By Kenneth E. Pitcoff and Kevin G. Faley

New York Vehicle and Traffic Law (hereinafter VTL) §1103(b) creates an exception to the general rule that vehicle owners and drivers may be held liable for damages proximately caused by their negligence. The exception protects drivers of hazard vehicles (snowplows, street sweepers, dump trucks, garbage trucks, etc.) from being held to the ordinary standard of negligence. Instead, they will be held to the reckless disregard standard which is a much higher standard and more difficult to prove. The reckless disregard standard applies when Defendant acts with a reckless disregard “for the safety of others” pursuant to the language of VTL §1103. N.Y. Veh. & Traf. Law § 1103 (McKinney). 


This exception only applies when the driver of a hazard vehicle is “actually engaged” in “hazardous operations” on or adjacent to a highway.

VTL §1103 dictates when hazard vehicles are traveling to and from hazardous operations the vehicle operator is not protected under the §1103 exemption. The drivers of the hazard vehicles fall under the standard of ordinary negligence rather than the heightened reckless disregard standard when traveling to or from operations. 

The legislative intent of §1103 is to protect the drivers of hazard vehicles from liability given the dangerous conditions of their work. A snowplow driver operating the vehicle during a snowstorm is more likely to be involved in an accident than an ordinary driver. Since the operators of these vehicles are performing a service that protects the community, there is an incentive to protect them and avoid imposing liability for ordinary negligence. 

This protection is often interpreted broadly by courts. Courts have offered considerably more protection to operators of hazard vehicles such as snowplows and street sweepers than is afforded to law enforcement vehicles and ambulances under VTL §1104. 



The protection for hazard vehicles has expanded as the interpretation of “actually engaged in work” has been broadly interpreted by Courts. 


In Rascelles v. State, 130 N.Y.S.3d 739 (2d Dept. 2020) Plaintiff commenced the action to recover damages for injuries he allegedly sustained when a New York State Department of Transportation (hereinafter DOT) dump truck, locating a deer carcass, struck his moped while the plaintiff was traveling in the bike lane on the highway. On appeal, Plaintiff argued that the DOT vehicle was traveling over the line into the bike lane because the defendant was distracted looking for the deer, watching the GPS map on the passenger's cell phone, and thus did not see Plaintiff's moped in the bike lane. The DOT truck was traveling between 30 to 35 miles per hour when it sideswiped the plaintiff’s moped. The Second Department held the evidence was insufficient to establish that the DOT workers exhibited a “reckless disregard for the safety of others.” The DOT workers were “actually engaged in work on a highway” at the time of the accident, and therefore the Court found the Defendant could only be held liable if the actions of the DOT employees constituted a reckless disregard for the safety of others.


Similarly, in Harris v. Hanssen, 75 N.Y.S.3d 407 (4th Dept. 2018) the Fourth Department held that a snowplow driver was still “engaged” in highway maintenance even though the truck blade was up momentarily. The accident occurred while a snowplow driver was plowing snow and salting the roads while on assignment for the town. Defendant failed to stop at a stop sign and struck the plaintiff’s vehicle. Despite the plaintiff’s testimony that the plow blade was up during the collision, it was ultimately held to be immaterial. Defendant testified that he slowed down while approaching the stop sign and was moving approximately 5 miles per hour prior to the intersection and then looked both ways for traffic but did not see the plaintiff. Though the snowplow’s blade was momentarily raised, the vehicle was still considered to be “actually engaged in work.”


