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Peters v. City of New York11/23/2004
traffic (pedestrian and/or motor vehicle) so as to limit further injury to the parties involved and to the public. The EMS workers herein, in making their on-scene decisions, had to exercise discretion in quickly assessing the situation and deciding on a course of action, particularly in light of the fact that they were charged with the responsibility both to secure the accident scene as well as to treat the previously injured patient. There is thus no showing that the actions of the EMS workers were other than a "matter of judgment within the ambit of ordinary negligence for which no cause of action against a municipality will lie" (DiFlorio, 303 AD2d at 925).
The City and the NYCHHC "are immune from liability for errors in judgment in responding to an unfolding emergency situation," such as in failing to prevent oncoming traffic from colliding with a disabled vehicle (id. at 924-925). "'Immunity reflects a value judgment that - - - despite injury to a member of the public - - - the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear and second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury'" (id. at 925, quoting Mon v City of New York, 78 NY2d 309, 313 ). The actions taken by Buffa and Prescott were within the realm of discretionary governmental functions to which liability cannot attach.
In any event, the evidence submitted by the City and the NYCHHC demonstrated that any alleged negligence of the EMS workers in failing to properly secure the area of the first accident was not the proximate cause of the second accident, but merely set the scene for it (see Saviano v City of New York, 5 AD3d 581, 582 ; Whitehead v Reitoffer Shows, 304 AD2d 754, 755 ; Ely v Pierce, 302 AD2d 489, 489 ; Connolli v 81 and 13 Cortland Assocs., 285 AD2d 863, 864-865 ). Church-Ford testified at his deposition that he first observed the accident scene and saw either flares or cones in the roadway and a crowd in the area when he was " bout a block away." He also testified that he noticed the ambulance prior to contacting Peters' vehicle. Church-Ford further stated that he attempted to change lanes and was cut off by another car and ended up swerving back into his lane and hitting the accident scene. He also admitted that he had been drinking prior to the accident and that he was arrested at the accident scene.
Thus, inasmuch as Church-Ford has testified that he saw the accident scene from a block away, it is apparent that any lack of the EMS workers' conformance to the flare pattern set forth in the operating guide was not the proximate cause of Church-Ford's driving through the accident scene and causing the second accident (see Ely, 302 AD2d at 489). Consequently, the cross motion by the City and the NYCHHC for summary judgment dismissing Peters' complaint as against them in action # 1 and Cowan's complaint as against them in action # 2 must be granted (see CPLR 3212 ).
In support of his motion for summary judgment dismissing Cowan's complaint as against him in action # 2, Peters argues that action # 2 involves a rear-end collision by Church-Ford with his stopped vehicle, establishing a prima facie case of negligence on the part of Church-Ford (see Schmidt v Edelman, 262 AD2d 502, 503 ). He asserts that the cause of Cowan's accident was due entirely to Church-Ford's negligence, and that he cannot be held liable to Cowan in action # 2.
Cowan, in opposition, points out that Peters has no recollection of either accident and that he, consequently, has not established that the first accident did not occur as a result of
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