And the reason for the Court's holding is readily apparent from the facts of Ayers v. O'Brien, where the police officer sued for the personal injuries he sustained when his cruiser collided with another car while making a u-turn in order to respond to a police call. In holding that the officer could not rely upon this statute to prevent the defendant driver from claiming that the police officer's negligence was at least partially responsible for the two-vehicle accident, the Court stated the following:
"Vehicle and Traffic Law §1104 (e) cannot be used as a sword to ward off a comparative fault defense. It is to be applied only when the emergency vehicle operator is sued or countersued. Plaintiff's proposed interpretation of the statute would shift the responsibility for any contributory negligence on the part of an emergency vehicle operator to the driver of another vehicle whom the emergency vehicle operator sues. This would result in significant unfairness in some cases. For instance, the operator of an emergency vehicle whose own negligence, while not rising to the level of reckless disregard, caused his or her injuries would be entitled to full damages even from a minimally negligent defendant. There is no evidence that such a financial windfall was intended or foreseen by the Legislature when it granted emergency vehicle operators greater freedom to disregard rules of the road while undertaking their responsibilities."