In James v. Town of Babylon, 968 N.Y.S.2d 314 (App. Term 2013) a vehicle owner brought a small claims action against the Town of Babylon seeking recovery for property damage. The plaintiff’s vehicle was struck by a town-owned snowplow during snow removal on a town road. Plaintiff’s witness testified he saw the snowplow operator talking on a cell phone while plowing the snow. Further, the witness recalled that the snowplow operator drove on his street a second time and was still on her cell phone while plowing when she hit the plaintiff’s parked vehicle. The snowplow was proceeding at about 5-10 miles per hour. Defendant noted at the time of the accident she was finishing a 48-hour shift and that there was little room to maneuver the snowplow due to the parked cars. Defendant asserted that the phone call was actually to her dispatcher because the snowplow she was operating lacked a radio but claimed she had put the phone down at the time of contact. Since Defendant was in the process of snow removal, the Court found she was “actually engaged in work on a highway” at the time of the incident. The Supreme Court, Appellate Term, held the evidence did not establish the snow plow driver’s conscious indifference, as would be necessary to demonstrate a reckless disregard for the safety of others. 

Even when a vehicle operator is not operating a snowplow at the time of the accident, they still may be found to be “actually engaged” in work. In Orellana v. The Town of Carmel, No. 500842/2019, 2020 WL 13303839, at *1 (N.Y. Sup. Ct. July 24, 2020), Plaintiff commenced this action for personal injuries sustained by Plaintiff resulting from a motor vehicle accident which occurred in December of 2018. Plaintiff was proceeding westbound on a local road when her vehicle was struck by Defendant Town of Carmel’s motor vehicle operated by the Superintendent of Highways for the Town of Carmel Highway Department. The defendant had been driving northbound, stopped for a stop sign, and then proceeded northbound where he struck Plaintiff’s car. Defendants moved for summary judgment asserting that their conduct did not breach the reckless disregard standard set forth in VTL §1103. 

Plaintiffs argued that the defendant was not “actually engaged” in active highway maintenance at the time of the accident because the defendant was driving around in a passenger SUV observing road conditions rather than plowing or salting for example. The Court found Defendant was “actually engaged in work on a highway” at the time of collision because, although he was not operating a snowplow, he was operating his work vehicle to assess the condition of the road for snow treatment and removal. Defendant was found to be at work despite not operating a snowplow at the time of the incident. Further, since the protections of VTL §1103 apply, the evidence established that Defendant stopped for a stop sign, failed to look to the right after looking to his left, and then traveled into the intersection without yielding for Plaintiff. However, Plaintiff failed to proffer evidence supporting Defendant acted recklessly. Plaintiff even admitted to not seeing Defendant’s vehicle until she felt the impact. The Court dismissed the motion finding that Defendant did not act recklessly and thus was protected under VTL §1103. 


In Gawron v. Town of Cheektowaga, 984 N.Y.S.2d 715 (4th Dept. 2014), the Plaintiffs commenced an action for injuries sustained when a vehicle operated by the plaintiff was struck by a truck owned by the defendant Town of Cheektowaga, and operated by an employee of the Town. The town truck had its plow down at the time of the accident and the defendant was using the plow to remove water and debris from a public road. Plaintiffs alleged the water was propelled onto the windshield of the truck. Thus, blocking the defendant’s vision and causing him to cross into another lane and into the plaintiff’s vehicle. The accident took place after the defendant’s lunch break and was on the way back to another Town building to continue his work. Defendant noted he took an alternate route for a change of scenery. Neither party disputed that the defendant had not received any specific assignment to plow the water and debris from the roads on the day of the accident and did so on his own initiative. It also noted that it is not uncommon for Town employees to perform work on their own initiative to plow puddles like the defendant. The Court reasoned that whether or not the work was actually assigned does not determine if the vehicle was “actually engaged” in work. Here, the defendant’s plowing water and debris from the road was work despite not being assigned. Therefore, the exemption under VTL §1103 applied. However, the Court determined Plaintiffs submitted enough evidence from which a jury could reasonably find that Defendant acted with a reckless disregard of a known or obvious risk that would make it highly probable that harm would follow. 


In Riley v. Cnty. of Broome, 719 N.Y.S.2d 455 (2000) the accident in question occurred when the defendant was operating a street sweeper in Broome County. The defendant was driving about 2-3 miles per hour between the shoulder and the road. Plaintiff drove in the same westward direction as the street sweeper and collided with the street sweeper after seeing a “huge patch of fog.” The patch of fog was actually a cloud of dirt that was created by the sweeper. Plaintiff brought the action asserting the Defendant caused the accident. The Court of Appeals held the applicable standard of care was whether Defendant’s conduct was reckless rather than the ordinary negligence standard pursuant to VTL §1103 because the vehicle was clearly engaged in work on a highway. 



