New York residents/claimants, Wayne K. Rusho (driver) and Julie L. Rusho (passenger), were injured in an car accident when their vehicle was struck by a state owned, unmarked police car that made a U turn into oncoming traffic. A parole officer was driving the state owned vehicle at the time of the accident. He thought he saw a parole absconder driving in the other direction.
Claimants brought a motion for partial summary judgment on the issue of liability and the State cross-moved for summary judgment dismissing the claim. The Court of Claims judge denied claimants’ motion and granted the States cross-motion, dismissing the claim based upon V&T Law §1104. The Appellate Division reversed holding that the parole officer was not engaged in an “emergency operation” and the recklessness standard of §1104 did not apply. The parole officer admitted that if he was correct about seeing the parole absconder, he would have called the police for assistance (and not arrested the absconder himself). Accordingly, the Fourth Department found that the parole office was still in the investigatory phase and their pursuit was not an emergency.
The Court further found that the parole officer’s negligence was the sole proximate cause of the injuries. Claimants’ motion for summary judgment on liability was granted. Judge Carni dissented. In his view, the above facts indicated an emergency situation and that the parole officer’s actions were not reckless.