You are here: / Vehicle and Traffic Law
,

Only an “Unexcused” Violation of a Provision of the Vehicle and Traffic Law Constitutes Negligence Per Se—Damages May Include Cost of Demolition of a Building Which Has Been Deemed a Safety Hazard

In the course of a decision finding questions of fact precluded summary judgment, the Fourth Department explained the doctrine of negligence per se as it relates to a violation of the Vehicle and Traffic Law, and the recoverable damages when property damage requires demolition of a building which was rendered a safety hazard.  The defendant-driver here struck plaintiff’s building which was then destroyed by fire.  The cost of demolition, which the town had ordered because the building was a safety hazard, exceeded the fair market value of the building prior to the accident. The court noted that the demolition costs could be recoverable damages. The court further noted that only the “unexcused” violation of the Vehicle and Traffic Law constitutes negligence per se.  Therefore the defendant’s guilty plea to a Vehicle and Traffic Law violation could be excused by the jury if the jury determined the driver acted to avoid an object in the road. In that situation, the violation would only constitute “some evidence” of negligence:

It is well settled that “the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se” … . Rather, it is the “unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se” … . If a trier of fact accepts as true the position that the driver swerved to avoid an object in the road, the jury may excuse the driver’s alleged negligence, in which case defendant would not have any vicarious liability for the accident … . * * *

It is well settled that the standard for assessing damages to property is the lesser of replacement cost or diminution in market value … . Here, it is undisputed that the cost of the required demolition exceeds the fair market value of the property before the accident. Defendant contends that plaintiffs’ damages are limited to the market value of the property before the accident, with no consideration of demolition costs, inasmuch as the full market value of the property before the accident is less than the repair or replacement cost. We agree with plaintiffs, however, that demolition costs are recoverable where the property to be demolished constitutes a “safety hazard beyond repair” … . There are also situations in which a property may be deemed to have a negative market value, i.e., where the cost to remediate the property exceeds the market value of the property … . Shaw v Rosha Enters., Inc., 2015 NY Slip Op 05305, 4th Dept 6-19-15

 

, , ,

The County Was Negligent Per Se Due to Its Violation of the Provision of the Vehicle and Traffic Law Requiring Loads in Open Trucks be Covered—Plaintiff Was Struck by Debris Which Came Off an Uncovered Load—The Governmental Immunity Conferred by the Executive Law During a Response to an Emergency (the Truck Was Carrying Debris from the Clean-Up After Hurricane Irene) Did Not Extend to this Situation (Purpose and Scope of the Government’s “Emergency” Immunity Under the Executive Law Explained)

Plaintiff was injured when a piece of lumber fell off an open truck owned by the county.  Plaintiff was driving her vehicle when the debris came off the county truck and struck her in the head. The county truck was being used to transport debris in the aftermath of Hurricane Irene. The Third Department determined that, by transporting unsecured debris in an open truck, the county had violated Vehicle and Traffic Law 380-a (1) and, therefore, the county was negligent per se.  The court interpreted Vehicle and Traffic Law 380-a to mean that a prima facie case of a violation of the statute is made out by proof a load in an open truck was not covered. Once that showing is made, the owner of the truck will not be deemed to have violated the statute, despite the lack of a cover, if the owner can show the load was secure such that no cover was required. No such showing was possible here.  The court rejected the county’s argument that the emergency-related immunity conferred by the Executive Law applied here. The court noted the purpose of the Executive-Law immunity is to allow the government to make decisions during an emergency—which roads to clear first, for instance—without fear of liability, but the “emergency” immunity did not insulate the county from liability for its negligence in every context:

Executive Law § 25 (1) provides that, “[u]pon the threat or occurrence of a disaster, the chief executive of any political subdivision is hereby authorized and empowered to and shall use any and all facilities, equipment, supplies, personnel and other resources of his [or her] political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.” To be sure, this statute, which vests a political subdivision’s chief executive “with the power to respond to a local disaster or the immediate threat of a disaster, . . . reflects an awareness by the . . . Legislature that in emergency situations prompt and immediate unilateral action is necessary to preserve and protect life and property” … . Consistent with that awareness, the statute further provides, as noted previously, that “[a] political subdivision shall not be liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of any officer or employee in carrying out the provisions of this section” (Executive Law § 25 [5]).

