similarly, in Dejean v. Lawton,5 a livery cab driver was parked on the shoulder of a traffic circle near an exit ramp off of the Belt Parkway in Brooklyn when his vehicle was struck by a snowplow. After the District Court granted summary judgment for the defendant, plaintiff appealed, arguing that because the city regulation governing snowplows did not expressly set forth a standard of care, negligence should apply.

The Second Department, quoting Deleon, held that as the snowplow was a hazard vehicle it was covered by §1103 and defendant should be held to the reckless disregard standard. However, because questions of fact existed in regards to whether the defendant had acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, the appellate court found that granting summary judgment was improper.

Conditions Not Hazardous

Is reckless disregard the appropriate standard where conditions are not hazardous?

In Roberts v. Anderson,6 the Fourth Department found that the operators of a snowplow were not acting recklessly when they struck the plaintiff with the raised blade of their vehicle. The snowplow operators were removing snow and backed up into the plaintiff. The defendants had taken some precautionary measures (checking mirrors, providing a warning honk, and the truck had a backing up siren) but did not check to see if anyone was behind the vehicle, though there were two operators available to do so and their view was obstructed.

The vehicle was removing snow, it was actually engaged in work on a highway, and the operators were therefore held to the reckless disregard standard. Because they had taken some precautionary measures they could not be found to have acted with reckless disregard for the safety of others.

In James v. Town of Babylon,7 a witness on behalf of the plaintiff testified that at the time of the accident he observed the defendant snowplow operator talking on a cell phone. The defendant countered that she was proceeding cautiously and that the accident occurred as a result of a patch of ice on the roadway.

The trial court awarded plaintiff damages based on the fact that the defendant's use of a cell phone at the time of the accident was reckless. The Appellate Term reversed, finding that plaintiff failed to raise an issue of fact as to whether the defendant acted with reckless disregard for others. The appellate court accepted the trial court's finding that the defendant was indeed speaking on the phone at the time of the accident. However, the court did not find any evidence indicating that the defendant was acting with reckless disregard since the defendant was driving at a slow rate of speed and was maneuvering the snowplow through a tight roadway due to vehicles being parked away from the curb. Thus, the court found that, even if the defendant was using her cell phone at the time of the accident, her conduct did not rise to the heightened standard of liability imposed by VTL §1103.

Conclusion

The operators in Roberts and James were not performing their jobs in exceptionally hazardous environments, yet they were protected by the statute. While an emergency vehicle (police car, ambulance, e.g.) is required to actually be violating the rules of the road to elicit the reckless disregard standard under VTL §1104, hazard vehicles have greater protection as long as they are actually engaged in their work, regardless of whether an "emergency" or "hazardous" condition exists.

These expansions are consistent with past precedent concerning hazard vehicles. Consistently, the courts have found that VTL §1103 should be interpreted broadly, properly accommodating those who volunteer to serve their communities in hazardous conditions. This expansion should continue and hopefully influence a new interpretation of VTL §1104, so that all of those persons who choose to serve are properly protected from the dangers of their jobs when "actually engaged in their work."

Endnotes:

1. Groninger v. Vill. of Mamaroneck, 17 N.Y.3d 125 (N.Y. 2011).

2. 984 N.Y.S.2d 715 (4th Dept. 2014).

3. 9 N.Y.S.3d 724 (3d Dept. 2015).

4. 25 N.Y.3d 1102 (N.Y. 2015).

5. 26 N.Y.S.3d 162, 163 (2d Dept. 2016).

6. 19 N.Y.S.3d 843, 844 (4th Dept. 2015).

7. 968 N.Y.S.2d 314 (App. Term 2013).

Kenneth E. Pitcoff and Kevin G. Faley are partners of Morris Duffy Alonso & Faley. Patrick Prager, an associate, assisted in the preparation of this article.

 

Reprinted with permission from the September 7, 2016 edition of the New York Law Journal © 2016 ALM Media Properties, LLC. All rights reserved.

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