Subrogation professionals handling automobile collision claims in New York face unique challenges when the tortfeasor is operating a municipal vehicle. While municipal immunity doctrines already complicate recovery, a lesser-known but highly influential statute—New York Vehicle and Traffic Law (VTL) § 1103(b)—can upend a seemingly straightforward subrogation file. This provision limits liability for vehicles engaged in ‘work on a highway,’ raising the threshold of proof from negligence to reckless disregard. While this might seem like a significant obstacle, a closer inspection reveals it can offer valuable strategic advantages if approached with the right tools and mindset. This article aims to arm subrogation professionals with the knowledge to employ it effectively in automobile subrogation cases in New York.
Statutory Language and Legal Framework
New York VTL § 1103(b) states:
Unless specifically made applicable, the provisions of this title shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway.[1]
This includes municipal garbage trucks, snowplows, pothole repair crews, and other public works vehicles. Instead of ordinary negligence, a higher standard applies—liability attaches only for ‘reckless disregard for the safety of others. This legal threshold is substantially more difficult to meet and often requires evidence that the driver knew of and disregarded a substantial risk of harm.
Key Judicial Interpretations
The seminal case interpreting this statute is Riley v. County of Broome, where the Court of Appeals found that a snowplow operator was immune from ordinary negligence claims.[2] The vehicle was actively engaged in plowing snow—a classic example of “highway work.” The Court held that only reckless conduct would pierce this statutory immunity. Since Riley, lower courts have routinely applied this principle to shield defendants in similar contexts.
In Zawacki v. County of Erie, a truck repairing potholes was found to be ‘actually engaged’ in highway work, thus qualifying for § 1103(b) protection.[3] Likewise, in Carter v. County of Erie, the court applied the statute to a sanitation truck making curbside pickups.[4]
When the Statute Applies
Determining whether a vehicle is ‘actually engaged in work on a highway’ is crucial. The courts require more than a mere assertion. Key factors include:
- Was the vehicle actively performing highway work (plowing, collecting trash, fixing potholes)?
- Was the vehicle staged and in operation with visible signals?
- Was the work related to roadway function or infrastructure maintenance?
If the answers to these questions are affirmative, the immunity under § 1103 likely applies. However, if the vehicle was simply traveling to a worksite or taking a break, the statute may not offer protection.
Subrogating Against a Municipal Vehicle
If your insured has been hit by a municipal vehicle falling under the § 1103 umbrella, the statute does not provide absolute immunity—it just sets a higher bar. Subrogation professionals should aim to prove “reckless disregard.” This is It tracks the same words used to raise the bar of proving negligence against authorized emergency vehicles found in §1104(e). In fact, the history of §1103(b) confirms that the Legislature intended to subject vehicles engaged in road work to the same standard of care as emergency vehicles. The Attorney General’s memorandum in support of the 1974 amendment states that the bill “extends the standard of care presently applicable to drivers of authorized emergency vehicles under § 1104 … to persons engaged in maintenance and hazardous operations.”[5] In addition, Senator Padavan’s supporting memorandum states that the amendment imposes a standard “similar to that imposed on operators of authorized emergency vehicles”[6] Many other memoranda in the bill jacket confirm this understanding.[7] Undeniably then, the 1974 amendment was intended to subject vehicles engaged in road work to the same recklessness standard applicable to emergency vehicles under §1104(e).[8]
Things to look for may include:
- Investigating whether the operator violated clear protocols.
- Identifying internal policy violations or training lapses.
- Showing willful indifference to pedestrian or vehicular traffic.
- Highlighting absence of warning lights or failure to follow standard safety measures.
Video footage, internal emails, and GPS logs can be goldmines in these cases. Expert testimony may be needed to explain why the vehicle’s operation was grossly improper under the circumstances.
Using VTL § 1103 As a Defense
Subrogating a case in which the insured vehicle qualifies as a vehicle performing “highway work” gives you an advantage, even when it appears your insured may have been contributorily negligent. However, subrogation professionals representing municipalities or contractors should not overlook the protective power of § 1103. When your insured is involved in a collision with such a vehicle, be prepared for the defendant to assert the statute as an affirmative defense early, and prepare your client for the additional burden they face. Expect a motion for summary judgment if the facts support a finding that the defendant’s vehicle was actively engaged in covered work.
Be proactive in gathering evidence that supports your case: dispatch records, job orders, or eyewitness statements that confirm work activity. Courts have routinely dismissed negligence suits where no evidence of recklessness was presented.
Example
Consider this scenario: A garbage truck owned by a town is collecting trash on a Wednesday morning. The driver, in the course of lifting a bin, reverses quickly and strikes your insured. The insured’s vehicle is severely damaged. The insured files a claim with their own carrier, and the subrogation unit investigates. Because the garbage truck was actively engaged in its municipal duty, VTL § 1103 applies. The subrogation professional must show more than poor judgment—they must demonstrate that the driver acted with reckless disregard. If the truck was reversing at high speed without a spotter or audible alarm, that may rise to the necessary level. If not, the claim will likely fail. Understand that the facts might justify a motion to dismiss under § 1103 by the defendant.
Practical Tips for Subrogation Professionals
- Always identify if a municipal or contractor vehicle (or any vehicle involved in “highway work” was involved.
• Research whether the vehicle was working or merely traveling.
• Ask for dispatch logs, GPS records, safety manuals, and driver training.
• Consider whether you need an expert to opine on recklessness.
• Assess early whether your burden of proof is viable—don’t waste resources on low-percentage cases.
Ultimately, knowledge of this statute gives subrogation professionals a tactical edge. New York’s VTL § 1103(b) does not shut the door on subrogation when the tortfeasor was doing “highway work”—it changes the lock. Understanding when and how this statute applies, and how to pivot your investigation and litigation strategy accordingly, will empower subrogation professionals to either sidestep immunity or assert it forcefully. As always, facts matter—and the earlier you gather them, the better your chances of achieving a favorable recovery or dismissal.
[1] N.Y. Veh. & Traf. Law § 1103(b).
[2] Riley v. County of Broome, 95 N.Y.2d 455 (2000).
[3] Zawacki v. County of Erie, 82 A.D.3d 1693 (4th Dep’t 2011).
[4] Carter v. County of Erie, 158 A.D.3d 1096 (4th Dep’t 2018).
[5] Lefkowitz Mem., Bill Jacket, L. 1974, ch. 223, at 2.
[6] Padavan Mem., op. cit., Bill Jacket, at 4.
[7] Department of Transportation Mem., Bill Jacket, L. 1974, ch. 223, at 5; Department of Motor Vehicles Mem., Bill Jacket, L. 1974, ch. 223, at 6; New York State Police Mem., Bill Jacket, L. 1974, ch. 223, at 8; Association of Towns Mem., Bill Jacket, L. 1974, ch. 223, at 10.
[8] McDonald v. State of New York, 673 N.Y.S.2d 512 (N.Y. Ct. Clm. 1998).
