New York Vehicle and Traffic Law (hereinafter VTL) § 1103(b) provides that a driver of a hazard vehicle (snowplow, street sweeper, dump truck, garbage truck, etc.), may escape liability for injuries caused under certain circumstances. Drivers of hazard vehicles are protected from liability for the consequences of their negligence if their vehicle was “actually engaged in work on a highway,” and the driver has fulfilled their “duty to proceed at all times during all phases of such work with due regard for the safety of all persons.” VTL § 1103(b). Plaintiffs are required to demonstrate that their injuries are “the consequences of [the driver’s] reckless disregard for the safety of others.” (Emphasis supplied). VTL § 1103(b). When this standard applies, a plaintiff cannot recover without demonstrating that the hazard vehicle operator has “intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow . . . with conscious indifference to the outcome.” Saarinen v Kerr, 84 NY2d 494, 501 (1994). This is a heavy burden of proof for plaintiffs to sustain.



In Tighe v City of Saratoga Springs, 23 Misc 3d 1139[A], 2009 NY Slip Op 51199[U] (Saratoga County Ct 2009), a snowplow owned by the City of Saratoga Springs struck plaintiff’s automobile. After a bench trial it was found that the driver was operating the snowplow while snow, sleet, and freezing rain fell. The operator drove down a very narrow street along which snow banks had accumulated. He knew the street was covered with a layer of heavy snow and ice. It was early morning and still dark. He approached plaintiff’s car, which was on the opposite side of the street and facing the snowplow, and noted that plaintiff’s car, although parked legally, was not as close to the snowbank as it could have been. The driver estimated that the space through which the snowplow would have to pass was about one foot wider than the widest point of the vehicle. He slowed to a crawl. As he passed plaintiff’s vehicle, there was a gap about six to eight inches between the plow blade and plaintiff’s car. Before he passed the car, the plow blade dug into some ice on the operator’s side of the street. This caused the front end of the truck to shift suddenly to the left and the plow blade struck plaintiff’s car. Plaintiff testified that plow blades can dig in to ice during storms and there is no way to anticipate specifically when it will occur.

The driver was actually engaged in work on a highway at the time of the collision, the court determined that VTL § 1103(b) applied, and the city could be held liable only if the driver had acted with reckless disregard for the safety of others in his operation of the snowplow. “A person acts recklessly,” explained the court, “when he acts in conscious disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow." Tighe at 3.

The court found that plaintiff had met his burden of demonstrating that the driver had operated the snowplow with reckless disregard for the safety of others. It noted the dark and icy conditions. The court also discussed the margin of space between the plow blade and the car, finding it so narrow as to create a high probability of harm, especially considering the plaintiff’s testimony that the plow blade could dig into ice at any moment and cause lateral movement. “It was thus a known and obvious risk,” stated the court, “without, apparently, any attendant compelling reason to proceed.” In Tighe plaintiff sought to recover property damage. VTL § 1103(b) applies to property damage and personal injury cases.



In Sullivan v Town of Vestal, 301 AD2d 824 (3d Dept 2003), plaintiff was injured and her vehicle damaged when she lost control of the vehicle, having swerved to avoid a town vehicle operated by a town employee. Plaintiff had come to the crest of a hill when she suddenly observed the town vehicle moving slowly in front of her, traveling in the same direction. Defendant was entitled to immunity pursuant to § 1103(b) since he was acting within the scope of his employment with the town, and was not driving with reckless disregard for the safety of others.

The Third Department found that the town employee was acting within the scope of his duties while driving slowly along the highway, as he was observing a piece of roadway under construction, searching for hazards or debris. The court saw “no viable contention of recklessness considering the slow speed of the town vehicle and the driver’s engagement of various emergency hazard lights, even acknowledging the driver's testimony that it was common for people to speed when cresting the hill.” Id. At 825.

In Matsch v Chemung County Dept. of Pub. Works, 128 AD3d 1259 (3d Dept 2015), plaintiff was injured when a streetsweeper, operated by a defendant county employee, collided with the car she was driving. The county employee had been assigned the task of cleaning gravel which had spilled across a four lane divided highway. Due to the location and nature of the spill, this task involved the performance of U – turns at a break in the concrete median, which would allow the streetsweeper to pass over portions of roadway multiple times. As the driver made the U – turns, she would raise the sweeper broom attachment off the ground, and place it back on the ground when she made it back to the spill. On her fourth pass, the employee moved into the passing lane in order to position herself for a U – turn. Plaintiff was attempting to pass the streetsweeper at the time, resulting in the collision. The trial court granted defendants’ motion for summary judgment dismissing the complaint. 

