Joseph Criscione,
Respondent,
et al.,
Plaintiff,
v.
City of New York, et al.,
Appellants,
et al.,
Defendant.
2001 NY Int. 141
In this appeal we consider whether a police officer who
was driving a patrol car in response to a 911 dispatch call to
investigate a family dispute was engaged in the "emergency
operation" of a vehicle as defined in Vehicle and Traffic Law
§ 114-b. We hold as a matter of law that the driver was involved
in an "emergency operation." Consequently, his actions should
not have been measured by the jury under ordinary negligence
standards, but rather by the "reckless disregard" standard of
Plaintiff Joseph Criscione and defendant Thomas Perrone, both New York City police officers, were on a tour of duty in Brooklyn, traveling in a police radio patrol car. Officer Perrone was the driver of the vehicle, while plaintiff sat in the front passenger seat and served as the recorder.[1] After completing a precinct assignment, the officers received a radio call from a police dispatcher to investigate a 911 call regarding a family dispute. En route to the site of the complaint, the patrol car entered an intersection and collided with a civilian vehicle operated by defendant Sandra Ferro. Plaintiff suffered injuries as a result of the accident.
Plaintiff commenced this action against Perrone, the
City of New York and Ferro. During the liability phase of the
bifurcated jury trial, Perrone testified that, prior to the
accident, he and plaintiff received a "10-52" radio call from a
dispatcher, who stated that a female caller "needs police at
location. Male is kicking the door." Explaining that the Police
Department used different code designations for radio calls,
Perrone indicated that in 1994 a "10-52" call referred to a
"dispute" under the category of "non-crime incidents."[2]
He
At the close of evidence on liability, plaintiff moved for a directed verdict, requesting the court to rule, as a matter of law, that Perrone was not involved in an emergency operation in the context of Vehicle and Traffic Law § 1104. Plaintiff relied primarily on Perrone's testimony that the 10-52 call did not constitute an emergency situation under either departmental rules or in his judgment. Supreme Court reserved decision on this motion. The City responded with a motion to dismiss the complaint and for a directed verdict, arguing that Perrone was operating an "authorized emergency vehicle" engaged in an "emergency operation" pursuant to Vehicle and Traffic Law §§ 101, 114-b and 1104. The City further asserted that it was entitled as a matter of law to a jury instruction regarding "emergency operation" and a charge that the officer's conduct could only be assessed under the "reckless disregard" standard, not by the less stringent negligence standard otherwise applicable.
Supreme Court denied the City's motions and submitted
Three provisions of the Vehicle and Traffic Law underlie the issue in this appeal. Vehicle and Traffic Law § 101 sets forth the categories of vehicles designated as an "authorized emergency vehicle," and police vehicles are specifically listed in the statute. Section 114-b describes the vehicular operations that constitute "emergency operation":
"The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or
working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service" (emphasis added).
Furthermore, the driver of an "authorized emergency vehicle" engaged in an "emergency operation" is exempt from certain "rules of the road" under Vehicle and Traffic Law § 1104 (see, Riley v County of Broome, , 95 NY2d 455, 462 [2000]). But this qualified privilege does not relieve the driver "from the duty to drive with due regard for the safety of all persons, nor shall [it] protect the driver from the consequences of his [or her] reckless disregard for the safety of others" (Vehicle and Traffic Law § 1104[e] [emphasis added]).
Relying on the plain language of Vehicle and Traffic Law § 114-b, the City argues that Supreme Court erred in not holding as a matter of law that the officers were involved in an "emergency operation" where it was undisputed that they were responding to a 911 call for assistance relayed to them by a police dispatcher. The City contends that had Supreme Court properly held that the officer was engaged in the "emergency operation" of the patrol car, Perrone would have been entitled to the statutory qualified privilege to disregard certain rules of the road and could be liable only for any injury that resulted from the operation of the patrol car under a standard of "reckless disregard" for the safety of others.
Plaintiff asserts that section 114-b should not be
Our analysis begins with the plain meaning of the
relevant statutory provisions (see, e.g., Rosner v Metropolitan
Prop. & Liab. Ins. Co., , 96 NY2d 475, 479 [2001]; Majewski v
Broadalbin-Perth Cent. School Dist., , 91 NY2d 577, 583 1998]).
"We have recognized that meaning and effect should be given to
every word of a statute" (Leader v Maroney, Ponzini & Spencer,
2001 NY Slip Op 09260 [2001]). Section 101 classifies a "police
vehicle" as an "authorized emergency vehicle." Among the
particular circumstances that the Legislature specified in
section 114-b as qualifying as an "emergency operation" is the
operation of an authorized emergency vehicle "when such vehicle
is * * * responding to * * * [a] police call." Although section
114-b does not define the phrase "police call," we see no reason
why a radio call to officers on patrol by a police dispatcher
regarding a 911 complaint should not fall squarely within the
plain meaning of that term, nor do we discern any legislative
Given the legislative determination that a police
dispatch call is an "emergency operation," it is irrelevant
whether the officers believed that the 10-52 call was an
emergency or how the Police Department categorized this type of
call. As we noted in Saarinen v Kerr (, 84 NY2d 494, 503 n3
[1994]), whether Perrone violated a New York City Police
Department policy in responding to this type of call "would
[merely] be an important, although not dispositive, factor in
determining whether [he] had acted recklessly." Thus, Supreme
Court erred in failing to conclude that Perrone was involved in
an "emergency operation" as a matter of law, and to instruct the
jury that Vehicle and Traffic Law § 1104 grants a driver of an
"authorized emergency vehicles" a qualified privilege to
disregard the ordinary rules of prudent and responsible driving,
subject to a "reckless disregard" standard of liability (see,
Vehicle and Traffic Law § 1104[e]; see also, Szczerbiak v Pilat,
, 90 NY2d 553, 556-557 [1997]; Campbell v City of Elmira, 84 NY2d
Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered.
1 According to trial testimony, a "recorder" is the officer responsible for memorializing the calls that are received and communicating with the police dispatchers.
2 The Police Department's "Radio Code Signals Card," which was introduced as an exhibit at trial, listed other "non-crime incidents," such as "vehicle accident," "alarm of fire" and "unusual incident (specify: aircraft crash, building collapse, etc.)."