KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com ********************** Is police response to burglar alarm not really an emergency? June 27, 2023 ************************ Is police response to burglar alarm not really an emergency? ************************ Here is a case with potential adverse consequence to the alarm industry. The question arose whether police response to a burglar alarm signal dispatch isn’t really an emergency, or at least enough of an emergency, to shield police from causing injury while responding to the alarm site. Before I describe the case in more detail let me tell you what court this comes from, because it’s important to understand the binding effect a decision can have on future cases. This case is not decided by New York’s highest court, which is the Court of Appeals. New York has four Appellate Divisions and this case comes from the Fourth Department, which is upstate New York. While this decision does not reach any truly adverse inference regarding burglar alarm signal dispatch those of you in the alarm business sensitive to police response will find the decision more than interesting and potentially a footing for future cases who either misinterpret its meaning or want to take the argument further. I’ll summarize the case and issue: New York State Trooper gets a police dispatch that burglar alarm signal received. He is driving 75 mph on a state highway with speed limit of 55 mph; no siren and no lights. A car [the Plaintiff ultimately] makes a left turn across the Trooper’s road and the Trooper’s vehicle broadsides the Plaintiff’s car. Plaintiff sues for injury; Trooper moves for summary judgment to dismiss the Complaint on the ground that police responding to emergency situation are not liable for negligence unless the Cop’s conduct was reckless [grossly negligence]. Whether a Cop is driving reckless would take into consideration “the nature of the road, traffic and weather conditions, the time of day, the speed of the officer's vehicle, and whether the officer followed departmental guidelines”. In this case, for whatever reason, the Trooper was not required to have lights and siren going. The lower court granted the Trooper’s motion to dismiss on the ground that as a matter of law his conduct was not reckless under the circumstances. So you understand the dynamics the Trooper had the right of way because he was going straight; of course in an ordinary car accident case the Trooper would be assigned a percentage of negligence, as would the Plaintiff who failed to yield the right of way, but because the Trooper is shielded by law for ordinary negligence the lower court granted the motion and dismissed the case. The Plaintiff appealed and the Appellate Division reversed and reinstated the case on the ground that under the circumstances a jury could find reckless conduct, and one factor in the consideration was that – just maybe – the Trooper should have known that it was a burglar alarm and not a real emergency. And, that is why this case is important to the alarm industry. The Appellate Division found this part of the record significant: “Defendant [the Trooper] submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a "possible burglar alarm." Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to "an alarm" at an address. We conclude that defendant's own submissions failed to eliminate triable issues of fact whether defendant acted with reckless disregard under the circumstances” And thus the Appellate Division concluded: “… defendant's [Trooper] evidence established only that the officer was responding to a "possible burglar alarm" and thus, unlike in Herod [responding to “fight in progress”], questions of fact exist whether the emergency to which defendant was responding justified his conduct.” When you read the case you should note that the Appellate Division had five justices participate on this case; three joined in the majority to make the ruling, however two justices dissented in their own decision, which is also below. I highlighted in BOLD what I thought you’d find interesting in the dissenting opinion. This case can go to the Court of Appeals as matter of right, and likely will. Should be interesting to see what New York’s highest court has to say. In meantime, all you can do is keep selling, installing and dispatching alarm signals. ***************** Gernattv.Gregoire Supreme Court of New York, Fourth Department Jun 9, 2023 2023 N.Y. Slip Op. 3094 (N.Y. App. Div. 2023)
No. 111 CA 22-00606 PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, MONTOUR, AND OGDEN, JJ.
06-09-2023
Appeal from an order of the Supreme Court, Erie County (Daniel Furlong, J.), entered April 13, 2022. The order granted the motion of defendant for summary judgment and dismissed the complaint.
It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking to recover damages for injuries he sustained in a motor vehicle accident. At the time of the incident, defendant was responding to a radio dispatch of a "possible burglar alarm" when his police vehicle, traveling in the northbound lane of travel, collided with plaintiff's vehicle as that vehicle was making a left turn from the southbound lane. Defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that at the time of the accident defendant was operating the police vehicle while involved in an emergency operation and that his operation of the police vehicle was not reckless as a matter of law. Supreme Court granted the motion, and plaintiff now appeals. We reverse.
