Campbell v. City of Elmira

Casey, J.

(dissenting). We respectfully dissent. There is no evidence in this record from which the jury could reasonably conclude that defendant’s fire truck was operated with reckless disregard for the safety of others, which is the appropriate standard of care in the circumstances (see, Vehicle and Traffic Law § 1104 [e]; Dugan v Longo, 169 AD2d 872). The undisputed evidence in the record establishes that the fire truck was traveling at no more than 20 miles per hour as it approached the intersection, with its lights, siren and air horn activated, and the fire truck slowed to less than 15 miles per hour as it entered the intersection. There can be no doubt that the fire truck had the right-of-way regardless of whether the traffic light was red or green in its direction (see, Vehicle and Traffic Law § 1104), and all other vehicles approaching the intersection, including plaintiffs motorcycle, were required to yield the right-of-way to the fire truck and come to a complete stop clear of the intersection (see, Vehicle and Traffic Law § 1144 [a]).

It is obvious that plaintiff failed to comply with the obligations imposed upon him by statute. His motorcycle was coasting at 25 to 30 miles per hour in the southbound passing lane as it approached the intersection, facing a red light. When he was between 200 and 300 feet from the intersection, the light turned green and he accelerated his motorcycle, passing two vehicles which remained stopped in the southbound driving lane. Plaintiff also saw that vehicles in the northbound lanes remained stopped at the intersection. Nevertheless, he proceeded into the intersection at 25 to 30 miles per hour and struck the fire truck on its side, near the rear wheel well.

The driver of the fire truck was not confronted with an actual and apparent danger in his path which he could have avoided. Nor was he traveling at high speed and without warning. The fire truck was operated in accordance with traffic regulations and the statutory requirements. It did not strike anything. It proceeded into the intersection slowly with the right-of-way and was struck by a vehicle which failed to yield the right-of-way. In these circumstances, the fire truck was the favored vehicle (see, Kirk v Magee, 1 AD2d 452, 454-455) and defendant cannot be held liable for its driver’s failure to anticipate that although other traffic had stopped at the intersection, plaintiff would fail to comply with his statutory obligation to stop his vehicle clear of the intersection (see, *740Garrett v City of Schenectady, 268 NY 219, 223; Kirk v Magee, supra, at 455-456). The fire truck driver’s failure to observe the motorcycle as it approached the intersection was, at most, the result of ordinary negligence, which is not the standard of care applicable in these circumstances (see, Dugan v Longo, supra, at 874). The applicable standard of care is reckless disregard for the safety of others (supra) and there is no evidence in the record that defendant’s driver was recklessly indifferent to the consequences of his actions. The judgment should be reversed and the complaint dismissed (see, Garrett v City of Schenectady, supra).

Although the foregoing conclusion makes any discussion concerning comparative fault academic, we disagree with the majority’s conclusion regarding the jury’s finding on that issue. The undisputed evidence in the record establishes that plaintiff failed to yield the right-of-way to the fire truck and, therefore, violated Vehicle and Traffic Law § 1144 (a), which constituted some evidence of negligence (see, Ferrer v Harris, 55 NY2d 285, 293). Plaintiff proceeded into the intersection at about the speed limit despite having observed that all other traffic at the light remained stopped when the light turned green. He also failed to see or hear the fire truck approach the intersection, even though the fire truck had its lights, siren and air horn activated and was not traveling at high speed. Based upon the undisputed evidence in the record, no jury could rationally conclude that plaintiff was not negligent or that his negligence was not a substantial factor in the happening of the accident. Had plaintiff seen and heard what was there to be seen and heard, as other drivers at the intersection did, and had he complied with the requirements of Vehicle and Traffic Law § 1144 (a), as other drivers at the intersection did, the accident never would have happened.

Crew III, J., concurs. Ordered that the judgment is modified, on the law, without costs, by reducing the damage award by $55,000, and, as so modified, affirmed.