*Vehicle and Traffic Law § 1104 (e) Cannot be Used as a Sword to Ward Off a Comparative Fault Defense

Vehicle and Traffic Law §1104 governs the conduct of the driver of an authorized emergency vehicle**, when involved in an emergency operation. And subsection (e) precludes the imposition of tort liability except where the conduct rises to the level of recklessness.

V&TL §1104(e) provides that: “The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

In Ayers v O’Brien, decided on December 17, 2009, a unanimous Court of Appeals held that an emergency vehicle operator may not assert that statute in an action in which he is the plaintiff, to prevent the defendant from raising a comparative fault defense based upon mere negligence and assumption of the risk.

The Court, by way of a footnote, citing Aldrich v Sampier, 2 AD3d 1101, 1103 (3d Dept 2003), points out that had a viable claim been made under General Municipal Law § 205-e, the result would have been different as comparative fault is not a defense in a General Municipal Law § 205-e action.

** An authorized emergency vehicle is defined by V&TL 101 as “every ambulance, police vehicle, fire vehicle, civil emergency vehicle, emergency ambulance service vehicle, environmental response vehicle, sanitation patrol vehicle, hazardous materials vehicle, and ordnance disposal vehicle of the armed services of the United States.”

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