Initially, we note that there is no dispute that defendant was operating an "authorized emergency vehicle" (Vehicle and Traffic Law § 101) and was" 'engage[d] in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b),'" i.e., exceeding the maximum speed limit (Torres-Cummings v Niagara Falls Police Dept., 193 A.D.3d 1372, 1374 [4th Dept 2021], quoting Kabir v County of Monroe, 16 N.Y.3d 217, 220 [2011]; see § 1104 [b] [3]). Contrary to plaintiff's contention, we conclude that defendant met his initial burden on the motion of establishing that defendant was involved in an emergency operation as contemplated by Vehicle and Traffic Law § 114-b (see Lacey v City of Syracuse, 144 A.D.3d 1665, 1666 [4th Dept 2016], lv denied 32 N.Y.3d 913 [2019]; see also Criscione v City of New York, 97 N.Y.2d 152, 157-158 [2001]; Allen v Town of Amherst, 8 A.D.3d 996, 997 [4th Dept 2004]). Plaintiff does not dispute that defendant established that he was responding to a dispatch call but instead contends that defendant failed to establish that the call was an emergency and that defendant's response thereto constituted emergency operation. We reject that contention. "Given the legislative determination that a police dispatch call is an 'emergency operation,' it is irrelevant whether the officer[] believed that the [dispatch] call was an emergency or how [the relevant department] categorized this type of call" (Criscione, 97 N.Y.2d at 158; see Coston v City of Buffalo, 162 A.D.3d 1492, 1493 [4th Dept 2018]; Lacey, 144 A.D.3d at 1666). Based on the above, we conclude that defendant's conduct is governed by the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e), rather than the ordinary negligence standard of care (see Lacey, 144 A.D.3d at 1666; see § 1104 [a], [b], [e]).
Nonetheless, we agree with plaintiff that defendant failed to meet his initial burden of establishing as a matter of law that his actions did not rise to the level of reckless disregard for the safety of others. The Court of Appeals has stated, as the dissent recognizes, that the "reckless disregard standard demands more than a showing of a lack of due care under the circumstances-the showing typically associated with ordinary negligence claims... Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that the actor has intentionally done 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 has done so with conscious indifference to the outcome" (Frezzell v City of New York, 24 N.Y.3d 213, 217 [2014] [internal quotation marks omitted]). While we certainly recognize that the reckless disregard standard is a heightened standard from ordinary negligence, the reckless disregard standard still "retains and recognizes the potential for liability as a protection for the general public against disproportionate, overreactive conduct" (Campbell v City of Elmira, 84 N.Y.2d 505, 513 [1994]).
Although, as noted above, "the nature of the underlying police call or the officer's perception of its urgency is irrelevant for purposes of ascertaining whether the officer was engaged in an emergency operation pursuant to Vehicle and Traffic Law § 114-b, the nature of the call nevertheless is relevant in determining whether a responding officer's conduct was in reckless disregard for the safety of others" (O'Banner v County of Sullivan, 16 A.D.3d 950, 952 [3d Dept 2005] [internal quotation marks omitted]; see Allen, 8 A.D.3d at 997). Moreover, other factors that are relevant in determining whether an officer's conduct amounted to reckless disregard include the nature of the road, traffic and weather conditions, the time of day, the speed of the officer's vehicle, and whether the officer followed departmental guidelines (see PJI 2:79A; see e.g. Portis v Yates, 207 A.D.3d 1137, 1138 [4th Dept 2022]; Coston, 162 A.D.3d at 1492; Connelly v City of Syracuse, 103 A.D.3d 1242, 1242-1243 [4th Dept 2013]).