In our view, the scope of the immunity conferred by Executive Law § 25 is clear. When faced with a disaster, a political subdivision’s chief executive may, for example, decide where to set up a makeshift hospital or aid station, prioritize and determine which streets to clear or allocate supplies and personnel as he or she sees fit, and such discretionary determinations, in turn, will not serve as a basis upon which to expose the political subdivision to liability. In other words, a disgruntled homeowner who is confronted with a flooded basement and is living on an impassable residential street cannot seek to hold a locality liable for damages simply because its chief executive deemed it more important to first clear a path to the local hospital or to pump out the holding cells in the local police station. That said, the immunity conferred by Executive Law § 25 (5) does not, to our analysis, grant a political subdivision carte blanche to perform a discretionary function in any manner that it sees fit — particularly in a manner that poses a danger to the traveling public. Here, a valid — and discretionary — determination may well have been made that the removal of storm debris from, among other locations, the DPW garage was a priority and, further, that transporting such debris in open containers was the most efficient and expeditious way to do so. The discretionary nature of these broad, resource-based decisions, however, did not obviate the need for defendants to comply with the provisions of Vehicle and Traffic Law § 380-a (1) in terms of the actual transport of such debris. As the immunity conferred by Executive Law § 25 (5) does not, in our view, extend to the particular facts of this case, Supreme Court properly denied defendants’ cross motion for summary judgment dismissing plaintiff’s complaint. …

Vehicle and Traffic Law § 380-a (1), which provides that “[i]t shall be unlawful to operate on any public highway any open truck or trailer being utilized for the transportation of any loose substances, unless said truck or trailer has a cover, tarpaulin or other device of a type and specification . . . which completely closes in the opening on. . . said truck or trailer while said truck or trailer shall be so operated, so as to prevent the falling of any such substances therefrom. However, if the load is arranged so that no loose substance can fall from or blow out of such truck, the covering is not necessary.” * * *

In our view, in order to discharge her initial burden on her motion for summary judgment, plaintiff need only have shown that defendants failed to utilize a cover; at that point, the burden shifted to defendants to demonstrate that no statutory violation actually occurred because the load was arranged in such a manner that no cover was necessary. To hold otherwise would place a nearly insurmountable burden upon plaintiff, as the manner in which the container was loaded and the contents were arranged inevitably lies within the exclusive knowledge of defendants… . Pierce v Hickey, 2015 NY Slip Op 04914, 3rd Dept 6-11-15

 

, , ,

No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

, ,

Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

,

Presumption Vehicle Was Being Driven with the Owner’s Consent (Vehicle & Traffic Law 388) Was Not Overcome by Testimony of Vehicle Owner and Her Daughter—Summary Judgment Should Not Have Been Awarded on that Ground

The Second Department noted, in the context of a summary judgment motion, the testimony of the vehicle owner, Varela, and her daughter, an interested witness, was not sufficient to rebut the presumption that another was driving the vehicle with Verela’s consent (Vehicle and Traffic Law 388):

The Supreme Court should have denied that branch of Varela’s motion which was for summary judgment dismissing the complaint insofar as asserted against her. “Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s express or implied permission” … . ” The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use'” … . The question of consent is ordinarily one for the jury … . Blassberger v Varela, 2015 NY Slip Op 04796, 2nd Dept 6-10-15

 

, ,

“Reckless Disregard” Standard of Care Applies to Operators of Street Sweepers in New York City—Standard Explained

The Court of Appeals determined the “reckless disregard” standard in Vehicle and Traffic Law 1103, not the ordinary negligence standard, applied to the operator of a New York City street sweeper who was in the process of cleaning the street when the sweeper struck plaintiff’s car.  A question of fact had been raised whether the applicable standard of care was violated:

… [U]nder VTL § 1642, the City of New York is authorized to establish additional rules, including rules that supercede those of the State (see VTL § 1642 [a] [“the legislative body of any city having a population in excess of one million, may by local law . . . restrict or regulate traffic on or pedestrian use of any highway . . .]). At the time of the accident, 34 RCNY [Rules of the City of New York] § 4-02 (d) (1)(v) provided that VTL § 1103 applies “to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” and that “such persons are not relieved from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions of this subparagraph protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others” (34 RCNY § 4-02 [d] [1] [iv]).

