Can a make a law enforcement agency liable for not investigating an accident scene per my request at the scene?

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Can a make a law enforcement agency liable for not investigating an accident scene per my request at the scene?

My son was driving out of our school parking lot when the sun blinded him. He slowed down but continued to drive in his own lane. He abruptly stopped underneath the bumper of a construction truck that was parked 2/3rds into his lane facing oncoming traffic. There was a worker in a bucket above the truck. I work in the school and I was outside and on the scene within minutes after my son called me. All 3 workers said that they were fine at the scene and refused medical services. They walked around and talked and laughed the entire time we were there. There were no traffic cones setup forewarning my son of a work site ahead. They had only one flagger and he was flagging, then not, then flagging, then not according to witnesses. When the sheriff arrived, the operator of the construction truck claimed that he tried flag down my son but he didn’t see him because of the sun. He also told the officer that my son ignored the caution signs and cones. There were no caution signs and cones as many witnesses attested to teachers and students leaving the school at the end of the day. I was told by a first responder to take pictures because there would have been cones underneath his car if they were set up like the worker claimed. Also, the first responder commented that there should have been a lane closure because the truck was so far out into the lane. I asked the sheriff at the scene to please look at the scene to see if the contractors had followed DOT work site setup regulations. He refused to do that and simply told me that my son was at fault, no if’s, and’s, or but’s. I disagreed with him and he wrote my son a ticket. Now, 6 months later, my son is being sued by the worker that was in the bucket. I want to fight back but I have no way to do that since the officer refused to investigate at the scene. All I have are teachers and students as witnesses. According to my insurance company, I can’t use them as witnesses because they know my son and would be biased. What are my options?

Asked on July 10, 2017 under General Practice, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Unfortunately, you cannot sue the agency: they have discretion in when and whether to investigate accidents, and so are not liable for a failure to do so; that is, they had the right to decide to not investigate (You also cannot sue because 1) there is no guaranty and no way to prove that their investigation would have been helpful to you; and 2) you do have other options for evidence--see below--so this is not critical and you cannot show that the failure to get a police report has damaged you in some way.)
The insurer is wrong: you can use teachers, students, your son himself, etc. as witnesses: there is no law saying that people who know a defendant cannot testify, and in most cases, at least some witnesses are friends, family, coworkers, teachers or instructors or managers, etc. of the defendant. (After all, it's typically people who know us who are near us, to witness what occured.) The other side can try to "impeach" or attack their credibility by saying they are biased, but if they are otherwise credible, there is no reason to think they cannot be effective witnesses.


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