well here the next case my farm versus county of the duchesse county before i start i just want to kind of get the elephant out of the room with regard to this tort clearly this is a very very very unusual tort because the grab them in of the toward is you know even though it's existed in new york law for many many years is that a police officer is being charged with culpability for doing his or her job that's just not congregant with general new york law on point which says that if there's a duty and you exercise that duty you're complying with what you have to do and not complying with the duty is in fact negligence the reason i think for this historically and there were formal cases on this priest and then posts aaron and was that the new york courts have recognized that these kinds of police chase cases dealing with especially in residential areas or extraordinarily dangerous to innocent third parties who of course have no way of knowing that there's going to be a high speed chase i would ask you just as a matter of course to look specifically because we're in the second department at three second department cases which i cite we cited in the brief but which i'm going to refer to very very important cases forster again suffolk county p d at one thirty seven eighty three d eight five five  three d twelve eighty seven for our up against village of chester with fifty seven eighty three d seventy one and on what's unusual about this case i want the length of time and the amount of distance that was covered during this chase you have a nine mile chase covering a distance of ten minutes even in the serenade case which my adversary properly relies on you had a situation where the accident was almost immediate with respect to the chase in fact if you look on the third page of the decision your honour's will see that at the time that the accident occurred the officer was calling in the crime here you have a nine mile ten minute chase second there are a lot of things that may be disputed here's one thing that can't be disputed on this record  to the question is that the police officers judge katzman said there weren't and when you look at the c c or of the video you see there are some pedestrians the officers said that there were i think they used the term four times almost no vehicles on the road but they also said that they may have they may have been two vehicles i would draw the court's attention however to the brill affidavit mr brill as you know was the individual who seated in the call with mr bees not envious position to be in and here's what he said on four seventy six of the record and i'm quoting he was quote in fear for his life during the chase he saw twelve to twenty other vehicles while bees was quote disregarding stop signs and red signal lights and quote illegally passing quote other vehicles that were on the roadway the offices said that that conduct just didn't occur in this tree he did not mention pedestrians but in the video the c c or the video i gleaned from looking at the foster case the quinn tonic case and the and the other case was that it seems to me that the second department has focused on communication between the police officer who's doing the chase and i guess the base as being an important factor the reason being very simply that the officer who's in gauged in the chase is obviously focused on and being malefactor and they need a third party to actually make these decisions especially under the guidelines if you look at pure souls own testimony mr pierce will of course is the sergeant who was involved in this he was told i believe best case scenario for the defendant that there was one light that was run he wasn't told that four or five other red lights were on he never learned to eighty four of the record why the bit the basket by bet why the bassler originally stop the  vehicle even though he was responsible for managing the situation he didn't know although he knew some of the speeds he didn't know in some situations that the vehicles had exceeded sixty miles per hour he certainly never knew that there was a seventy seventy two mile per hour ascension or exceeding of the speed two or three blocks before was never informed in this is i think very important as well that the driver two times went the wrong way  traffic first when he slid over and then he made an illegal u turn and once when he actually went the wrong way on a turn around which gives it is an extremely dangerous thing to do i'm not suggesting to the court because i'm not insane that this is a to forty someone lay below case it's a hit in the rear case but it is a summary judgment case and when you read my adversaries brief it's beautifully written beautifully researched it seems as if it's talking about liability we don't say we win always saying is that we get to jury based on the facts disclosed on this record i see i only have about a minute and a half can i just get to the trial court's decision regarding the expert i think it's a little important  one significant fact the old sherlock holmes story about it actions speak louder than words the defendant never even saw what's diplo those are expert obviously because their defense in this case was always going to be a qualified immunity defense on the eleven and forty of the vehicle traffic law there were some imperfections in the report but if you look at all cases and i don't think they were disputed by my adversary as the purpose of the rule twenty six and  thirty seven is