TITLE OF BILL:
to amend the vehicle and traffic law, in
relation to the operation of authorized
PURPOSE OF BILL:
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
SUMMARY OF PROVISIONS:
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.
STATEMENT IN SUPPORT:
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
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
This bill would take effect immediately.
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