Snow Way They’re Paying for That: Limitations on Government Liability for Snow Plow Accidents
February 16, 2021
With all the recent snow Long Island has seen, and with more in the forecast, snow plows, sanders, and other emergency response vehicles have been a common sight. The time is right, therefore, for a quick word on the heightened burden plaintiffs face when suing a local government for auto accidents involving one of these vehicles while engaged in emergency operations.
In general, motorists on a public road are held to an ordinary standard of care when driving their vehicles and are obligated to observe the rules of the road. When an accident occurs, an ordinary negligence standard is applied, which asks whether the “accident occur[ed] because [the defendant] failed to see that which through the proper use of his or her senses he or she should have seen” (Katanov v Cty. of Nassau, 91 AD3d 723, 725 [2d Dept 2012]). However, where the defendant is the operator of a government emergency response vehicle in the course of responding to an emergency, the standard has the potential to shift significantly in the government’s favor. The Second Department’s recent decision in Kaffash v Village of Great Neck Estates, ____ AD3d ____, (2d Dept Docket No 2019-11574, Jan 13, 2021) provides a concise explanation of this doctrine, which is based in Section 1103 of the NYS Vehicle & Traffic Law (VTL).
One winter evening, an employee of the Village of Great Neck Estates was out driving a Village-owned snow plow following a recent snowstorm. While operating the plow in reverse, the rear bumper of the vehicle came into contact with the plaintiff who was walking in the middle of the street. The plaintiff sued the employee and the Village for personal injuries.
Before trial, the Village made a motion seeking summary judgment in its favor on the issue of liability. The lower court denied the motion, resulting in appeal to the Appellate Division, Second Department. The Appellate Court reversed, and granted the defendants’ motion. The Court wrote:
A snowplow operator ‘actually engaged in work on a highway’ is exempt from the rules of the road and may be held liable only for damages caused by an act done in ‘reckless disregard for the safety of others’” (Ventura v County of Nassau, 175 AD3d 620, 621, quoting Vehicle and Traffic Law § 1103[b]; see Joya v Baratta, 164 AD3d 772, 772-773; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705, 706). Reckless disregard requires more than a momentary lapse in judgment (see Saarinen v Kerr, 84 NY2d 494, 502; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 706). “This requires a showing that the operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” (Joya v Baratta, 164 AD3d at 773 [internal quotation marks omitted]; see Bliss v State of New York, 95 NY2d 911, 913; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 706).
Here, the defendants established their prima facie entitlement to judgment as a matter of law. In support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff and Oviedo-Mejia. Oviedo-Mejia testified that he was traveling in reverse at a speed of five to seven miles per hour with the lights and beeping alert of the snowplow vehicle activated. Oviedo-Mejia testified that he kept looking in the mirrors as the snowplow vehicle was moving in reverse, but he did not see the plaintiff prior to the alleged impact. Under the circumstances, the defendants demonstrated, prima facie, that Oviedo-Mejia did not act with reckless disregard for the safety of others (see Harris v Hanssen, 161 AD3d 1531, 1533; Roberts v Anderson, 133 AD3d 1384, 1385; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 707).
Ordinarily, driving a vehicle in reverse of a public road might have been sufficient to establish liability for negligence. However, the fact that the Village employee was engaged in storm response at the time the accident occurred meant that the lower standard of care applied to his activities. Accordingly, on the facts before it, the Court could not say the employee was “reckless” in his conduct. Therefore, the Court was compelled to rule in the defendants’ favor.
In contrast, the court in Piro v Village of Lake George, 299 AD2d 689 (3d Dept 2002), declined to apply the lower standard of care pursuant to VTL § 1103 to an accident involving a village official operating a village-owned snow plow. In that case, the defendant was the village’s Acting Superintendent of Highways. After completing snow-removal work in the village, the Superintendent drove the plow outside the village to his private residence where he plowed his driveway and street. As he then backed the plow into his driveway, the vehicle collided with the plaintiff’s, injuring him. On appeal, the Third Department affirmed the lower court’s finding that the ordinary negligence standard applied to the Superintendent at the time of the accident. The court opined that in plowing his own driveway and a street outside the village, over which the village had no jurisdiction, the Superintendent’s status was “no different from any private snow removal contractor plowing a client’s driveway” (299 AD2d at 690).
As the Practice Commentaries to VTL § 1103 explain “[the statute] evinces the intent of the Legislature to create a broad exemption from the rules of the road for vehicles engaged in construction, maintenance, or repair of highways. Rather than the ordinary negligence standard, drivers engaged in such activities are held to a lesser standard of care: “reckless disregard for the safety of others.” There are two initial questions, therefore. Was the driver engaged in a covered activity and, second, was that activity taking place on a highway? If so, the lesser standard applies” (Cunningham, Practice Commentary, McKinney’s Cons Laws of NY, 2018 Electronic Update, Vehicle and Traffic Law § 1103).
A copy of the Second Department’s Decision & Order can be found here: Kaffash Decision.