to prevent surprise there was no surprise here with respect to the lack of signature or the failure to set forth all the publications that's not really an issue here because they never even deposed the plant the expert and i would also point out to the court as we did in all brief that some of the alleged failures just aren't really there in other words you don't have to use the same language this court and the district court and district courts have held that the purpose of the report isn't to supplant testimony it isn't to substitute for an affidavit it's just designed to prevent surprise and if you look at how the report changed the analysis it had been in allowed you're smarter than i b b b to my last point was that might have to say we did say that at the end of the day it doesn't matter because even though the court made a preclusion order when you read the court's decision politically the court considered all the factors i think that's right so that's why focus my argument on the substantive rather than the procedural particularly the foundational some new york court of appeals decision of sarin in versus curragh which my adversary doesn't seem to think really applies i don't think i want to just read one sentence from that decision which is the definition or standard and what is reckless disregard which is of course how deputy basler is conduct driving is to be determin that is it has to be an act intentionally done of an unreasonable character in disregard of a known or obvious risk that was so great that it was highly probable harm would fall and done with conscious indifference to the outcome now that's standard why doesn't that i mean raise a question because it's it's undisputed isn't it that the car chase lasted about ten  minutes about nine miles why isn't the fact that a car chase was was protracted at least create a question of recklessness because when you look at the context to which the sara which show that basler is entitled to some weight judgment just as the officer in saarinen was first of all it happened in the village of messina which the court notes was a quote highly populated area one of the main points that the plight of seeks to make is that this happened in the city of poughkeepsie there's no distinction in the uk and many of the cases the defendant is the city of new york or the various large municipalities on the island or other upstate cities that's the first second in sarum and it happened quote relatively early at a relatively early evening hour ten pm when it can be expected that commercial establishments are open and in fact the court noted five right in the area were and that there would be significant traffic on the road that still didn't this entire the officer to summary judgment in our case it happened at twelve thirty in the morning substantially later when the officer can reasonably expect as he testified because he's a midnight shift that duty there would be very little traffic on the road so you have that second factor the third factor and my  adversary has called this a high speed chase many times here and in their papers the average speed was fifty four miles per hour mr  affiant says the average fifty miles per hour depends on the road if yes it does depend on the road and it's a thirty mile an hour road in the city a pick kipps it's a forty five mile an hour road in the town of poughkeepsie in the t grange where the most of the the chase or the pursue took place in sarum in your honor at seventy two miles an hour one point for about a half a mile long before the accident and he slowed to twenty five miles an hour after that to make his turn but my point here is how saarinen answers all your questions is the court in sarum in notes that the accident occurred when mr ker the bad guy was going sixty miles an hour in a thirty mile zone inside a village and the court noted that that is quote hardly breakneck speed the case is relied upon by the plaintiff the speeds are often ninety even  hundred miles an hour the court of appeals to said going sixty miles an hour in a thirty mile an hour zone is not it in of itself any reason to say there was recklessness  you distinguish your case from for example foster of the suffolk county police department and that's a case where the the court found a question a fact question on recklessness where the  disobeyed traffic control devices and narrow and narrowly avoided crashing into others well first of all it was what's called a quote high speed chase although speed isn't mentioned in the decision but based on fifty four miles an hour is not a high speed chase but it was through residential neighborhoods at eleven forty five in the morning ok that's a substantial difference between twelve thirty at night or twelve thirty in the morning and there's no indication in our case that there were any narrow near misses the brill affidavit simply says that because he passed other vehicles it doesn't say oncoming traffic had to dive  anything else that just says he passed other vehicles that does not create unnecessary accidents so the facts of forster are in fact very distinguishable in saron and i point out that the and it was just at the moment of the accident that the officer was first going to call it that didn't change the calculus whatsoever so that factor is out perhaps one of the most important saarinen mr ker was presumed drunk and in fact was drunk and the court of appeals knows that's the more reason to pursue to get this they call mr