State of New York
Supreme Court : County of Monroe

- against -

Index No. 2000/1295

ANDREW V. SIRACUSE, J.

The summary judgment motions in this case concern the liability of a municipality for an injury resulting from the conduct of a driver being pursued by the police. On the night of September 30, 1999, as part of an undercover narcotics operation, Brockport police and others had placed a house in the village under covert surveillance. Defendant Richard Douyon was observed to drive up to the house and engage in behavior that suggested a drug buy, although none of the officers deposed observed money or drugs change hands. (The car was owned by defendant Michelle Jones, whose ownership is the sole basis for her presence in this lawsuit.) Officers involved in the surveillance then radioed to have Douyon stopped.

Other officers, responding to this call without a clear idea of what Douyon was wanted for, brought him to a stop on Holley Road in Brockport. One police car stopped behind him, and a second was coming up as an officer from the first car approached Douyon's vehicle on foot. At that point Douyon drove rapidly off, and the second car followed, with lights and siren. The driver of this car, the one involved in the pursuit, was Officer Mark Cuzzupoli.

Douyon drove west down Holley Road to the intersection with Redman Road, about a quarter of a mile from the stop. There is a stop sign at this intersection, but Douyon made a left-hand turn at Redman without stopping. According to police accounts he continued south on Redman, which is a four-lane road posted at 40 miles per hour, at 65 to 75 miles per hour, swerving into the northbound traffic three times and then back to avoid oncoming cars. Officer Cuzzupoli deposed that he slowed several times during his pursuit, first to negotiate the left-hand turn at Holley and Redman, and then to avoid additional danger when Douyon drove in the oncoming traffic lanes.

Officer Cuzzupoli deposed that he saw a red stoplight at the intersection of Redman and Fourth Section Road from about 2/10th of a mile away; this would be almost exactly one mile into the chase. He determined from Douyon's speed that the suspect would likely run this light, so he slowed his police car down. Unfortunately, Officer Cuzzupoli was correct; Douyon attempted to run the light but instead struck the plaintiff's car. Officer Mesiti, the drug investigator, then radioed that there had been a collision. This radio call was one minute and eight seconds after Mesiti sent a call that "we have a chase."

The plaintiff sued both the Village and County for his injuries, and both municipal defendants have moved for summary judgment. While the County challenges its liability on separate grounds, one of which--that its deputy was never involved in the chase--is clearly dispositive, the plaintiff has failed to present evidence that would establish a triable question of fact as to the liability of either movant. The standard for municipal liability for accidents arising out of police pursuits is a stringent one, and the plaintiff has failed to meet it.

The Court of Appeals set out this standard, based on Vehicle & Traffic Law § 1104 (e), in Saarinen v Kerr (84 NY2d 494, at 501):

Faced squarely with this question *** for the first time, we hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others. This standard demands more than a showing of a lack of "due care under the circumstances"--the showing typically associated with ordinary negligence claims. It requires evidence that the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" and he has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500).

This decision was rendered in the context of a defendant's summary judgment motion, and the Court of Appeals determined that the plaintiff had presented no evidence that would raise an inference of the officer's recklessness. In a case decided at the same time, where the plaintiff collided with a fire truck which had entered an intersection against a red light, the Court of Appeals upheld a jury verdict in the plaintiff's favor. In that case, Campbell v City of Elmira (84 NY2d 505), the plaintiff testified that he neither saw lights on the fire truck nor heard a siren, and the driver of the truck admitted that he did not check to see if the light ahead of him was red or green before proceeding through the intersection. This failure was sufficient to send the case to the jury. Application of this standard is necessarily fact-driven. Summary judgment was properly denied in Sisson v Sweeten (245 AD2d 1084 [4th Dept]), where there was independent evidence that the police had maintained a 90- to 100-mile-per-hour chase in a residential area and where the police vehicle almost collided with others at the accident scene (See, also, Lopez v Town of Gates, 249 AD2d 934). A verdict for the plaintiff was affirmed in Fioriello v Sasson (255 Ad2d 549 [2d Dept]) where the police officer testified that he had in fact considered that he or someone else might be killed if he continued the chase, but persisted regardless.

In Cavigliano v County of Livingston (254 AD2d 817 [4th Dept]), on the other hand, summary judgment was properly granted "[b]ecause there [was] *** no proof that the deputies acted in reckless disregard for the safety of others". The court held that police are "duty-bound *** to stop a lawless vehicle's forward progress", and "[w]hile *** wet road conditions and the intoxication of the driver increased the risk, they also 'increased the need for his immediate apprehension'" (254 AD2d, at 818, citations omitted).

