Tuesday, February 6, 2018

Metaphysical doubt not enough to avoid summary judgment in high speed chase ase

I have never witnessed as high-speech police chase, but I litigated a police misconduct case arising from a high-speed chase 20 years ago, when the police attacked the driver when the chase came to and end. What I learned is that the courts do not regard these drivers as sympathetic figures. They are deemed dangerous individuals who put everyone else at risk. Unfortunately for the bystanders, there is also no case when the police have to chase down the guy who initiates the chase.

The case is Mfon v. County of Dutchess, a summary order issued on January 25. Plaintiff says he suffered injuries when he was struck by a driver who was fleeing police officers. Under New York law, the driver of an authorized emergency vehicle is exempted from certain traffic laws during an emergency operation. The driver is not exempt, however, from the consequences of his reckless disregard for the safety of others. The New York Court of Appeals has said that "a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others.” Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994).

The district court said, and the Court of Appeals (Katzmann, Kearse and Pooler) agrees that the police did not act recklessly as a matter of law, which means the jury will never hear the case.

Jonathan Besze fled from one or more police officers for approximately nine miles over a ten-minute period, for an average speed of 54 miles per hour. The chase took place after midnight, in clear weather, and on dry roads. During the chase, Besze illegally passed other vehicles, ran five red lights, and, on one occasion, drove the wrong way around a traffic circle. A passenger in Besze’s car submitted an affidavit stating that he feared for his life. The drivers encountered between 12 and 20 other cars on the road. The police officers testified, and no witness disagreed, that the drivers encountered no pedestrians. The chase ended when Besze struck Mfon’s car, causing him to sustain a cerebral concussion and traumatic brain injury.
This evidence supports the dismissal of Mfon's case, even though Mfon was an innocent bystander. Plaintiff does give it the college try. He argues that traffic conditions on the chase route were busier than recounted above. He references a traffic camera video of the intersection where the collision occurred and a video of a driver retracing the chase route two years later. This will not cut it. At best, this evidence only creates “some metaphysical doubt” about traffic conditions on the night of the chase and is insufficient to survive summary judgment. The Second Circuit cites Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), for the metaphysical doubt principle. What it really means is the creative arguments that sound great in the law office do not always make it in court because they consist of speculation, not substance. Mfon also says the chase was unusually long and that the officers failed to keep a supervisor fully apprised of the facts of chase, but these factors do not raise a triable issue of fact on recklessness where the chase took place late at night over dry, quiet streets and at moderate speeds.

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