Opinion
16-2999
07-03-2018
Shernaine ARCHER, as Administratix of the Estate of Ricky L. Archer a/k/a Ricky Lanier Archer, Deceased, Plaintiff, v. Anna BARNES, Defendant.
Paul J. Goldstein, Esq., Goldstein & Goldstein, LLP, One Civic Center Plaza, Ste. 541, Poughkeepsie, New York 12601, Counsel for Plaintiff James R. McCarl, Esq., James R. McCarl & Associates, 18 Bridge Street, Montgomery, New York 12549, Counsel for Defendant
Paul J. Goldstein, Esq., Goldstein & Goldstein, LLP, One Civic Center Plaza, Ste. 541, Poughkeepsie, New York 12601, Counsel for Plaintiff
James R. McCarl, Esq., James R. McCarl & Associates, 18 Bridge Street, Montgomery, New York 12549, Counsel for Defendant
Lisa M. Fisher, J.
This matter involves a fatal motor vehicle-pedestrian collision occurring on July 16, 2016 at approximately 9:44 PM on the Sprain Brook Parkway in the Town of Mount Pleasant, County of Westchester, and State of New York. Defendant was operating her vehicle traveling southbound in the center (middle) lane of three lanes when she struck and killed Plaintiff's decedent who was walking on the right side of the center lane. This stretch of highway was seven lanes across, four northbound and three southbound. The roadway was curving to the right towards an upcoming exit, and was dark and unlit in the area of the collision.
Plaintiff-decedent was wearing dark clothing at the time of the collision. Prior to the accident, police dispatch received a complaint of an individual walking in the lanes of travel of the highway. A responding officer found Plaintiff-decedent in his disabled vehicle and questioned him as to same, but Plaintiff-decedent allegedly told the responding officer he was not walking on the roadway and was waiting for a friend to arrive to assist him with his vehicle. The description of the individual walking in the lanes matched Plaintiff-decedent's clothing. Plaintiff-decedent declined assistance from the police officer and dismissed him.
Prior to and immediately before the collision Defendant testified "[i]t was a little foggy" which was "light." When asked if the fog impaired her vision she testified "I would say some" and that "[i]t made the visibility darker." She testified that she did not alter her rate of speed, and was traveling approximately 60 MPH in what she believes was a 55 MPH zone. This was confirmed in the police accident reports and reconstruction efforts. As she traveled southbound, there were no vehicles to her right in the right-most lane, and there were vehicles to her left in the left-most lane. She had her turn indicator on and was changing lanes from the center lane to the right lane to get off at the upcoming exit when the collision occurred. She testified she did not see Plaintiff-decedent until impact and stopped immediately thereafter.
Now, Defendant moves for summary judgment on the grounds that there is no actionable negligence against Defendant and that she was not the proximate cause of this tragic motor vehicle/pedestrian accident which was "inescapable." Plaintiff submits opposition, including an expert affidavit averring that Defendant was traveling 10 MPH over the speed limit, not 5 MPH over the speed limit. Plaintiff argues Defendant's actions were not reasonable and should be reviewed by a trier of fact. Defendant submits a reply arguing Plaintiff's allegations are speculative, among other claims. Both parties assert statutory violations against the other, and supply different interpretations of common law precedent.
It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc. , 302 AD2d 700 [3d Dept 2003] ). Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman , 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].)
Generally, "[d]rivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" ( Rivera v. Fritts , 136 AD3d 1249, 1251 [3d Dept 2016], quoting Singh v. Avis Rent a Car Sys., Inc. , 119 AD3d 768, 769 [2d Dept 2014] [other citations and quotation marks omitted] ). While "a driver who confronts a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration may be relieved of liability if the actions taken in response are reasonable and prudent in the emergency context" ( Collins v. Suraci , 110 AD3d 1214, 1215—16 [3d Dept 2013] ), "merely encountering an emergency does not completely absolve one from liability; it simply requires that one's conduct be measured against that of a reasonable person confronted with similar circumstances in a similar time frame within which to react" ( Schlanger v. Doe , 53 AD3d 827, 829 [3d Dept 2008] ). "The reasonableness of the driver's conduct, as well as whether he or she could have something to avoid the accident, typically present questions of fact for a jury to resolve" ( Collins , 110 AD3d at 1216, citing Copeland v. Bolton , 101 AD3d 1283, 1285—86 [3d Dept 2012] [denying summary judgment where defendant struck pedestrian crossing highway and did not notice pedestrian until impact] ).