When is a hazard vehicle operator not “actually engaged” in work? 

The “actually engaged” in worked standard was limited in Zanghi v. Doerfler, 70 N.Y.S.3d 716 (4th Dept. 2018) when a town’s dump truck was empty and the dump truck driver was driving between different work sites. The town dump truck driver rear-ended the plaintiff’s vehicle as it was stopped at an intersection. Since the truck was empty at the time of the collision and was traveling between work sites, the exception of section VTL §1103(b) did not apply and the driver was held to the ordinary negligence standard. 


In Perez v. City of Yonkers, 163 N.Y.S.3d 859 (2d Dept. 2022) Plaintiff was allegedly injured when she was struck by a snowplow operated by Defendant and owned bythe City of Yonkers. Plaintiff was crossing Yonkers Avenue in the crosswalk at an intersection. Plaintiff commenced an action seeking to recover damages for personal injuries. Defendant moved for summary judgment contending that the snowplow operator was “actually engaged in work on a highway” at the time of the accident and did not act with reckless disregard. Based on Defendant’s testimony, Defendant was not driving on a particular plow route at the time of the accident. Instead, the snowplow operator was traveling from complaint site to complaint to treat the roads as needed. At the time of the accident, Defendant was not even at a particular complaint site and the subject roadway was deemed “okay” according to both Plaintiff and Defendant testimony. The Cout held that because Defendant was traveling between sites and the plow was raised, that he was not “actually engaged in work on a highway.” Thus, the VTL §1103 exemption did not apply. 


The definition of  “to or from such hazardous operations” is also broadly interpreted. 

In McDonald v. State, 673 N.Y.S.2d 512, 519 (Ct. Cl. 1998), at around 7:30 a.m. on a December morning, claimants departed from their New York home in their pickup truck for a road trip. Claimants proceeded south down Interstate Route 81. At around 10:00 am, the claimant’s vehicle was approaching Interchange 38, a four-lane divided highway that runs north and south with two lanes traveling in each direction. A vehicle was traveling south on Route 81 and approaching the exit ramp toward Interchange 38. The claimant’s pickup truck was followed by two automobiles, another pickup truck, and an automobile. The weather conditions were a mixture of snow and rain with slush in the passing lane.  As the claimant proceeded down the exit ramp, she noticed a snowplow heading southerly. The snowplow was in part in the driving lane and the other part in the Interchange 38 entrance ramp to Route 81. Just south of the Interchange 38 entrance ramp there is a U-turn area located in the highway median. Defendant’s snowplow started merging from the entrance ramp into the driving lane. As Claimant noticed the snowplow merging, she moved her vehicle into the passing lane, followed by the two vehicles behind her. The claimant was driving at about 50 miles per hour and the snowplow was traveling at a relatively slower rate of speed. As the three vehicles proceeded south down Route 81, the snowplow operator veered left sharply across the passing lane in an attempt to enter the U-turn area and travel north on Route 81. The claimant’s vehicle then struck the snowplow’s rear resulting in personal injuries to both claimants. 

One of the Claimant’s legal positions argued that section VTL §1103 was not applicable because the snowplow was not “actually engaged” in work on a highway at the time of the collision because it was “traveling to or from such hazardous operation.” The Court noted this argument lacked merit because the snowplow operator was not traveling to or from a hazardous operation at the time of the accident, she was in the process of completing the plowing job. Defendant snowplow operator noted she entered the southbound lanes on Route 81 and plowed the road surfaces until she made the U-turn to continue plowing the northbound lanes. Therefore, the VTL §1103 reckless disregard standard still applied because the snowplow operator was still in the process of work rather than traveling to or from hazardous operations which would not fall under the exception. The Court granted Defendant’s motion to dismiss and found that VTL §1103 applied. The Court found Defendant did not act with reckless disregard. 


