The intent of New York Vehicle and Traffic Law Section 1104 was originally to protect operators of emergency vehicles from being subject to an ordinary negligence standard for personal injury suits arising out of emergency responses on the road. Instead of ordinary negligence, the statute required plaintiffs to prove the emergency responder’s “reckless disregard” under VTL 1104(e) as a prerequisite to liability. The emergency responder was given extra protection when answering an emergency call, as an expedient response is usually necessary in an emergency situation, and some traffic rules are often broken in the course of such a response.
However, the Court of Appeals’ 4-3 perplexing decision by Justice Susan Phillips Read in Kabir v. County of Monroe undermined the intent of VTL 1104 and created uncertainty and illogical results in the future of emergency vehicle litigation as evidenced in the subsequent cases of Tatishev, LoGrasso and Katanov.1
The Kabir decision sharply narrows the protection afforded to emergency responders under VTL 1104(e)’s reckless disregard standard to situations where the emergency responder is specifically engaged in the acts enumerated in 1104(b), such as: (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 directions or movement or turning in specified directions. While 1104(e) once required plaintiffs to establish an emergency responder’s reckless disregard in motor vehicle accidents (as opposed to ordinary negligence), Kabir now only imposes this higher burden of proof upon plaintiffs when the emergency responder is engaged in one of the specific acts of 1104(b).
The court held that an ordinary negligence standard governed the police officer’s conduct in Kabir because his conduct at the time of the impact did not fall into any of the four categories enumerated in 1104(b). In fact, the officer was actually traveling well within the speed limit and only momentarily glanced down at his laptop to ascertain the proper route to his destination when he rear ended the plaintiff’s vehicle. Applying this ordinary negligence standard, the court granted summary judgment in the plaintiff’s favor.
The vehement dissent in Kabir specifically forewarned that the majority decision was at odds with the very purpose of 1104 and would create “practical problems” by affording greater protection to emergency responders who violate the rules of the road, while denying this same protection to those who obey them. The dissent opined that the majority’s decision left unanswered questions as to how to apply the two different standards in cases where the emergency responder engages in protected conduct at some point in the route, but later engages in unprotected conduct or when the accident is attributable to multiple causes, some involving protected conduct and some not. The dissent deemed the decision unworkable in nature and ambiguous for these very reasons.
In order to understand the dissent’s concern for contravening the purpose of 1104, one must examine the courts’ pre-Kabir, broad application of VTL 1104(e)’s reckless disregard standard. In Mulligan v. City of New York, the Second Department deemed 1104(e) applicable where a responding police officer (with the vehicle’s sirens on) proceeded into an intersection with a green light just before colliding with plaintiff’s truck.2 The First Department similarly applied 1104(e) to a police officer proceeding with a green light during an emergency operation in Perez v. City of New York.3 In Hemingway v. City of New York, the Second Department applied 1104(e) where a responding police officer slowed down as he approached the subject intersection and just before colliding with the plaintiff’s vehicle.4
Pre-Kabir, the touchstone of the court’s analysis was whether the emergency responder was engaged in an “emergency operation.” If this was the case, 1104(e) was almost certainly deemed applicable. In fact, just a short time before the Court of Appeals handed down Kabir, the Second Department deemed 1104(e)’s heightened standard applicable to a police officer’s conduct in Gonzalez v. Zavala, even where the officer stopped at all red traffic lights during a high-speed chase and where it was the vehicle being pursued that struck the plaintiff.5
Perhaps among the more liberal and interesting applications of VTL 1104(e) was made by the First Department in Church v. City of New York, where plaintiff (a police officer) was injured when the police van in which he was traveling was struck by another vehicle.6 The police van was transporting prisoners from a precinct to central booking, with a civilian operator behind the wheel. Plaintiff testified that the van had no air conditioning and that the operator was rushing because there was a concern that the prisoners might pass out from the heat. Notably, the van was not equipped with emergency sirens or signals.
The operator was purportedly inattentive behind the wheel, driving 35-40 miles per hour in a 30-mile-per-hour zone when he abruptly applied his brakes and turned without signaling in order to avoid a collision. His vehicle traveled into the neighboring lane, where it was then struck by co-defendant’s vehicle. Despite the fact that the van was not equipped with emergency signals and was “rushing” simply to avoid the collapse of any prisoners, the court deemed the operator to be engaged in an emergency operation and held the plaintiff to a reckless disregard standard.
