Even when speeding to an emergency, it is the duty of the driver and emergency services vehicle to show due regard to all other road users. It isn’t uncommon for people to find this concept counter-intuitive, or even immoral, especially when they are involved in an accident with an ambulance, fire truck, or other responder designed to serve and protect the community. New York’s highest court and the State’s laws governing the operation of emergency vehicles say different. Sirens, horns and flashing lights will never excuse a driver of an emergency vehicle to forget to take their most important tool to the emergency call- common sense and due regard.
Operators of emergency vehicles work under the burden of two competing priorities: to arrive at the scene as quickly as possible; but still to arrive safely, without causing an accident. On both ends of the scale, lives hang in the balance: the lives the first responders are racing to save on one side, and the lives of other motorists and pedestrians they encounter en route.
New York has long recognized the struggle to reconcile these two competing priorities. By statute, the law provides qualified immunity from liability for emergency vehicle drivers. Mot recently, New York’s highest court reaffirmed this legal protection, albeit on the proviso that the law is always used as a shield and not a sword.
In Ayers v. OBrien, 13 N.Y.3d 456 (2009), the plaintiff was a Broome County deputy sheriff. While executing a U-turn to pursue a speeding vehicle, his patrol car was struck by the motor vehicle being driven by the defendant (it seems the speeding car got away). Ayers sued O’Brien for his injuries, making the customary allegations of negligence. In his defense, O’Brien asserted the defense of comparative fault, and sought to hold the deputy accountable for his own lack of care in operating his cruiser.
Ayers moved to dismiss O’Brien’s affirmative defense, claiming that New York law allowed him a qualified immunity from liability while operating an emergency vehicle. Although the trial court agreed with the plaintiff’s position, the Appellate Division, Third Department did not, ruling that this defense was unavailable to Ayers since he stood in the shoes of a plaintiff, not a defendant.
The Court of Appeals of the State of New York agreed with the Third Department. In doing so, the Court of Appeals first examined the applicable statute. Notably, Section 1104 of the New York State Vehicle and Traffic Law (VTL) affords a number of privileges and protections to operators of authorized emergency vehicles, provided they are involved in an ‘emergency operation’. In relevant part, the statute specifies that the operator of an emergency vehicle may exceed speed limits (as long as such actions do not endanger life or property), “run” red lights and stop signs, and disregard normal restrictions on turns and directions of movement.
Nonetheless, these privileges are not without limitation, as the Court went on to note. The statutory text is clear. The emergency vehicle operator must always bear the burden of driving with ‘due regard for the safety of all persons’ and will suffer the consequences of driving with ‘reckless disregard for the safety of others’. (See, VTL 1104(e)). Indeed, as Judge Pigott opined, while the law does much to immunize an operator from liability in an emergency situation, the statute specifically does not protect the emergency vehicle driver ‘from the consequences of his reckless disregard for the safety of others’. Ayers at 458.
The Court of Appeals found the purpose of the law to be clear cut: to give operators of emergency vehicles the freedom to perform their duties unhampered by the nominal rules of the road. The law overcomes the concern that emergency personnel, worried about incurring civil liability, might be deterred from acting decisively and taking calculated risks in order to save life or property or to apprehend lawbreakers. This ‘reckless disregard’ standard, said the Court of Appeals, ‘allows emergency personnel to act swiftly and resolutely while at the same time protecting the public’s safety’. Ayers at 459 citing Saarinen v. Kerr, 84 N.Y.2d 494, 502 (1994). The statute precludes the imposition of liability for otherwise privileged conduct by an emergency vehicle operator, except where the driver’s conduct rises to a level of recklessness. The ‘recklessness’ standard is a heavy burden of proof to be carried by any party suing an emergency vehicle operator for injuries- it requires proof of something much more than simple negligence on the part of the emergency vehicle operator.
The point to be made, said the Court, is that this statutory protection is a shield, to be employed defensively. It is not a sword to be used offensively, and that meant trouble for Deputy Ayers’ legal position.
The essential difference, said the Court of Appeals, is that Ayers wanted to use the statutory immunity not to defend himself against allegations of negligence, but as a weapon aimed at eradicating O’Brien’s defenses. To allow that would be fundamentally unfair, for if it is the emergency vehicle operator who is the plaintiff then the operator’s conduct could not be held accountable unless it rose to the level of reckless disregard, while the other driver would be denied a defense normally available to him.
Essentially, an emergency vehicle operator enjoys a qualified immunity, subject to losing the shield only when guilty of reckless disregard in the performance of official duties. And while the Court of Appeals strongly reminds us of the special protections awarded those who put themselves in harm’s way to keep the rest of us safe, it reminds the very persons the law protects that they must still exercise due regard for the safety of others on the road.
Emergency responders are public safety personnel who are intimately involved in the maintenance of the public health and well-being. This responsibility transcends the patient in the back of an ambulance. It extends to our communities, fellow pedestrians and vehicle operators.
For more information on this topic, contact me directly.
Richard Jaffe is a founding attorney partner of the Law Office of Cohen & Jaffe, LLP, and also volunteers on Long Island, New York as a firefighter and Advanced EMT with Critical Care qualifications, fully classified as and Advanced Life Support (ALS) provider, and trained in techniques such as advanced airway management, IV fluid administration, cardiac monitoring/defibrillation and medication usage/administration in adult and pediatric patients.