Opinion
No. 03 Civ. 8147 (GWG).
May 24, 2005
OPINION AND ORDER
In this suit, plaintiff Esther Stern seeks damages for injuries sustained in an automobile accident. Stern has moved for partial summary judgment on the issue of liability against the only defendants who remain in this case: Wah S. Chang and Panagiotis Mastorakos (collectively the "defendants"). For the following reasons, Stern's motion for partial summary judgment is denied.
I. BACKGROUND
A. Facts
This case arises out of an automobile accident that occurred on the upper level of the Queensboro Bridge on January 7, 2002.See Rule 56.1 Statement of Material Facts on Motion for Summary Judgment (annexed to Notice of Motion, filed August 11, 2004 (Docket #28)), ¶ 1. At the time of the accident, Stern was a passenger in a taxi cab owned by Mastorakos and operated by Chang (the "Chang taxi"). See Plaintiff's Rule 56.1 Statement, filed March 23, 2005 (Docket #61) ("Pl. 56.1"), ¶¶ 4, 6 (citations omitted). The Chang taxi collided with the rear of a taxi operated by Stoyan M. Popov (the "Popov taxi"). See id. ¶ 3 (citation omitted).
Popov testified that, on the night of the accident, the temperature was below freezing, there was "freezing rain" coming down, and that the road surface on the bridge was "icy." See Examination Before Trial of Stoyan M. Popov, dated March 18, 2004 (reproduced as Ex. A to Notice of Cross-Motion, filed April 6, 2005 (Docket #65) ("Notice of Motion")) ("Popov Dep."), at 23-24. Chang testified that the temperature on the night of the accident was "[b]elow zero" and that it was sleeting but not snowing. See Deposition of Wah S. Chang, dated December 7, 2004 (reproduced as Ex. A to Affidavit, filed March 23, 2005 (Docket #63)) ("Chang Dep. I"), at 16. Chang has been equivocal as to whether there was ice on the roadway.See id. (stating that "there was ice on the roadway"); Deposition of Wah S. Chang, dated December 7, 2004 (reproduced as Ex. B to Notice of Motion) ("Chang Dep. II"), at 55 (stating that "there was no ice" as he was driving prior to the accident and that "[w]hen [he] was on the bridge [he] didn't feel there was ice at that time"). Chang testified that the precipitation did not stop until after the accident. See Deposition of Wah S. Chang, dated December 7, 2004 (reproduced as Ex. A to Affidavit in Support of Motion for Partial Summary Judgment, filed April 15, 2005 (Docket #68) ("Reply Aff.")), at 17.
With respect to the speed of his vehicle, Chang testified that he was traveling at less than 20 miles per hour "because the weather was bad." Chang Dep. II at 32. The Popov taxi was in front of the Chang taxi the entire time the cars were on the bridge. See id. at 33-34. The Popov taxi came to a stop.See id. at 34. Chang first saw the Popov taxi stopped approximately 20 car lengths ahead of him. See Chang Dep. I at 90-91. Chang testified that when he "saw [that] the taillights" of the Popov taxi were illuminated, he started braking "immediately." Chang Dep. II at 37. The road "was slippery," however, and caused his vehicle to "slid[e]" forward. Id. at 34. Chang also testified that "[t]here was a slope on the roadway." Id. at 37. Because the car "continued to move forward," the Chang taxi collided with the rear of the Popov taxi. Id. at 91. At the time of the collision, the Popov taxi was "fully stopped." Id. After being hit from the rear by the Chang taxi, the Popov taxi collided with the rear of a black Crown Victoria. See Examination Before Trial of Stoyan M. Popov, dated March 18, 2004 (reproduced as Ex. C to Reply Aff.), at 31-32.
B. The Instant Motion
Stern has now moved for partial summary judgment against the defendants on the issue of liability. See Notice of Motion for Partial Summary Judgment, filed March 23, 2005 (Docket #60); Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment, filed March 23, 2005 (Docket #62) ("Pl. Mem."), at 1; Plaintiff's Reply Memorandum of Law in Support of Motion for Partial Summary Judgment, filed April 15, 2005 (Docket #69) ("Pl. Reply Mem."), at 5. Defendants have submitted papers in opposition to the motion. See Memorandum of Law in Opposition to Motion for Summary Judgment and in Support of Defendant[s'] Motion In Limine, filed April 6, 2005 (Docket #66).