While some of these cases did apply 1104(e) within the realm of activities enumerated in 1104(b), the courts’ application of 1104(e) appeared to focus squarely on whether the emergency responder was engaged in an emergency operation, in accordance with the Court of Appeals’ pre-Kabir precedent in Saarinen v. Kerr.7 In fact, it does not appear that these cases even address whether the emergency responder’s conduct fell into the enumerated activities in 1104(b).
The very problems that the Kabir dissent foresaw became reality in Tatishev, LoGrasso and Katanov. In applying Kabir’s precedent to different factual scenarios also involving responding police officers, the Court of Appeals and Appellate Division Departments ultimately arrived at the same conclusion in these cases—that the protection afforded by 1104(e)’s reckless disregard standard is circumscribed to the specific acts of 1104(b).
In Tatishev, the First Department found that a mere ordinary negligence standard applied when a responding police officer made a left turn at a green light and struck the plaintiff in the crosswalk. Citing Kabir, the court held that the officer’s conduct during the emergency did not classify as any of the prescribed conduct enumerated in 1104(b). The court, thus, applied a mere negligence standard to the officer’s conduct and found that the immunity contemplated by the Legislature in creating VTL 1104(e) was not available to shield the defendant municipality from liability.
In LoGrasso, the Fourth Department also applied Kabir and found that the reckless disregard standard of 1104(e) did not apply when a responding officer struck the plaintiff’s vehicle after proceeding past a stop sign. This case presented a closer call because while 1104(b) does provide for application of the reckless disregard standard for emergency responders who run stop signs or lights, the court declined to apply it here because the officer did not actually disregard the stop sign, but rather, stopped and looked both ways before proceeding into the subject intersection. Ironically, by looking both ways, the officer placed himself outside of the higher burden of proof imposed by 1104(e) and was held to a mere ordinary negligence standard.
Most recently, on Jan. 17, 2012, the Second Department handed down yet another perplexing decision in Katanov v. County of Nassau. Defendant police officer in Katanov struck plaintiff pedestrian in the parking lot of an assisted living facility while responding to an emergency therein. Because the officer merely failed to see the plaintiff before the accident, the court held that his conduct did not fit within any of the 1104(b) categories and that an ordinary negligence standard would apply to his actions.
These cases confirm that Kabir yields and will continue to yield absurd results that afford greater protection to emergency responders who violate the rules of the road as opposed to those who obey them, as the court in Tatishev emphasized in holding the officer to an ordinary negligence standard that the officer drove within the speed limit, while the court in LoGrasso (in arriving at the same conclusion) emphasized that the defendant emergency responder proceeded with caution before the accident.
The court in Katanov opined that a mere failure to observe a pedestrian in a parking lot does not invoke extra protection, even during an emergency response. It appears as if the cautious and mindful emergency responder is now without the protection that the Legislature intended for them in enacting VTL 1104, while the officer who speeds or runs a red light is. Furthermore, the courts’ analysis appears to be relying less and less on whether an emergency operation is in progress at the time of the accident.
Unfortunately, the worst may be yet to come because the New York courts have yet to face the specific situations warned of by the Kabir dissent, i.e., where the emergency responder engages in both protected and unprotected conduct before the accident, or where the accident itself is attributable to both protected and unprotected conduct. Until the courts are forced to address these issues and further develop Kabir’s precedent, plaintiffs and defendants are left to guess which standard would apply. Inevitably, decisions involving hybrid emergency responder cases will arise in the near future.
It appears as if the Kabir decision has changed emergency vehicle litigation by encouraging emergency responders to act with the type of reckless disregard that the statute once used as a shield from liability for their municipal employers. By following Kabir, the courts have disregarded common sense and it is the Legislature’s responsibility to rectify this situation by amending VTL 1104 to reflect its initial intent.
Kevin G. Faley and Kenneth E. Pitcoff are partners at Morris Duffy Alonso & Faley. Jenna L. Mastroddi, an associate at the firm, assisted in the preparation of the article.
1. Kabir v. County of Monroe, 2011 Slip Op. 01609; Tatishev v. City of N.Y., 923 N.Y.S.2d 523 (1st Dept. 2011); LoGrasso v. City of Tonawanda, 2011 WL 4510428 (4th Dept. 2011); Katanov v. County of Nassau, 936 N.Y.S.2d 285 (2d Dept. 2012).
2. 664 N.Y.S.2d 484 (2d Dept. 1997).
3. 915 N.Y.S.2d 77 (1st Dept. 2011).
4. 916 N.Y.S.2d 167 (2d Dept. 2011).
5. 931 N.Y.S.2d 396 (2d Dept. 2011).
6. 702 N.Y.S.2d 274 (1st Dept. 2000).
7. 620 N.Y.S.2d 29 (1994).