In Freitag v. Vill. of Potsdam, 64 N.Y.S.3d 396 (3d Dept. 2017) the ourt broadly interpreted what it is to be a highway. The Court held that even a parking lot could be considered part of the highway. Here, the hazard vehicle was a heavy equipment operator that was cleaning debris from a municipal parking lot. During the cleaning, the hazard vehicle struck and then ran over a pedestrian. The parking lot in question was publicly accessible from multiple entrances adjacent to public roadways. The Court found that because the public had a “right of passage” through this lot, it constituted a highway for purposes of the VTL §1103 exemption. 



Lexington Ins. Co. v. N.Y. State Thruway Auth., # 2017-053-017 (N.Y. Ct. Cl. Dec. 5, 2017)

The claim in question arose from a motor vehicle accident that involved the Seneca Nation of Indians Department of Public Works (DPW) building in April of 2016. The accident involved a “skid steer” insured by Lexington Insurance Company and a dump truck owned by the New York State Thruway Authority. The skid steer was owned by the Seneca Nation and insured through Lexington Insurance. After the accident, Lexington determined the skid steer was a total loss valued at $36,250. At trial, the operator of the dump truck testified he turned off the road and as he turned left to go around the rear of the building, the skid steer suddenly appeared in front. After the collision, the dump truck operator shifted the vehicle into neutral and put on the parking brake. The dump truck driver was traveling between 5 and 10 miles per hour prior to turning left onto the service road behind the DPW building. However, Defendant testified he was going about 15 miles per hour at the time of the accident. The Court determined whether New York law applied to the claim as the property damage was to the skid steer owned by the Seneca Nation. Courts have previously held that state laws will still apply on Native American lands so long as their application will not interfere with the self-government of the reservation. The defendant was found to have been “actually engaged in work on a highway” at the time of the accident because he was in the process of delivering a load of millings. The Court held that given the speed of the dump truck it was insufficient to establish recklessness. The dump truckdriver  was not found to rise to a level of reckless disregard for the safety of others. The Court found Claimant failed to prove the claim and dismissed the claim in its entirety. 



In 2016, the New York Vehicle and Traffic Law was amended to include sanitation vehicles in the definition of "hazard vehicles." The amendment states that the definition of "hazard vehicles" includes "every sani-van and waste collection vehicle while engaged in the collection of refuse and/or recyclable materials on a public highway." N.Y. Veh. & Traf. Law § 117-a (McKinney). As a result, sanitation vehicles are no longer held to the ordinary negligence standard. Instead, the VTL §1103 recklessness standard is applicable. The heightened recklessness standard was applied to a sanitation vehicle by the Court in Shepard v. Town of Hempstead Sanitary, 0601645/2018. The action arose from a collision between the plaintiff's vehicle and a recycling truck owned by the defendant Town of Hempstead Sanitary District. The plaintiff alleged that the accident occurred because the truck workers waved him on to pass and then subsequently moved the recycling truck and impacted the plaintiff's vehicle. Additionally, the plaintiff asserted that sanitation trucks were not historically qualified as hazard vehicles and that the regular negligence standard should apply. The Court disagreed and appropriately applied the recklessness standard to evaluate the behavior of the sanitation truck under VTL §1103. The Court found there was no evidence to support a finding that the defendant acted recklessly despite the plaintiff's allegations of being waved on to pass. 


In order for the reckless disregard standard to apply under the VTL §1103 exemption, defendants must be “actually engaged in work on a highway.” Historically courts have interpreted the standard of reckless disregard broadly. When a hazard vehicle is traveling “to or from” work sites, the VTL §1103 exemption does not apply. Additionally, courts have also broadly interpreted what constitutes a “highway” pursuant to the language of the VTL §1103. Recent cases have expanded the limits of what is a hazard vehicle to sanitary vehicles and garbage trucks. This qualified immunity is a powerful tool in the defense of municipalities. 

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