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Green v. Covington11/7/2002
and operated or leased by a utility, whether public or private, used in the construction, maintenance and repair of its facilities" (Vehicle and Traffic Law § 117-a). A "hazardous operation" is defined as " he operation, or parking, of a vehicle on or immediately adjacent to a public highway while such vehicle is actually engaged in an operation which would restrict, impede or interfere with the normal flow of traffic" (Vehicle and Traffic Law § 117-b). Clearly, defendant's vehicle was a "hazard vehicle" which was engaged in a "hazardous operation" at the time of the accident. Accordingly, under the circumstances herein, we find that Supreme Court correctly applied the "reckless disregard" standard in determining defendants' summary judgment motion.
Plaintiffs also contend that, even if the "reckless disregard" standard is applicable, a question of fact exists with respect to whether defendant's conduct was reckless. The "reckless disregard" standard requires a showing that "'the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome" (Saarinen v Kerr, 84 NY2d 494, 501, quoting Prosser and Keaton, Torts § 34, at 213 [5th ed]; see Kearns v Piatt, 277 AD2d 677, 679). Here, defendant's utility truck was parked as far off the road as possible with some 17 feet of paved roadway adjacent to it for passing. The truck's lights were flashing and three cones were placed behind it to a distance of 18 feet. The evidence also established that the sun was shining brightly and the truck could be seen from a distance of nearly 600 feet by southbound motorists. In our view, neither defendant's failure to put out a "men working sign" nor position cones beginning 500 feet from the truck -- alleged violations of internal company rules -- rise to the required level of reckless disregard. Accordingly, we find that Supreme Court properly awarded summary judgment to defendants dismissing the complaint.
Peters, Spain, Carpinello and Rose, JJ., concur.
ORDERED that the order is affirmed, with costs.
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