Pedestrian Injured by Police Car Presents Sufficient Evidence to Overcome Summary Judgment

Personal injury lawsuits arising from car accidents are quite common, and liability is typically determined by assessing whether the defendant (often a driver) behaved negligently – that is, by failing to exercise that degree of care that a reasonably prudent person would have used under the same circumstances. As recently illustrated in the Second Department’s decision in Mouring v. City of New York, however, when the offending car is an “authorized emergency vehicle” that is “involved in an emergency operation”, the standard is more difficult to meet. In particular:

The manner in which a police officer operates his or her vehicle in an emergency situation may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others.

This purpose of this rule, which is codified in Vehicle and Traffic Law § 1104, is to afford operators of emergency vehicles freedom to perform their duties unhampered by normal rules of the road.

Here are the facts of Mouring, taken from the opinion:  

In the course of responding to a police call, Police Officer Nelson Fernandez, who was accompanied by Police Officer Leonard Davis, drove an unmarked police vehicle through an intersection against a red light. The police vehicle collided with another car in the intersection, and was propelled by the impact to hit the plaintiff, a pedestrian.

Defendants met their prima facie burden on summary judgment “by demonstrating that Fernandez and Davis, who were responding to a police call, were engaged in an emergency operation at the time of the collision, and that the officers’ conduct did not rise to the level of reckless disregard for the safety of others.”

The court held, however, that

plaintiff raised a triable issue of fact as to whether the officers acted in reckless disregard for the safety of others. Specifically, the plaintiff’s evidence, including an expert affidavit and deposition testimony of a police captain who reviewed the collision, raised triable issues as to whether the officers properly used the sirens, and whether Fernandez stopped the police vehicle before entering the intersection or slowed sufficiently, particularly in light of the large number of pedestrians in the area and certain conditions which allegedly obstructed the officers’ ability to observe traffic on the road that had the right of way.

Plaintiff was not entitled to summary judgment on the issue of liability, however, since he “failed to demonstrate, prima facie, that Fernandez and Davis were not engaged in an emergency operation at the time of the collision.”

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