Here, defendant submitted the deposition testimony of plaintiff, who testified that as plaintiff approached the intersection from the two-lane, hilly, wet road, he did not see any other vehicles when he activated his left turn signal. Plaintiff testified that he began his left turn and was already in the process thereof when he first noticed defendant's vehicle approaching his vehicle. Contrary to the dissent's position, plaintiff maintains that defendant failed to yield to plaintiff's right-of-way and did not concede the issue. Plaintiff further testified that defendant's vehicle was coming toward his vehicle at a "high rate of speed" and did not have on any headlights, siren or flashing lights. While there was evidence that defendant attempted to brake before colliding with plaintiff's vehicle, there was undisputed evidence that defendant's vehicle was traveling 70 miles per hour in a 55 mile per hour zone just prior to the collision and that defendant was still traveling 47 miles per hour at the time of impact with plaintiff's vehicle. Defendant submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a "possible burglar alarm." Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to "an alarm" at an address. We conclude that defendant's own submissions failed to eliminate triable issues of fact whether defendant acted with reckless disregard under the circumstances (see Portis, 207 A.D.3d at 1138; see generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
Contrary to the dissent's urging, our decision in Herod v Mele (62 A.D.3d 1269 [4th Dept 2009], lv denied 13 N.Y.3d 717 [2010]) and the other cases cited by the dissent do not compel a different result. In Herod, the officer was responding to a dispatch call of a "fight in progress" at the time of the accident (id. at 1270). This Court concluded that "[b]ased on the threat to the safety of the persons involved in the fight to which [the officer] was responding, he was duty-bound to use all reasonable means to arrive at the scene as soon as possible... [and] [t]he risks taken by [the officer] in responding to the call were justified" (id.). Unlike that case, here, defendant's evidence established only that the officer was responding to a "possible burglar alarm" and thus, unlike in Herod, questions of fact exist whether the emergency to which defendant was responding justified his conduct.
We therefore conclude that the court should have denied defendant's motion for summary judgment dismissing the complaint regardless of the sufficiency of plaintiff's opposing papers (see Winegrad, 64 N.Y.2d at 853).
All concur except Peradotto, J.P., and Lindley, J., who dissent and vote to affirm in the following memorandum:
We respectfully dissent because in our view the majority's determination in this case disregards materially indistinguishable case law and improperly dilutes the reckless disregard standard of liability, which is designed to constitute a higher standard than that applicable to ordinary negligence claims.
The subject motor vehicle accident occurred during daytime shortly before 10:00 a.m. when defendant, a New York State Trooper, was traveling northbound on a rural, two-lane road in a sparsely populated area while responding to a radio dispatch. Plaintiff, driving southbound on the road, attempted to make a left turn onto another road in front of the oncoming police car operated by defendant. Unable to stop in time, defendant struck plaintiff's vehicle on the passenger side, causing injuries to plaintiff. There is no dispute that defendant had the right-of-way and that plaintiff was later convicted of failing to yield the right-of-way in violation of Vehicle and Traffic Law § 1140 (a).
We respectfully dissent because in our view the majority's determination in this case disregards materially indistinguishable case law and improperly dilutes the reckless disregard standard of liability, which is designed to constitute a higher standard than that applicable to ordinary negligence claims.
The subject motor vehicle accident occurred during daytime shortly before 10:00 a.m. when defendant, a New York State Trooper, was traveling northbound on a rural, two-lane road in a sparsely populated area while responding to a radio dispatch. Plaintiff, driving southbound on the road, attempted to make a left turn onto another road in front of the oncoming police car operated by defendant. Unable to stop in time, defendant struck plaintiff's vehicle on the passenger side, causing injuries to plaintiff. There is no dispute that defendant had the right-of-way and that plaintiff was later convicted of failing to yield the right-of-way in violation of Vehicle and Traffic Law § 1140 (a).
We agree with the majority that defendant, in moving for summary judgment dismissing the complaint, met his initial burden of establishing as a matter of law that he was engaged in an emergency operation within the meaning of Vehicle and Traffic Law § 114-b at the time of the accident. We also agree with the majority that Supreme Court properly determined that the standard of care to be applied to defendant's conduct is "reckless disregard for the safety of others," as set forth in Vehicle and Traffic Law § 1104 (e), rather than ordinary negligence (see generally Kabir v County of Monroe, 16 N.Y.3d 217, 222-223 [2011]). Unlike the majority, however, we conclude that defendant also met his initial burden of establishing that his conduct did not "rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach" (Szczerbiak v Pilat, 90 N.Y.2d 553, 557 [1997]), and in response plaintiff failed to raise an issue of fact. Thus, in our view, the court properly granted defendant's motion for summary judgment dismissing the complaint, and we would therefore affirm.
