Opinion
125368
01-29-2019
Patricia SPEARS and Raymond Spears, Claimant, v. STATE of New York, Defendant.
For Claimant: ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BY:ANDREW J. CONNELLY, ESQ. For Defendant: HON. LETITIA JAMES, New York State Attorney General, BY: MICHAEL T. FEELEY, ESQ., Assistant Attorney General
For Claimant: ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BY:ANDREW J. CONNELLY, ESQ.
For Defendant: HON. LETITIA JAMES, New York State Attorney General, BY: MICHAEL T. FEELEY, ESQ., Assistant Attorney General
Michael E. Hudson, J.
The following documents have been reviewed on Defendant's motion for summary judgment dismissing the claim:
1. Claim, verified December 1, 2014, filed December 10, 2014;
2. Answer, verified January 7, 2015, filed January 8, 2015;
3. Motion for Summary Judgment, dated August 22, 2018, filed August 24, 2018;
4. Affidavit in Support of Michael T. Feeley, sworn to August 22, 2018, with attached exhibits;
5. Affirmation of Andrew J. Connelly, dated December 21, 2018, filed December 24, 2018, with attached exhibits;
6. Reply Affidavit of Michael T. Feeley, sworn to December 28, 2018, filed January 2, 2019.
Claimant Patricia Spears seeks to recover for injuries she allegedly sustained in a motor vehicle collision in the morning of August 29, 2011, while driving on U.S. Route 219, in the Town of Boston, Erie County. Claimant alleges that as she proceeded in the right northbound lane of the two-lane divided highway, a construction vehicle owned by the New York State Department of Transportation (DOT) moved from the right shoulder into her lane, causing the collision. At the time of the accident the construction vehicle operator, Melanie Wikarski, was attempting to make a U-turn to the left shoulder of Route 219, facing southbound, to repair a guiderail along the northbound roadway's left shoulder. Ms. Wikarski testified that before she began moving her vehicle, a post pounder truck, into the driving lane, she stopped on the right shoulder and looked for oncoming traffic, but saw none (see Affidavit in Support of Michael T. Feeley, sworn to August 22, 2018 [Feeley affidavit], exhibit E [excerpts of deposition transcript of Melanie Wikarski], pp 32-33). Ms. Wikarski took her foot off the clutch and began to turn the truck into the right driving lane to start the U-turn when she collied with Claimant's vehicle (id. ). The DOT employee testified that she did not see Claimant's van before the collision, which reportedly occurred almost immediately after she released the clutch and began turning (id. at p 33). When asked if anything was obstructing her view that morning, Ms. Wikarski testified that the sun and the angle of her truck may have impacted her ability to see (id. at pp 32, 35). One of Ms. Wikarski's coworkers, Scott William Stoltenburg, was in the truck cab with her, and confirmed that she had stopped the truck and looked at her side mirror before she began to make the U-turn (see Affirmation of Andrew J. Connelly, dated December 21, 2018, exhibit D [excerpts of deposition transcript of Scott William Stoltenburg], pp 9-10).
Claimant Raymond Spears has asserted a derivative cause of action. References to "Claimant" in this decision and order refer to Ms. Spears.
Route 219 is a divided north-south limited-access State highway, with two travel lanes in each direction.
In seeking summary judgment the State argues that while its employee was stopped on the shoulder of the road, she saw four or five cars approaching, and waited for them to pass before she took her foot of the clutch and started to make the U-turn (Feeley affidavit, paras 14, 28, 46). However, the deposition testimony attached to Defendant's motion supports only that Ms. Wikarski looked for oncoming traffic, and saw none. There is no mention of her waiting for oncoming traffic to pass.
The Court has considered Mr. Stoltenburg's comments that he had observed Claimant's vehicle approach their work vehicle for 15 to 20 seconds before the incident. Still, there is no testimony that he alerted Ms. Wikarski to the approaching vehicle. Once again, the evidence supports that the truck operator simply failed to see Claimant's vehicle as she looked in her mirror before she began to move the truck.
After being granted late claim relief Claimant filed her claim on December 10, 2014. Defendant filed its answer on January 8, 2015.
Defendant now seeks summary judgment dismissing the claim, relying on Vehicle and Traffic Law § 1103 (b), which provides that, with exception not applicable herein, the provisions of that statute's title VII, Rules of the Road, "shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway." In addition, the statute imposes a recklessness standard as the threshold for liability for operators of vehicles actually engaged in work on a highway ( Riley v. County of Broome , 95 NY2d 455, 465-467 [2000] ). Defendant urges that section 1103 (b) applies in this instance, and that Ms. Wikarski's actions were not reckless, such that summary judgment is warranted.