In Riley [95 NY2d 455], this Court held that the unambiguous language of VTL § 1103 (b), as further supported by its legislative history, made clear that the statute exempts from the rules of the road all vehicles, including sanitation sweepers, which are “actually engaged in work on a highway” (95 NY2d at 460), and imposes on such vehicles a recklessness standard of care (see id. at 466). The Court further concluded that liability under that standard is established upon a showing that the covered vehicle’s operator “‘has intentionally done an act of an 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 has done so with conscious indifference to the outcome” (id. at 466… ). Deleon v New York City Sanitation Dept., 2015 NY Slip Op 04788, CtApp 6-9-15

 

,

Testimony by the Vehicle Owner that His Vehicle Was “Missing” at the Time of the Accident Did Not Overcome the Statutory Presumption the Vehicle Was Being Driven with the Owner’s Consent at the Time of the Accident

The Second Department determined the evidence at a framed issue hearing was insufficient to overcome the statutory presumption that Woodley’s vehicle was being driven with the owner’s consent at the time of the accident.  The driver of the Woodley vehicle at the time of the accident was not known.  Woodley testified only that the vehicle was “missing” at the time of the accident.  Woodley also testified that only he and his wife had keys to the vehicle and the keys were found in the vehicle after the accident:

Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission … . “The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use” … .

Although evidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use …, under the particular circumstances present here, the vehicle owner’s testimony that the vehicle was missing at the time of the accident, without more, was insufficient to overcome the presumption. Matter of State Farm Ins Co v Kathleen Walker-Pinckney, 2014 NY Slip Op 04018, 2nd Dept 6-4-14

 

,

Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment

The Second Department determined summary judgment should have been granted in an intersection collision case.  The plaintiff had the right of way and defendants’ vehicle failed to yield.  No question of fact was raised about plaintiff’s comparative fault:

The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield … . However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . Bennett v Granata, 2014 NY Slip Op 03968, 2nd Dept 6-4-14

 

,

The Amount of Alcohol Consumed by Defendant and the Extent of His Intoxication at the Time of the Vehicle-Accident Evinced “Wanton and Reckless” Conduct Which Supported a Punitive-Damages Award

The Second Department determined the award of punitive damages by the jury was supported by clear and convincing evidence.  Defendant was intoxicated at the time of the vehicle accident.  The fact that defendant was driving while intoxicated would not, standing alone, warrant punitive damages. However, other factors, including defendant’s high blood-alcohol level and his “incoherence” at the time of the accident evinced the requisite “wanton and reckless” conduct:

Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages … . However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others … . Chiara v Dernago, 2015 NY Slip Op 04444, 2nd Dept 5-27-15

 

, ,

Driver of Street Sweeper Which Struck Plaintiff’s Car Entitled to Statutory Immunity

The Third Department determined the driver of a street sweeper was engaged in highway work (re: Vehicle and Traffic Law 1103) at the time the sweeper collided with plaintiff’s vehicle.  Therefore the “reckless disregard for the safety of others” standard of care applied to the sweeper driver. The driver was working on a highway and had to make several passes to clean up spilled gravel.  Because it was a divided highway, the sweeper driver had to make a u-turn and return on the opposite side of highway to make another pass.  The immunity afforded by Vehicle and Traffic Law 1103 applies only when actual work on the highway is being done, not when a worker is driving to or from the work site. The Third Department held that the statutory immunity was available here, even though the accident did not occur as the sweeper was engaged, because the driver was forced to use a circuitous route to complete the assigned task:

With exceptions not applicable here, the safety rules and regulations set forth in the Vehicle and Traffic Law do “not apply to persons . . . while actually engaged in work on a highway nor . . . to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation” (Vehicle and Traffic Law § 1103 [b]…). If the person is “actually engaged” in work or a hazardous operation, the applicable standard of care is “reckless disregard for the safety of others,” but the exception does not apply where the person is traveling to or from the hazardous operation … . Matsch v Chemung County Dept. of Pub. Works, 2015 NY Slip Op 04374, 3rd Dept 5-21-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy