Published on:

On 3 September 2008, on South Oyster Bay Road


On 3 September 2008, on South Oyster Bay Road, at or near its intersection with Ontario Avenue, Plainview, County of Nassau and State of New York, a motor vehicle accident occurred. As a result, a negligence action was brought to recover damages for the personal injury allegedly sustained by plaintiff. It is alleged that the County, its agents, servants or employees, were negligent, reckless and careless when they permitted a defective, unsafe and dangerous condition to exist and in failing to provide proper signage or sufficient warning to motorists with regard to an approaching lane closure, causing plaintiff to swerve to avoid the closed-off lane and hit a vehicle in on-coming traffic. Plaintiff and the County stipulated to include another defendant who performs the tree maintenance adjacent to highways as well.

Both defendants move for summary judgment dismissing plaintiff’s complaint on the grounds that plaintiff’s own culpable conduct and negligence was a substantial cause of the events that produced her injuries.

The Ruling:

Under the law, in a negligence action where municipal employees or agents were engaged in work on a highway, plaintiff must show that defendant acted with reckless disregard to the safety and welfare of others. New York Vehicle and Traffic Law exempts persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway, including hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway from obeying the traffic laws of the state or municipality. Nonetheless, the law requires these vehicles to practice due regard for the safety of all persons, and the exemption will not protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others. Thus, courts have precluded the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness.

On another note, the standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law. Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial.

Here, plaintiff claims that under the Emergency Doctrine she is entitled to protection from liability. Under this doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. However, use of the Emergency Doctrine requires that the situation faced by the person claiming protection of the doctrine was not of that person’s own making. Thus, the emergency doctrine does not apply here, as the party seeking to invoke it created or contributed to the emergency. Plaintiff’s failure to anticipate and react to the eventuality that she would be unable to move her vehicle into the right lane as planned precludes application of the emergency doctrine. Plaintiff’s negligent driving in the subject circumstances cannot be excused by the alleged emergency circumstance.

Accordingly, the County’s motion is granted on the grounds that it was not the proximate cause of plaintiff’s injury, and because plaintiff cannot present evidence that the County acted with reckless disregard. Plaintiff’s complaint and any and all cross claims against the County are dismissed. The other defendant’s cross-motion for summary judgment advocating and reiterating the County’s contention that plaintiff’s negligence is a superseding cause of the accident is similarly granted. Plaintiff’s complaint and any and all cross claims asserted against the other defendant are also dismissed. The other defendant’s motion to strike the Note of Issue and compel depositions and plaintiff’s cross-motion for discovery-related relief are also denied as academic.

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