Bill S4417-2011

Provides that no cause of action may be brought for damages as a result of the operation of an emergency vehicle when the operator was engaged in emergency operation

Provides that no cause of action may be brought for damages as a result of the operation of an emergency vehicle when the operator was engaged in emergency operation.






VOTE: COMMITTEE VOTE: - Transportation - Mar 13, 2012
Ayes (16): Fuschillo, Johnson, Larkin, Maziarz, McDonald, Nozzolio, Ranzenhofer, Robach, Young, Zeldin, Dilan, Diaz, Perkins, Smith, Stavisky, Valesky
Ayes W/R (3): Adams, Kennedy, Squadron




An act to amend the vehicle and traffic law, in relation to the operation of authorized emergency vehicles


This bill would overturn the Court of Appeals' recent holding in Kabir v. County of Monroe,__ N.Y.3d__ (February 17, 2011), in which the Court interpreted Vehicle and Traffic Law (VTL) § 1104(e) in a manner that reduces the protections for emergency vehicle operators engaged in emergency operations from certain lawsuits brought as a result of accidents involving their vehicles.


Section 1 of the bill would amend VTL § 1104(e) to clarify that the actions of an emergency vehicle operator who is involved in an accident during an emergency operation is to be judged by the standard of recklessness.

Section 2 of the bill would provide for an immediate effective date.


VTL § 1104(b) exempts drivers of authorized emergency vehicles from prosecution for certain violations, including stopping, standing or parking in prohibited places, passing through stop signs or signals, exceeding the speed limit and disregarding turning restrictions. VTL § 1104(e) provides that the "foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others." Until the Court's four-to-three decision in Kabir, many believed that VTL § 1104(e) required all of the actions of an officer t;:ngaged in an emergency operation to be judged by a standard of recklessness, and not just those actions set forth in subdivision (b).


This is a new bill.


In Kabir, a deputy sheriff responding to a burglary call momentarily looked down to check location. He could have just as easily been reaching for a microphone or checking his radar display. He was not exceeding the speed limit, but there was some traffic, and he struck the car in front of him. The trial court applied an ordinary negligence standard to his conduct,

notwithstanding that the driver was operating an emergency vehicle pursuing a suspect, and on that basis the deputy sheriff was found liable.

In response to Kabir's appeal, the Court of Appeals held that the reckless disregard standard of care in VTL § 1104(e) applies only "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)." According to the majority, if the driver is not violating these limited provisions, liability may be based simply on ordinary negligence even though the public servant was acting in an emergency. The three dissenting judges, in contrast, found that exempting the operation of a vehicle by a public servant responding to an emergency from simple negligence is the clear intent of the statute, and encouraged the Legislature to consider revision in order to "clarify its intent." Unless this holding is addressed with legislation clarifying the intent of the law, it will hamper police operations in emergency situations, negatively impact the ability of the law enforcement agencies to defend hundreds of traffic accident cases, and impose significant additional litigation costs on already tremendously burdened state and local governments.

Until the Court's February 17, 2011 decision in Kabir, it had widely been assumed that VTL § 1104 applied a reckless disregard standard in all collision cases where a police officer was in emergency status. The majority in Kabir, however, rejected this approach and relied on a technical interpretation of section 1104, one yielding incongruous results. The Court held that the reckless disregard standard only applies to four types of conduct that section 1104(b) specifically permits: illegally stopping; driving through a stop signal; exceeding the maximum speed limits; and disregarding rules regarding directions of movement or turning.

The law enforcement officer in Kabir was not speeding or engaging in conduct that would otherwise have violated a specified provision of the Vehicle and Traffic Law. Therefore, the Court held, he could be found liable for mere negligence even though he was responding to a burglary at the time of the accident.

As noted by the dissenting judges, the Court's holding will lead to case dispositions that contradict the original intent of the statute as well as common sense. Ultimately, this decision could lead to the anomalous result that an officer who obeys the traffic laws listed in section 1104(b) would be held to a negligence standard, but an officer who violates those laws would be subject to a standard of recklessness. For example: a police officer traveling on an expressway is alerted by radio to the location of a fleeing armed robber. The highway is busy. The speed limit is 55 mph. The officer observes a driver meeting the description of the robber and initiates a pursuit. The officer engages in conducted that would negligence, such weaving, but drives within the speed limit. Nevertheless, with his attention focused on the suspect vehicle, he collides with an innocent third party and is sued personally in Supreme Court. Under the Kabir decision, he is liable even though he was not reckless.

By contrast, if the same police officer, under the exact same circumstances, were driving in excess of the speed limit and the rest of the facts remained the same, he would not be liable under the Court's decision because by violating a specified provision of the VTL (speeding) he earns the protections of the recklessness standard. In other words, by acting with a greater disregard for public safety, the public servant earns more protection from lawsuits. This result is incongruous. It encourages public servants responding to emergencies to act with lesser care and to violate the VTL whenever engaged in an emergency operation.

In addition, after Kabir, drivers of work vehicles have broader protection than operators of emergency vehicles. Under section VTL § 1103(b), the reckless disregard standard applies more broadly to drivers of vehicles engaged in work on a highway. Police officers and other emergency workers should not be afforded less protection than those performing work on a highway.

Finally, state and local governments will incur far greater costs in settling and defending traffic accident cases if Kabir is not overturned, as they will pay additional verdicts under the lower standard of care that will now be applied. When a police officer is involved in an emergency operation, he or she should not be liable for damages caused by a mere error in judgment while making split-second decisions under already stressful circumstances. This bill would correct these anomalies, and protect operators of emergency vehicles from unwarranted liability.


Failure to enact this legislation would likely cost the State and local governments with police departments large sums of money due to an increase in lawsuits for simple negligence brought as a result of car accidents involving their police officers and other emergency vehicle drivers.


This bill would take effect immediately.


STATE OF NEW YORK ________________________________________________________________________ 4417 2011-2012 Regular Sessions IN SENATE April 4, 2011 ___________
Introduced by Sen. MARTINS -- (at request of the Division of State Police) -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the vehicle and traffic law, in relation to the opera- tion of authorized emergency vehicles THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (e) of section 1104 of the vehicle and traffic law, as relettered by chapter 336 of the laws of 1968, is amended to read as follows: (e) [The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others] IN ADDITION TO THE IMMUNITY FROM PROSECUTION PROVIDED FOR IN SUBDIVISION (B) OF THIS SECTION, NO CAUSE OF ACTION MAY BE BROUGHT FOR DAMAGES AS A RESULT OF THE OPERATION OF AN EMERGENCY VEHICLE WHEN THE OPERATOR OF SUCH VEHICLE WAS ENGAGED IN EMERGENCY OPERATION AT THE TIME, PROVIDED THAT THE OPERATOR WHO WAS ENGAGED IN SUCH EMERGENCY OPERATION WAS NOT ACTING WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS. S 2. This act shall take effect immediately.


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