Claimant opposes the State's motion, arguing that there is a question of fact as to whether Ms. Wikarski was reckless, which precludes granting the motion. Ms. Spears urges that Ms. Wikarski's actions in pulling a 26,000-pound truck into the one open lane of traffic, without the aid of a spotter, where the speed limit was 65 piles per hour, and the sun was obstructing her view, constitutes evidence of reckless disregard for the safety of others, and requires denial of Defendant's motion. For reasons that follow the Court finds that section 1103 (b) applies, and that as a matter of law Ms. Wikarski's conduct was not reckless. The Court will grant Defendant's motion, and dismiss the claim.
Claimant does not dispute the applicability of section 1103 (b) in this instance.
Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957] ), with issue-finding rather than issue-determination the focus of the Court in reviewing the submissions ( Sillman, 3 NY2d at 404 ). All evidence must be viewed in a light most favorable to the nonmoving party ( Rotuba Extruders , 46 NY2d at 231 ). To obtain such disfavored relief a movant must establish his cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment" in his favor ( CPLR 3212 [b] ), and must do so by tender of evidentiary proof in admissible form ( Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979] ). Conversely, once a movant has satisfied that burden the party opposing the motion would have the burden of showing facts sufficient to require a trial of any issue of fact, or demonstrate an acceptable excuse for the inability to tender such proof in admissible form ( CPLR 3212 [b] ; Friends of Animals , 46 NY2d at 1067-1068 ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ).
The Court finds that Ms. Wikarski was "actually engaged in work on a highway" at the time of the collision, such that the reckless disregard standard section 1103 (b) applies. The post pounder truck Ms. Wikarski was driving at the time of the collision was within the work zone, which had been demarcated by the placement of cones that narrowed the flow of traffic down to one lane, as well as signs along Route 219 advising northbound traffic that there was road work ahead (see Feeley affidavit, exhibit F [excerpts of deposition transcript of Chad Witkowski], p 14). In addition, Ms. Wikarski had activated the truck's rotating overhead beacon lights and four-way hazard flashers, and was in the process of positioning the truck so that repair work could begin on the guiderail (Feeley affidavit, exhibit E, pp 29, 31-32, 35-36).
The Court of Appeals has defined reckless disregard "as the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome" ( Szczerbiak v. Pilat , 90 NY2d 553, 557 [1997] ). A finding of reckless disregard requires more than a lack of due care or "a momentary judgment lapse" ( Saarinen v. Kerr , 84 NY2d 494, 502 [1994] ). The unrefuted testimony here is that before attempting the U-turn, Ms. Wikarski stopped, looked for oncoming traffic and saw none. The failure to see that which may be seen has been held to be a momentary lapse of judgment as opposed to reckless disregard for the safety of others (see Rockland Coaches, Inc. v. Town of Clarkstown , 49 AD3d 705 [2d Dept 2008] [momentary lapse of judgment where snowplow driver looked in side mirrors upon approach to intersection, but not immediately before turning to make U-turn, and turned into approaching bus]; Matsch v. Chemung County Dept. of Pub. Works , 128 AD3d 1259 [3d Dept 2015], lv denied, dismissed 26 NY3d 997 [2015] [failure to observe plaintiff despite checking mirror before moving to passing lane to make U-turn was not reckless]; McDonald v. State of New York, 176 Misc 2d 130, 141 [Ct Cl 1998] [failing to see traffic after checking mirrors and making abrupt turn to catch U-turn is not reckless] ). The Court finds that neither glare from the sun nor Ms. Wikarski's failure to ask for a spotter create a question of fact as to whether her actions were reckless. A spotter was not required and Ms. Wikarski looked for oncoming traffic, but did not see Claimant. Whether due to the sun's glare, "a blind spot or inattention" (McDonald, supra ), there is no indication that Ms. Wikarski acted "in conscious disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow" ( Primeau v. Town of Amherst , 17 AD3d 1003 [4th Dept 2005], affd 5 NY3d 844 [2005] ). While Ms. Wikarski's conduct in looking but not seeing what was there to be seen may have been negligent, as a matter of law it did not constitute recklessness.
Based upon the foregoing, it is hereby
ORDERED, that Defendant's motion is granted and the claim is dismissed.