The Third Department found that the streetsweeper operator was actually engaged in protected work at the time. The court found that the operator had looked in her mirror and looked to her left and right before moving into the passing lane. The operator testified that she was traveling well below the speed limit with hazard lights and an overhead beacon light engaged. Her failure, then, to observe plaintiff’s vehicle, did not amount to recklessness. The judgment of the trial court was affirmed.

Similarly, in Kaffash v Vil. of Great Neck Estates, 190 AD3d 709 (2d Dept 2021), plaintiff was struck by a snowplow owned by the Village of Great Neck Estates and operated by a village employee. Plaintiff sued the village and the employee, alleging that the employee had reversed the snowplow and struck her in the back as she was walking in the middle of the street. Defendants’ motion for summary judgment was denied.

The Second Department found that the employee was continuously looking in the mirrors as he reversed the snowplow, but did not see plaintiff before the accident. The snowplow was moving at five to seven miles per hour, with audible and visible signals engaged. This conduct did not constitute reckless disregard.

Courts will consider the actions taken by a hazard vehicle operator to avoid a collision which seems imminent. In Howell v State of NY, 169 AD3d 1208 (3d Dept 2019), a snowplow clearing a lane of a state highway sideswiped a disabled minivan on the shoulder. Because the snowplow driver was clearing snow during a storm, the Third Department determined that the case should have been analyzed under VTL § 1103 which applies to vehicles engaged in roadwork, as opposed to VTL § 1104 which applies to emergency vehicles. The issue, then, was whether the snowplow driver had acted not with negligence, but, rather, with reckless disregard for the safety of others, in his operation of the snowplow.

The trial court had determined that the driver had been travelling at an appropriate speed with the plow extended to the right of the vehicle. Upon observing plaintiff’s disabled van approximately 300 feet ahead, the snowplow operator began gradually slowing the vehicle and retracting the plow. He reasoned that by the time the vehicles were side by side, the plow would have been retracted enough to avoid a collision. The snowplow driver could not move to the left, and traffic conditions limited the rate at which the operator could slow the snowplow. The plow blade was not retracted in time, but the operator had managed to minimize the damage. His “actions led to the wing plow sideswiping rather than running headlong into the minivan.” Id. At 1210. The court found that the snowplow operator’s actions were not in any way reckless. The judgment was reversed and the claim was dismissed.

Veralli v O'Connor, 190 AD3d 783 (2d Dept 2021) involved a New York State Department of Transportation employee who was operating a dump truck equipped with a snow plow blade and sand/salt spreader. Defendant was to remove snow and ice from a ten mile section of the Saw Mill River Parkway. As the end of his shift approached, defendant made one final pass to examine the road for snow and ice. The vehicle in which plaintiff was a passenger passed the dump truck, then skidded on a patch of ice, sending the vehicle into a guardrail. Defendant, having observed the accident, began to slow the dump truck and move to the right so as to avoid striking the vehicle. A collision occurred; the snow plow blade struck the right rear corner of the plaintiff vehicle. The trial court denied defendant’s motion for summary judgment. 

The Second Department determined defendant was “actually engaged in work on a highway” when the collision occurred. The Court considered defendant’s undisputed testimony that he was travelling below the speed limit, and began to slow and steer the truck away from plaintiff’s vehicle as soon as he observed the vehicle lose control. This testimony demonstrated that defendant’s conduct did not rise to the level of reckless disregard. The Second Department reversed and the case was dismissed.

In Alexandra R. v Krone, 186 AD3d 981 (4th Dept 2020), a minivan carrying ten occupants drifted into the shoulder of the New York State Thruway where it rear – ended a dump truck operated by an employee of the Thruway Authority. The dump truck was engaged in a clean up operation at the time of the collision. Three minivan passengers died and the rest were injured.