As the Court of Appeals has made clear, the reckless disregard standard "demands more than a showing of a lack of 'due care under the circumstances'-the showing typically associated with ordinary negligence claims" (Saarinen v Kerr, 84 N.Y.2d 494, 501 [1994]). Rather, liability under the reckless disregard standard "is established upon a showing that the covered vehicle's operator has intentionally done 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 has done so with conscious indifference to the outcome" (Deleon v New York City Sanitation Dept., 25 N.Y.3d 1102, 1105 [2015] [internal quotation marks omitted]; see Alexandra R. v Krone, 186 A.D.3d 981, 982 [4th Dept 2020], appeal dismissed 36 N.Y.3d 922 [2020], lv denied 37 N.Y.3d 907 [2021]).
Here, the evidence submitted by defendant established that he was traveling no more than 70 miles per hour when responding to the emergency, and that the posted speed limit in the area is 55 miles per hour. Data retrieved from the "black box" in the police vehicle showed that defendant started slowing down five seconds before the collision, decreasing his speed to 47 miles per hour by the time of impact. It is well settled that speeding by a police officer while operating an emergency vehicle during an emergency operation "certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)" (Saarinen, 84 N.Y.2d at 503; see Hubbard v Robinson, 184 A.D.3d 1097, 1099 [4th Dept 2020]; Michaels v Drake [appeal No. 2], 120 A.D.3d 1593, 1594 [4th Dept 2014]), and the record here reveals no other conduct allegedly engaged in by defendant that made it" 'highly probable that harm would follow'" (Saarinen, 84 N.Y.2d at 501).
Indeed, "[t]he other circumstances on which plaintiff and [the majority] rely-[i.e.,] the wet condition of the road[ and defendant's decision not to activate the emergency lights of the police vehicle]-are similarly unpersuasive, particularly in the context of an inquiry based on the 'reckless disregard' standard" (id. at 503). We considered a materially indistinguishable fact pattern in Herod v Mele (62 A.D.3d 1269 [4th Dept 2009], lv denied 13 N.Y.3d 717 [2010]), where there was evidence that, in addition to exceeding the posted speed limit, the officer "was traveling on wet roads without having activated the lights and siren on his police vehicle and... experienced a short-term reduction in visibility of the intersection where the collision occurred" (id. at 1270). We nevertheless concluded that "those factors also do not rise to the level of reckless disregard for the safety of others" (id.). As here, the officer in Herod "had the right-of-way at the intersection," and there was "no evidence of any traffic at or near that intersection other than [the] plaintiffs' vehicle" (id.). Inasmuch as there is no evidence that defendant violated internal policies of the New York State Police or regulations by not activating his emergency lights and sirens (cf. McLoughlin v City of Syracuse, 206 A.D.3d 1600, 1602 [4th Dept 2022]), our holding in Herod is dispositive.
Notably, the majority does not-and cannot-reasonably distinguish Herod. In the case before us, defendant, although speeding during his daytime response to a radio dispatch for a burglary alarm, was operating his vehicle within and in the direction of his lane of travel and had the right-of-way, and nothing in the record suggests that such a response to a suspected burglary, which defendant characterized as serious, was reckless (see Saarinen, 84 N.Y.2d at 503). Consequently, we see no basis to support the conclusion that a triable issue of fact exists on the issue whether defendant acted with reckless disregard. Because the majority's determination in this case contravenes the standard established by the legislature and applied in our case law, we decline to join in that result. ************************ STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** ALARM ARTICLES: You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles updated daily ************************* THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily. https://www.kirschenbaumesq.com/page/alarm-exchange ************************* Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth ****************************** Getting on our email list / Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. ************************** Ken Kirschenbaum,Esq Kirschenbaum & Kirschenbaum PC Attorneys at Law 200 Garden City Plaza Garden City, NY 11530 516 747 6700 x 301 ken@kirschenbaumesq.com www.KirschenbaumEsq.com