The parties offer different interpretations of common law precedent, particularly Vertetis v. State (41 Misc 3d 1208(A) [Ct Cl 2010, Milano, J.] ) and DiCocco v. Center for Dev. Disabilities , 264 AD2d 803 [2d Dept 1999] ). Neither holding is binding on this Court. Notwithstanding same is persuasive. In Vertetis , the defendant never applied his brakes or took any evasive action in colliding with the pedestrian as he claimed did not see the pedestrian prior to impact, whereas in DiCocco the defendant braked and swerved to the right but was unable to avoid striking the pedestrian. The operative factor is seeing what there is to see and acting reasonably, which is further materialized in the holding of Kiernan v. Hendrick (116 AD2d 779, 781 [3d Dept 1986] )—which is binding .
In Kiernan , the Appellate Division, Third Department, a pedestrian was crossing a six-lane highway, three in each direction, with a bus in the middle lane obscuring the vision of a passenger vehicle in the left lane. The Third Department found a question of fact whether the bus driver acted reasonably when he saw the pedestrian crossing the highway from the right lane prior to impact but did not immediately act to avoid or swerve. However, the Third Department did not find the actions of the second driver unreasonable where she braked and swerved immediately before impact given that the bus obscured her vision until right before impact. The bus's motion for summary judgment was denied for not acting, whereas the motorist's motion for summary judgment was granted for acting. Other cases have gauged the unreasonableness of actions involving collisions at night to include evidence of "speeding, distracted driving or in violation of the Vehicle and Traffic Law" ( Smith v. Allen , 124 AD3d 1128, 1130 [3d Dept 2015] ).
Here, while Defendant meets her moving burden, Plaintiff has raised several questions of fact defeating summary judgment as to the reasonableness of Defendant's actions. Defendant admitted to not seeing Plaintiff-decedent until impact and did not brake or swerve to avoid. Even though the parties argue over the speed of the roadway, the Court finds the actual speed without effect as Defendant admitted she was over the speed limit already and there was a foggy condition which impaired her visibility but did not cause her to slow down. She claimed the fog made the visibility darker in an area she was familiar with and claimed was dark and unlit, yet proceeded on stead above the speed limit. These issues implicate whether her actions were reasonable under the above common law and asserted statutory violations. (See , i.e. , VTL § 1180 [a] ["No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing."] [emphasis added]; see also VTL § 1180 [e] ["The driver of every vehicle shall, consistent with the requirements of subdivision (a) of this section, drive at an appropriate reduced speed ... when any special hazards exists with respect to pedestrians, or other traffic by reason of weather or highway conditions"] [emphasis added] ). Therefore, given that the record herein contains admissions to driving above the speed limit and in weather which obscured vision in possible violation of the VTL, in a light most favorable to the non-movant, Plaintiff survives summary judgment.
The Court understands the extraneous allegations as to Plaintiff-decedent's conduct prior to the collision, including dismissing a responding police officer and rejecting his help, as well as the color of Plaintiff-decedent's clothing on an unlit road, the possible VTL violations of walking across the highway, and the possibility that he was using a cell phone while attempting to cross seven highway lanes, but finds these factors of comparative fault for a trier of fact to weigh and not factors dispositive on summary judgment. ( Rodriguez v. City of New York , 31 NY3d 312 [2018] ).
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendant's motion is DENIED , and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court denying Defendant Barnes' motion for summary judgment. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
Notice of motion, dated December 18, 2017; affirmation of James R. McCarl, Esq., with annexed exhibits, dated December 18, 2017;
Affirmation in opposition to motion for summary judgment, of Paul J. Goldstein, Esq., with annexed exhibits, dated March 9, 2018; affidavit of Gregory L. Witte, with annexed exhibit, dated March 8, 2018; and
Reply affirmation, of James R. McCarl, Esq., with annexed exhibits, dated March 21, 2018.