In Muniz v City of Schenectady, 2007 NY Slip Op 01662, the plaintiffs were injured when their car collided with the vehicle of a police officer who was responding to a call. The facts are described in the opinion as follows:
(The officer) had stopped at a stop sign on Mader Street and then, although construction blocked his view of Rosa Road, pulled forward into the intersection to make the turn without activating his lights or siren. When he saw plaintiffs' car approaching him in the northbound lane, Glasser stopped his vehicle in that lane, hoping that the car would either stop or proceed around him. Road conditions were wet due to a drizzling rain, however, and plaintiff Roy Muniz, the driver of the other vehicle, was unable to stop before colliding with the front driver's side of Glasser's cruiser.
At issue was whether the officer's conduct was reckless, since VTL s. 1104(a) exempts the drivers of authorized emergency vehicles responding to an emergency from liability for certain traffic violations unless the driver's conduct was reckless.
The Court concluded that there was an issue of fact as to whether the officer's conduct in this case rose to the level of recklessness:
In order to demonstrate reckless disregard for the safety of others, a plaintiff must show that the defendant "'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"... Upon our review of the record, we agree with Supreme Court that questions of fact exist regarding whether Glasser's conduct was reckless.
Here, Glasser testified at his examination before trial that although he was responding to a routine, nonemergency call, he began his turn onto Rosa Road despite his limited visibility. Moreover, the accident occurred at approximately 11:00 P.M. and road conditions were wet, but he did not activate his siren or emergency lights. Rather than completing his turn into the southbound lane of Rosa Road which was free from traffic he stopped in plaintiffs' lane of travel when their vehicle was only 20 to 30 yards away. Under these circumstances, questions of fact remain regarding whether Glasser consciously disregarded a grave risk that his actions would cause a collision and probable harm to plaintiffs (Internal ciatations omitted).
I agree wholeheartedly with the Court's holding. It seems to me that more often than not, appellate and trial courts have a tendency to find creative ways to decide issues of fact rather than allowing the fact finder to do so. Accordingly, I was pleasantly surprised by this opinion.