A 13-year-old girl, lawfully in a Coney Island Avenue crosswalk on her way to school one May morning in 2008, was struck by an ambulance driver on his way to respond to an emergency.
The facts in Benn v. New York Presbyt. Hosp. reveal this case was not a clear-cut incident of wrongdoing as a pedestrian-vs-vehicle collision. However, the New York Supreme Court’s Appellate Division for the Second Judicial Department found there were enough triable issues of fact for the case to proceed.
Our New York City pedestrian injury attorneys know that of the nearly 6,800 pedestrians who were seriously injured in the city between 2002 and 2006, roughly 5,000 occurred in intersections. Of those, more than half were crossing legally, according to city data.
While drivers of ambulances and other emergency vehicles are given broad leeway with regard to what constitutes negligence in the course of their driving duties, the law does not permit these workers to act recklessly and put others’ lives in danger while responding to other emergencies.
In the Benn case, several witnesses, including a school crossing guard, attested to these facts: It was about 8:30 a.m. when the 13-year-old plaintiff stepped off a city bus in Brooklyn on her way to school, P.S. 99. In doing so, she had to cross the intersection of Avenue K and Coney Island Avenue, which is a two-way street with two lanes of traffic in both directions, but left turn lanes in each direction.
The girl had a “Walk” light as she proceeded into the intersection to cross Coney Island Avenue. She passed two vehicles stopped at the light, and was still crossing when she encountered the ambulance.
The ambulance driver was also traveling northbound on the street, but as he approached the intersection, his light turned green in his favor. However, the girl was still in the middle of the crosswalk. Witnesses say the ambulance did not slow down before striking the girl, causing her to suffer serious injuries.
Her mother, on her behalf, sued several defendants, including the city school crossing guard, the ambulance driver and his hospital employer.
The hospital moved for summary judgment on the ground that because the driver was responding to an emergency, he could only be held liable if it was shown he acted with reckless disregard for the safety of others. The city moved for summary judgment on the grounds of qualified immunity, and the assertion the crossing guard was engaged in discretionary duties (as opposed to ministerial duties, inherent in one’s job) and thus the city had no duty to protect the student.
The appellate court rejected all of these arguments. First, the appellate court noted the pedestrian lawfully entered the crosswalk, and was entitled to proceed. And while a driver with a steady green light is also entitled to proceed, he or she has a duty to yield to the right-of-way of pedestrians lawfully within the crosswalk. Failure to abide by this statute, which was the conduct that reportedly caused the injury here, is not protected conduct under Vehicle and Traffic Law 1104(b).
With regard to the city’s claim of no special duty, the appellate court conceded liability stems from a duty that runs from the city to the plaintiff, and there are a narrow set of circumstances under which this arises. One of the ways that special relationship is born is when the city assumes a duty that generates justifiable reliance by the person who benefits from that duty.
The court found the evidence here favored plaintiff’s position, given that the guard, seeing that a crash was imminent, blew her whistle, held up her hand and cried for the girl to stop. In doing so, the guard may well have been engaging in ministerial duties (those inherent in her job description), as the city failed, as a matter of summary judgment, to prove them discretionary.
As such, the claims against all defendants will proceed to trial.
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Benn v. New York Presbyt. Hosp., Aug. 6, 2014, Supreme Court of the State of New York, Appellate Division, Second Judicial Department
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New York Supreme Court: Double Parking Exception to Liability in Rear-End Crashes, June 25, 2014, New York City Personal Injury Lawyer Blog