kerr a manifestly dangerous drunk driver and noted that unanimously they gave the police officer the statutory immunity and summary judgment was grant d i think your honor correctly pointed out that the expert simply says well this was dangerous because he went through some traffic lights this was dangerous because i thought he might be drunk this is dan i mean they still are and this is dangerous because he was speeding that's that's the sin acquire non of somebody flame the police if you don't flee the police in a lawful fashion if you don't stop the traffic lights if you're fourteen the police it's a crime to flee the police is independent crime you are breaking the law by doing and you're going to continue to break the law while you're doing it if it becomes a reason not to do it for the police officer because he's breaking the law as the district court said the statute becomes completely toothless there's nothing  ty could do except in a rural area or pursue somebody who's traveling the speed limit who never goes through a stop sign that makes no sense the court to civically said that we know the risk will be enhanced if an officer does his duty but that's a risk worth taking this is the language of the court that use the language the officer duty bound to enforce the law and try to catch the lawbreakers as any incidental increased risk is a risk that society new york public policy  as far as i also think we have to look at what basically did because we're looking at his operation his vehicle he did not cause this accident he slowed at every stop sign and red light as he's required to do by his training and by the statute that is definitional of reasonableness on his part he did not try to overtake him he did not try to sideswipe him or bump him off the road he followed him where using the convenient language high speed chase but he wasn't really chasing him he was following him hoping that he would come to his senses and stop if there's he sped up he sped up follow him if as he slowed down he slowed down he did not cause an accident with or of course with m farm i agree with what you said about new york power and sea protecting the officer doing his job but what about mr murphy who was minding his own business as far as i could tell what is new your policy say about the innocent driver on the road who gets catastrophic li injured by this well new york policy there is the same as any injured party they have a tort action against the tortfeasor against a truck driver against mr besan have very easy cases he pled guilty to multiple felonies and he would collect more obtain a judgment certainly collect through mr bessie's insurance if there was any or his own under insured coverage this is a issue in any tort case if there is no solvent defendant that doesn't change the policy of new york to allow this avenue of of justice for the innocent victim there are always innocent victims of accidents whether it's an automobile accident a label or accident slip and forensic and there is a well developed body of tort law in new york which permits that recovery for that innocent victim but that doesn't mean you transfer that liability to a police officer doing his job trying to catch a criminal and if mr m fine has no remedy against or the county doesn't mean he has no remedy against the tortfeasor for the essential argument the plaintiff is making basically  certainly nothing reckless as defined by the court of appeal in doing his job that day thank you that's why i started off my argument saying exactly what i said i thought my adversaries problem seems to be with the tort but the toward is there and he seems to have a problem with the legislature because legislature didn't give absolute immunity their absolute immunity hate is not helpful either the case law probably five years ago when i've done a bunch of these cases so i've probably lost more than any in the state was bad five years ago rockhead against which is referenced as my case that changed and if you look of second department cases where this is  forster and queen's honna they mirror these facts almost directly now my adversary said to you did this is in a high speed chase it is a high speed chase and let me read to you what he said in his brief because in his brief he gave the explanation that i want you to adopt page six quoting paragraph one prior to the accident b s passed through stop signs and red lights without coming to a full stop five in a wall or one every two miles but he never lost control of the goal or skidded as he slowed to no more than twenty five  mph and made all turns on the control at two of the lights right turns on red were permitted indicating there will long unobstructed sight lines to the left reducing the hazard of not coming to a full stop before proceeding to make the right turn my adversary told you and he's right that the officer followed him the reason that this was not a high speed chase in terms of average is because of that conduct but on did the cases this is a high speed chase and all i would say again is that this isn't a trial it's a summary judgment motion i ask you simply to read those trilogy of cases compare them to this case and take note of the fact that in serin and i did take note of it and i know about case and we did cite it the court of appeal said that the accident occurred and i'm quoting ok eighty four new york second a four nine eight after the vehicle left the parking lot when on to the street at a time quote when