It is a rare occasion that New York State's highest court alters its thinking on a statute that plays a crucial role in determining liability - or the lack thereof - for a car accident case. But that is precisely what happened in the recent decision of Kabir v. County of Monroe, 16 NY3d 217 (2011).

Previously, in "When a NY Police Officer Causes Your Auto Accident" and "What is the "Emergency Doctrine" in a New York Car Accident Case?" we explained the rule that as long a police officer is in the process of responding to a call - even a non-emergent one - the police officer is deemed as a matter of law to be involved in the "emergency operation" of a vehicle, which will allow his actions (or inaction) to be viewed and evaluated under the vastly more permissive "reckless disregard for the safety of others" standard set forth in VTL §1104(e) rather than ordinary negligence.

That's no longer the rule of law in New York.

Instead, the Court of Appeals has now held that "the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence."

Thus, in order to avail himself of the "reckless disregard" standard, the emergency driver must be engaged in one of the following activities:

1. Stopping, standing or parking illegally;

2. Proceeding past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

3. Exceeding the maximum speed limits so long as he does not endanger life or property; or,

4. Disregarding the regulations "governing the directions of movement or turning in specified directions."

Although this rule seems to have some merit, I think that the dissent may have the better of the argument:

"The majority now ... preclud[es] emergency responders from obtaining the benefit of the reckless disregard standard unless-ironically-they violated one of the traffic rules listed in section 1104 (b). Police officers, firefighters or ambulance drivers who manage to obey traffic signals or travel within the speed limit are out of luck if they are involved in an accident. Their conduct will be assessed under the ordinary negligence standard, making it much easier for these "law abiding" emergency responders to be held liable for damages. Does this make sense?"

Given the strength of the dissent - and the powerful voice of emergency responders - I would be very surprised if a legislative amendment isn't proposed - if not passed - very soon.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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