Opinion
45-1-2007-1561.
Decided August 14, 2008.
BRIAN LEE LAW FIRM, PLLC, New York, Attorneys for Plaintiff.
THE LAW OFFICES OF EPSTEIN DONNELLY, Latham, New York, Attorneys for Defendants.
On March 5, 2004, defendant Samuel M. Livsey, driving his mother's car on Northern Pines Road in the Town of Wilton, Saratoga County, rear-ended a stopped vehicle operated by Amy Barthelmas, which in turn rear-ended plaintiff's vehicle stopped in anticipation of a left turn into plaintiff's driveway.
Plaintiff commenced this action to recover damages for the injuries she allegedly sustained in the accident. Following depositions, she moves for summary judgment on the issue of liability. In support of her motion, plaintiff relies on the pleadings, defendant's Samuel Livsey's deposition testimony, a copy of the police accident report, and her own affidavit. In brief, plaintiff contends that defendant's testimony to the effect that after seeing the Barthelmas' vehicle's operator "hit her brakes", he "hit [his]" and "then [he] slid into the back of her"; that he first saw the Barthelmas vehicle when he was "about ten feet" away; and that at that time, his vehicle was traveling "between 30 and 35 [miles per hour]" establishes his sole liability as a matter of law.
The police report incorrectly states that plaintiff was waiting to make a right turn into her driveway.
In opposition, defendant proffers what he contends is a non-negligent explanation for the collision — that Northern Pines Road was covered with slush and that when he saw the Barthelmas' vehicle's brake lights go on, he "took [his] foot off the gas and put both feet on the [brake] pedal and pushed it down as hard as [he] could" and simultaneously "tried steering off the road", but that his car "slid . . . straight" into the rear of the stopped vehicle.
"In a chain reaction collision, responsibility presumptively rests with the rearmost driver. . . ." Mustafaj v Driscoll , 5 AD3d 138 (1st Dept 2004); DeLaCruz v Leong, 16 AD3d 199 (1st Dept 2005). To rebut this prima facie showing of negligence, the defendant operator has a "duty of explanation", that is, he must offer evidence of a non-negligent cause for the collision, Forget v Smith , 39 AD3d 1127 (3rd Dept 2007) [Plaintiff's vehicle came to abrupt stop to avoid deer entering the road and defendant, who was not tailgating plaintiff, could not react in time to avoid impact]; Briceno v Milbry , 16 AD3d 448 (2nd Dept 2005) [Vehicle cut in front of defendant bus and abruptly stopped and bus, after applying brakes, skidded on black ice into the rear of the stopped vehicle]; Gaeta v Carter , 6 AD3d 576 (2nd Dept 2004) [Vehicle stopped or slowed down suddenly without proper signaling]; Simpson v Eastman, 300 AD2d 647 (2nd Dept 2002) [Defendant's vehicle traveling at between five and seven miles per hour was unable to stop on snow and ice covered road].
Yet, an operator, like defendant, must maintain enough distance between his car and those ahead "to avoid collisions with stopped vehicles, taking into account the weather and road conditions". Mitchell v Gonzalez, 269 AD2d 250, 251 (1st Dept 2000); accord Francisco v Schoepfer , 30 AD3d 275 (1st Dept 2006); DeLaCruz v Leong, supra; Burke v Krueger Truck Renting Co., 272 AD2d 494 (2nd Dept 2000). When a safe distance is not maintained, the condition of the highway, be it wet, icy, or snow or slush covered, does not constitute a non-negligent excuse for a rear-end collision. National Interstate v A.J. Murphy Co. , 9 AD3d 714 , 715-716 (3rd Dept 2004); Rutledge v Petrocelli Electrical Co., 307 AD2d 871 (1st Dept 2003); Mitchell v Gonzalez, supra; Crociata v Vasquez, 168 AD2d 410 (2nd Dept 1990). Moreover, when a driver fails to maintain a safe distance from other vehicles, particularly when adverse road conditions are obvious, the emergency doctrine does not apply. Caristo v Sanzone, 96 NY2d 172 (2001); Burke v Krueger Truck Renting Co., supra.
Even when viewing the facts here in the light most favorable to the defendants, as the court must, Pugh v DeSantis , 37 AD3d 1026 , 1030 (3rd Dept 2007); Secore v Allen , 27 AD3d 825 , 828-829 (3rd Dept 2006), defendant has not demonstrated a non-negligent explanation for this rear-end collision sufficient to establish an issue of fact regarding negligence, either his or plaintiff's. Again, defendant testified that just before impact he was driving at a speed of between 30 to 35 miles per hour and did not observe that the Barthelmas vehicle until he was 10 feet away from it. This testimony establishes either his lack of attention or his following too closely on a slush covered, slippery highway to stop his vehicle in time to avoid the collision. Nor does defendant offer any evidence which supports his first and second affirmative defenses alleging that plaintiff operated her vehicle in a careless and negligent manner and thus caused, in whole or in part, the accident.
In conclusion, both negligence and proximate cause on the part of defendant are established as a matter of law.
Plaintiff's motion is granted, without costs.
This memorandum shall constitute both the decision and the order of the court. All papers, including this decision and order, are being returned to plaintiff's counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
So Ordered.