II. APPLICABLE LEGAL PRINCIPLES
A. Summary Judgment and Governing Law
Fed.R.Civ.P. 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue is a "dispute over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Id. Thus, "`[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). On a motion for summary judgment, the Court "`must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.'" Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quoting Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993)).
Because the parties have relied on New York law in presenting their arguments to this Court, we may properly assume that New York law applies to this diversity action. See, e.g., Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 121 n. 5 (2d Cir. 1998).
B. Rear-End Collisions Under New York Law
Under New York law, "[a] driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions." Malone v. Morillo, 6 A.D.3d 324, 325 (1st Dep't 2004) (citations and internal quotation marks omitted) (alteration in original). New York courts have held that "any rear-end collision establishes a prima facie case of negligence on the part of the rear-ending driver." De La Cruz v. Ock Wee Leong, 16 A.D.3d 199, 200 (1st Dep't 2005) (citing Johnson v. Phillips, 261 A.D.2d 269, 271 (1st Dep't 1999)). "When such a rear-end collision occurs, the injured occupants of the front vehicle are entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form, for the collision." Johnson, 261 A.D.2d at 271 (citing cases). The duty of explanation is imposed upon the operator of the moving vehicle "because he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or some other reasonable cause." Leal v. Wolff, 224 A.D.2d 392, 393 (2d Dep't 1996) (citation omitted).
III. ANALYSIS
Defendants do not dispute that the Chang taxi in which Stern was a passenger collided with the rear end of the Popov taxi.See Pl. 56.1 ¶¶ 3-4 (citations omitted). Thus, the requisite prima facie case of negligence has been established. See, e.g., De La Cruz, 16 A.D.3d at 200. The remaining question is whether defendants' explanation for the collision, namely, that Chang encountered difficulty stopping on the icy roadway, provides a "non-negligent explanation" for the collision.Johnson, 261 A.D.2d at 271 (citing cases).
Case law strongly favors defendants' position. In Phelps v. Fiordilino, 67 A.D.2d 1032, 1032 (3d Dep't 1979), plaintiffs sought damages resulting from an automobile accident in which the defendant's car struck plaintiffs' car in the rear. There was evidence that there were "patches of ice and snow on the highway" and that the defendant "was traveling about one and one-half car lengths behind plaintiff when he saw the brake lights go on; that he applied his brakes, but his car skidded on a patch of ice and there was contact between the two vehicles." Id. In refusing to overturn a jury verdict in favor of the defendant, the Appellate Division stated that it was "unable to conclude that the jury could not reasonably find that the accident was due solely to the defendant's skidding on a patch of ice, which, in and of itself, is not negligence as the court properly charged." Id. (citation omitted); see also Monahan v. Devaul, 271 A.D.2d 895, 896 (3d Dep't 2000) ("[D]efendant's skidding on a patch of ice does not, in and of itself, require a finding of negligence.") (citing Phelps, 67 A.D.2d at 1032).
