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8.2.23 – SSI – Ken Kirschenbaum

Question in New York case about whether burglar alarms are truly emergencies could shield police from liability from causing injury en route.

The question arose in a New York case whether police response to a burglar alarm signal dispatch is really an emergency, or at least enough of an emergency, to shield police from liability for causing injury while responding to the alarm site.

Before I describe the case (Gernatt v. Gregoire) in more detail, let me tell you what court this comes from, because it’s important to understand the binding effect a decision can have on future cases.

This case is not decided by New York’s highest court, which is the Court of Appeals. New York has four Appellate Divisions and this case comes from the Fourth Department, which is upstate New York.

While this decision does not reach any truly adverse inference regarding burglar alarm signal dispatch, those of you in the alarm business sensitive to police response will find the decision more than interesting and potentially a footing for future cases that either misinterpret its meaning or want to take the argument further.

I’ll summarize the case and issue: New York State Trooper gets a police dispatch that burglar alarm signal received. He is driving 75 mph on a state highway with speed limit of 55 mph; no siren and no lights. A car (the plaintiff ultimately) makes a left turn across the trooper’s road and the trooper’s vehicle broadsides the plaintiff’s car.

More About Police Response to Burglar Alarms

Whether a cop is driving recklessly would take into consideration “the nature of the road, traffic and weather conditions, the time of day, the speed of the officer’s vehicle, and whether the officer followed departmental guidelines.”

In this case, for whatever reason, the trooper was not required to have lights and siren going. The lower court granted the trooper’s motion to dismiss on the ground that as a matter of law his conduct was not reckless under the circumstances.

So you understand the dynamics, the trooper had the right of way because he was going straight. Of course, in an ordinary car accident case the trooper would be assigned a percentage of negligence, as would the plaintiff who failed to yield the right of way. But, because the trooper is shielded by law for ordinary negligence, the lower court granted the motion and dismissed the case.

The plaintiff appealed and the Appellate Division reversed and reinstated the case on the ground that, under the circumstances, a jury could find reckless conduct. One factor in the consideration was that — just maybe — the trooper should have known that it was a burglar alarm and not a real emergency. That is why this case is important to the alarm industry.

Burglar Alarm

The Appellate Division found this part of the record significant: “Defendant [the trooper] submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a “possible burglar alarm.”

Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to ‘an alarm’ at an address. We conclude that defendant’s own submissions failed to eliminate triable issues of fact whether defendant acted with reckless disregard under the circumstances.”

And thus, the Appellate Division concluded: “defendant’s [trooper] evidence established only that the officer was responding to a ‘possible burglar alarm’ and thus, unlike in Herod [responding to ‘fight in progress’], questions of fact exist whether the emergency to which defendant was responding justified his conduct.”

When you read the case, you should note that the Appellate Division had five justices participate in it; three joined in the majority to make the ruling; however, two justices dissented in their own decision. This case can go to the Court of Appeals as matter of right, and likely will.

It should be interesting to see what New York’s highest court has to say. In the meantime, all you can do is keep selling, installing and dispatching alarm signals.