Opinion
127819/02.
Decided July 29, 2005.
Upon the foregoing papers, defendant New York Transit Authority's (Transit) request for an order, pursuant to CPLR 3211 and 3212, granting summary judgment dismissing the complaint, is denied.
Robin Luna de Havilland (plaintiff) commenced the instant action for personal injuries sustained while she was a passenger aboard a Transit bus that had made a sudden stop. Plaintiff testified at both a statutory hearing and an examination before trial that she was standing at the time of the accident because the bus was crowded and that the abrupt stop caused her to fall to the ground, severely injuring her right ankle. Plaintiff also averred that she did not know how fast the bus operator was driving at the time of the accident but that the bus "had momentum going."
The bus operator testified at an examination before trial that the subject incident occurred in the bus lane on or around 68th Street and Fifth Avenue, and that although the bus lane was "free" and "not congested," there was heavy traffic in the other three or four lanes to the left of the bus. The operator testified that he had been driving less than 10 miles per hour immediately before the accident and that he applied "light to medium" pressure to the brakes when a cab cut in front of the bus.
Based upon the foregoing, Transit now seeks summary judgment dismissal of the complaint pursuant to the application of the emergency doctrine. In essence, Transit asserts that as a matter of law, the bus operator did not contribute to the occurrence of the accident or was in any way able to do anything to prevent it. Thus, according to Transit, because the bus operator was presented with a sudden and unexpected situation, which left no time for deliberation, summary judgment should be granted here. The court disagrees.
Application of the common law emergency doctrine is used to negate a defendant's negligence where the defendant is confronted with a sudden and unexpected circumstance which compels him or her to make a quick decision without having an opportunity to contemplate an alternative course of action, so long as the emergency situation was not brought about or contributed to by the defendant's own negligence ( see Caristo v. Sanzone, 96 NY2d 172, 174; Rivera v. New York City Tr. Auth., 77 NY2d 322, 327). "'A party requesting the emergency instruction is entitled to have the jury so charged if some evidence of a qualifying emergency is presented'( Rivera v. New York City Trans. Auth., 77 NY2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432). However, where the manner in which events unfolded leaves open the possibility that a defendant should have seen the other vehicle in enough time to avoid the accident, summary judgment should be denied ( see e.g. Rabassa v. Caldas, 306 AD2d 137 [1st Dept. 2003])" ( Brooks v. New York City Tr. Auth., ___ AD3d ___, 2005 NY Slip Op. 04670 [1st Dept, June 9, 2005]).
In the instant matter, the bus operator avoided a collision with an unidentified taxi that allegedly cut in front of the bus. The operator affirmed, however, that "the bus lane was free" and not "congested," and that "often" "a car steps in" and "drives in the bus lane" when drivers "see it empty to get ahead of the cars." Accordingly, based on these facts, it cannot be said that, as a matter of law, the operator of the bus was not negligent in failing to foresee that another driver may attempt to switch into his lane. Indeed, as a general proposition, weather and roadway conditions have been regarded as foreseeable and capable of being anticipated, and have, as a result, been held to be removed from the context of the emergency situation ( see Caristo v. Sanzone, 96 NY2d 172, 175 [holding that, when a defendant has an admitted knowledge of worsening weather conditions, where at the time of the accident the temperature was well below freezing and it had been snowing, raining and hailing for at least two hours, the presence of ice and slippery road conditions at the location of the accident cannot be deemed a sudden, unforeseen, and unexpected emergency]). Here, the driver admitted that cars often changed lanes to drive in the bus lane and that it was not an unexpected occurrence for them to do so. Additionally, a question of fact also exists as to the rate of speed the operator was driving at the time of the accident, particularly in light of the severity of plaintiff's injuries coupled with injuries sustained by the bus operator which were incurred when the operator brought the bus to an immediate stop. Accordingly, defendants motion for summary judgment is denied.