Here, as in Phelps, the witnesses testified that the road conditions were icy, and one witness noted in his testimony that someone on the scene observed that the roadway had not been treated with salt. See Popov Dep. at 24, 39-40; Chang Dep. I at 16. Chang saw the Popov taxi stopped 20 car lengths ahead of him prior to the accident. Chang Dep. I at 90-91. Chang testified that he started braking "immediately" upon seeing the Popov taxi's taillights illuminate, see Chang Dep. II at 37, but that the road "was slippery" and caused his vehicle to "slid[e]."See id. at 34. Chang testified that, because the car "continued to move forward," it collided with the rear of the Popov taxi. See id. at 91. Because the jury here could reasonably find "that the accident was due . . . to the defendant's skidding on a patch of ice," and because such skidding does not constitute negligence "in and of itself," a factual issue exists for the jury to decide. See Phelps, 67 A.D.2d at 1032; accord Carotenuto v. Harran Transp. Co., Inc., 226 A.D.2d 334, 334 (2d Dep't 1996) (where evidence adduced at trial established "that the defendant bus driver lost control of the bus on an unanticipated patch of snow or ice," "the jury's determination that the defendants were not negligent is supported by a fair interpretation of the evidence") (citation omitted); Tarantino v. Vanguard Leasing Co., Inc., 187 A.D.2d 422, 423 (2d Dep't 1992) (where evidence adduced at trial "supported a finding that [defendant] lost control of his car on an unanticipated patch of ice," there existed "a rational basis . . . for the jury's finding that he was not negligent") (citing cases); Noia v. DeRosa, 78 A.D.2d 789, 790 (1st Dep't 1980) (once plaintiff established a prima facie case, "it was sufficient to raise for the jury's consideration either that the vehicle skidded out of control due to the wet, slippery road, or that there was debris on the road which contributed to the loss of control"), aff'd, 54 N.Y.2d 631 (1981); see also Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 136 (1966) ("[T]here should be more legal flexibility on what is negligence as applied to the control of moving vehiclesand the question left open to factual judgments of the jury where the record shows a skid, or the explanation for a skid. . . .") (emphasis added); N.Y. Pattern Jury Instr. — Civil 2:84 ("The fact that defendant's motor vehicle skidded, if you find that to be the fact, should be taken into consideration in determining whether the defendant exercised reasonable care in its operation, but does not, standing alone, require that you find the defendant negligent.").
Although not raised in any of Stern's submissions to this Court, the Second Department has held that a defendant's assertion that the roadway was wet does not, as a matter of law, constitute a sufficient defense to rebut the presumption of negligence. See, e.g., Pincus v. Cohen, 198 A.D.2d 405, 406 (2d Dep't 1993) ("A defense which only alleges that the defendant saw the plaintiff's vehicle at a red light, that the brakes of the vehicle were applied, but the vehicle nevertheless slid or skidded into the plaintiff's vehicle due to the wet condition of the roadway, has been held insufficient to rebut the inference of negligence created by the unexplained rear-end collision.") (citing cases). Unlike in Pincus, however, defendants here have offered evidence that the existence of the ice on the road created an "unavoidable circumstance" that "contributed to the happening of the accident." Id.
Stern argues that Chang "knew or should have known" that the roadway was slippery or icy based on the weather conditions that evening, and that he should have "adjust[ed] his driving to the circumstances." See Pl. Mem. at 3; see also Pl. Reply Mem. at 2 (stating that Chang "had actual and/or constructive knowledge that there was ice on the road before the accident"). According to Stem, "[t]he only reasonable explanation for the accident was defendant Chang's inattention to the inclement weather and excessive rate of speed, given the prevailing circumstances and conditions." Pl. Reply Mem. at 3.
Chang, however, testified that his rate of speed did not exceed 20 miles per hour precisely because of the weather conditions,see Chang Dep. II at 32, and that there was a distance of approximately 20 car lengths between his taxi and the Popov taxi,see id. at 90. Stern's testimony to the contrary, see Deposition of Esther Stern, dated March 18, 2004 (reproduced as Ex. B to Reply Aff.), at 32, is of no relevance because, on a motion for summary judgment, this Court must view the testimony in the light most favorable to the non-moving party. Nor is it of any moment that the Popov taxi was able to come to a full stop without colliding with the rear of the black Crown Victoria.See Pl. Reply Mem. at 4-5. The only question of significance is whether defendants have offered a "non-negligent explanation" for the collision. See Johnson, 261 A.D.2d at 271 (citing cases). Defendants have offered such an explanation here.
Conclusion
For the foregoing reasons, Stern's motion for partial summary judgment (Docket #60) is denied.
Defendants have cross-moved for an order requiring that plaintiff "provide HIPAA authorizations for Drs. Madrid and Hausknecht." See Notice of Cross-Motion, filed April 6, 2005 (Docket #65). This motion is denied for failure to comply with ¶ 2(A) of this Court's Individual Practices.