The plaintiff, then, must show that there is a triable issue of fact as to the recklessness of the pursuing officer. Was Officer Cuzzupoli reckless? This chase took place very quickly, following a takeoff from a stop so severe that the passenger in the car testified that she was thrown back in her seat by the acceleration. There were reasons to suspect the driver of having committed a serious offense, though the exact nature was not disclosed at the time. Officer Cuzzupoli knew that the call had come from an officer connected with the drug stakeout, and assumed--correctly--that the stop was related to drug offenses. He had lights and siren on, and was the appropriate driver to conduct a chase; a state trooper, whom the plaintiff says was "ironically" not part of the chase, was in an unmarked car and his participation would have been dangerous and improper.

Officer Cuzzupoli testified that he was not driving at an excessive speed. He testified that on the two-lane Holley Road he did not exceed 45 miles per hour, and that he drove generally at 60 to 65 on the four-lane Redman Road. This is where plaintiff makes his most determined argument, bringing two expert affidavits to suggest that the chase was actually at 85 or 100 miles per hour.

There is no direct testimony that refutes the Officer's account. Instead, the experts' arguments begins with the timing of two broadcasts from Officer Mesiti, the one noted earlier that "we have a chase" and the second, 68 seconds later, that there was a collision. The plaintiff's experts reason that the average speed of the chase must have been approximately 70 miles per hour, because the 1 1/4 mile chase took just over a minute. Then, recognizing that the chase was slower on Holley Road, they argue that the cars must have been driving much faster on Redman Road to travel that distance in the time between the two transmissions.

This argument rests on a fundamental error. It assumes that the time between the two transmissions is the exact time of the chase. But there is no reason to believe that Officer Mesiti's broadcasts coincide precisely with the onset and conclusion of the chase. Moreover, Officer Cuzzupoli testified that he was far enough behind Douyon when the collision occurred that he had to accelerate to get to the scene. He thus may not have covered the full mile and a quarter when the broadcast of a collision was made, just as he may have commenced the chase some seconds before Officer Mesiti realized what had happened and signalled that there was a chase.

If Officer Cuzzupoli was indeed driving at 45 miles per hour on Holley Road, he would have traveled the quarter mile to the Redman intersection in 20 seconds. (At that speed a vehicle covers 3/4 miles per minute.) Driving at 60 miles per hour on Redman he would have come within sight of the red light (visible eight tenths of a mile from the Holley road intersection) in 48 seconds. The police account is thus entirely consistent with the timing of the transmissions. Moreover, given that we do not know what delays occurred between events and Officer Mesiti's broadcasts, even some seconds' variance cannot be the basis for an imputation of recklessness.

The plaintiff's papers also claim that the chase was nearing a highly populated area near the State University College at Brockport. That intersection, however, is a mile from the scene of the accident. This point is of little relevance, and in any event cuts both ways; proximity to a populated area also increases the importance of bringing a speeding vehicle to a stop before the risk of an accident grows even greater.

Plaintiff has also argued that the failure to tell Officer Cuzzupoli of the nature of Douyon's suspected offense or the license of the suspect car renders the action reckless. This is admittedly a violation of the procedure set out in the Brockport Police General Order 530, which covers chases and of which Cuzzupoli was unaware; but there is no causal connection between this technical violation and the circumstances of the chase. In any event, Cuzzupoli was chasing the right person, and one who was suspected of a drug offense; a rapid getaway from an apparently routine stop is proper grounds for pursuit; and the command structure of police departments requires officers to stop others at the request of their fellow officers when necessary.

Plaintiff also claims that, contrary to Officer Cuzzupoli's testimony, the case was carried out at dangerously close range. The only evidence for this is the passenger's testimony that she could see the red light from the police car in the Douyon vehicle. This witness admitted that she never looked back at the police car. Her vague testimony is consistent with the officer's statement that he was at varying distances from the Douyon car at different times, and does nothing to bolster the plaintiff's case.

Nothing in the plaintiff's papers presents a question of fact that would suggest recklessness, or a conscious disregard of likely injury. The expert affidavits rest on so many unreasonable assumptions that they should be rejected as a matter of law; stripped of their verbiage they are no more than speculation. This lack of substance dooms the plaintiff's complaint against the village and county both. It is not necessary, therefore, to address the issues of the county's liability for the acts of sheriff's deputies. It should be noted, however, that Deputy Ott's testimony that he never caught up with Officer Cuzzupoli is unrefuted, and it is thus impossible that any conduct on his part could have altered the course of events.

The motions for summary judgment are granted, without costs or disbursements. Counsel for the Village may prepare the order. The case remains viable, of course, against defendants Douyon and Jones.

DATED: Rochester, New York

July 2, 2001

Andrew V. Siracuse, J.S.C.

This decision was reversed in part by the Appellate division, Fourth Department, on June 14, 2002. A divided court held that the plaintiff's expert affidavits raised a question of fact as to the liability of the Village.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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