The Fourth Department considered whether defendant had acted with reckless disregard for the safety of others in the operation of the dump truck. The trial court had found that defendant knew or should have known that vehicles occasionally leave the roadway at a high rate of speed due to motorists being tired, distracted, or inattentive. The driver had parked the truck on the shoulder to the left of the yellow fog line on or near rumble strips, with more than ten hazard lights activated all around the body of the truck. At the time of the collision, there were no hazards that would have limited visibility; weather and road conditions had been favorable. Based on these facts, the court was unable to find that defendant’s actions rose to the level of recklessness.

Plaintiffs’ additional argument that “defendant was reckless because Thruway Authority safety regulations require vehicles parked on the shoulder to be positioned ‘as far from traffic as feasible,’" was held not persuasive. Id. At 983. Although defendant might have been able to park farther from the travel lanes on a grassy median, a position which would have given the rumble strips greater effect, the court found that defendant’s failure to position the truck in such a way was “at most, a lack of due care under the circumstances, which is insufficient to impose liability under the recklessness standard.” Id. Judgment for plaintiffs was reversed.

In Rascelles v State of NY, 187 AD3d 953 (2d Dept 2020), plaintiff was traveling on a moped in the bike lane of a county highway when he was struck by a dump truck owned by the New York State Department of Transportation. The dump truck was engaged in the task of locating and removing a deer carcass from the highway.

Claimant commenced an action against the State to recover damages for injuries. The trial court found that the truck was traveling partly in the bike lane at a rate of 30 to 35 miles per hour, and that the driver and passenger were distracted by looking for the deer and reading the map on the passenger’s phone. Both the driver and the passenger failed to see observe plaintiff before the truck sideswiped him. The trial court found that the protection of VTL § 1103 applied removing the deer constituted work on a highway. Thus, defendant was entitled to the heightened standard of recklessness. The trial court found defendant had acted recklessly.

The Second Department reviewed the trial court’s finding of recklessness and noted that “reckless disregard . . . requires more than a momentary lapse in judgment.” Id. At 954. It found that claimant had therefore failed to meet his burden of demonstrating reckless disregard on the part of the dump truck driver. The claim was dismissed.



In Gawron v Town of Cheektowaga, 117 AD3d 1410 (4th Dept 2014), a truck owned by defendant Town of Cheektowaga and operated by defendant town employee struck the plaintiff’s vehicle. The truck was equipped with a plow and, at the time of the accident, employee was using the plow to clear water and debris from the roadway. Plaintiffs alleged that the plow caused water to splash onto the windshield of the truck, obstructing the employee’s vision and causing him to drift into an oncoming lane, where the collision occurred. Defendants cross-moved for summary judgment dismissing the complaint. Defendants appealed from the denial of their motion.

Defendants argued, and the Fourth Department agreed, that they were entitled to the protection afforded by VTL § 1103, the heightened standard of reckless disregard, because the truck was actually engaged in work on a highway at the time of the collision. Defendants argued further that plaintiffs had failed to establish that the employee had acted with reckless disregard in his operation of the truck. The Fourth Department found that some evidence presented could have permitted a jury to find that the town employee "had intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and [done] so with conscious indifference to the outcome." Id. At 1413. The driver of the snowplow was employed as a maintenance janitor and his normal duties included patching roads and driving trucks such as snowplows. At the time of the collision, the driver was on his lunch break. Having used a portion of his break at one town building, he used the snowplow to return to another town building to resume working. It was late March; the plow blade was only attached to the truck because the town had not yet removed it after the winter. The driver did not use the highway, and instead took the service road for “a change of scenery.” Id. at 1411. Though he had not been asked or directed to do so, and although this was “not a common endeavor,” the driver decided during this detour to clear the water and debris from the road. Id. The Fourth Department determined that it was a question of fact for the jury whether the driver had acted with “reckless disregard.”



Under the VTL, drivers of hazard vehicles engaged in work on highways will not be held liable for injuries caused by their negligence. VTL §1103(b). Drivers of hazard vehicles must be shown to have acted with reckless disregard in order for a court to find them liable. A plaintiff will not recover without demonstrating that the hazard vehicle operator has “intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow . . . with conscious indifference to the outcome.” Saarinen 84 NY2d at 501 (1994). This reckless disregard standard is a heavy burden of proof for plaintiffs.


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