Opinion
2008-0073.
Decided January 8, 2010.
LITTMAN BABIARZ, By: Peter N. Littman, Esq., Attorneys for Plaintiffs. Ithaca, New York.
LAW OFFICES OF LAWRENCE M. RUBIN, By: Destin C. Santacrose, Esq., Attorneys for Defendant, Buffalo, New York.
The defendant in this action to recover for personal injuries arising out of a pedestrian/car accident has moved for summary judgment and dismissal of the plaintiffs' complaint. The plaintiffs have submitted papers in opposition to the defendant's motion.
The record reflects that the plaintiff, Christopher Hart, suffered serious personal injuries on November 17, 2007, at approximately 11:00 a.m., when he was struck by a vehicle operated by the defendant, Doll Baby Cooper, as he attempted to cross State Route 34 (East Shore Drive) in the Town of Lansing. Prior to the accident, the plaintiff had been working on his mailbox which is located on the east side of the highway and across the road from his home. The defendant was operating her vehicle in a northerly direction on East Shore Drive and there were other vehicles in front of her and behind her. The highway at the location of the accident was straight and had paved shoulders that were ten (10) feet wide. The roadway was clear of obstructions with good visibility and the weather was dry and sunny. The plaintiff's mailbox was at least ten feet east of the eastern edge of the northbound lane of travel on the highway.
As the defendant proceeded in a northerly direction on East Shore Drive, she saw the plaintiff working at his mailbox approximately 100 years ahead of her. At that time, the plaintiff had his back to the roadway. As the defendant proceeded, she noticed that the plaintiff was working with a tape dispenser when she was approximately 50 yards from him. When the car ahead of the defendant passed the plaintiff, he still had his back to the roadway. The defendant has testified at her deposition the she was traveling approximately 45 to 50 mph. The defendant further testified that the plaintiff then turned to his left and began to run across the highway in front of her without looking in her direction. The defendant has stated that she applied her brakes when the plaintiff was close to the middle of her lane of traffic, however she was unable to avoid hitting the plaintiff. Impact occurred at the left front portion of the defendant's vehicle near the center of the highway. The defendant did not attempt to slow her vehicle or sound her horn when she saw the plaintiff at the side of the road and did not try to turn her vehicle to the right or left when she saw the plaintiff begin to cross the highway.
The defendant has now moved for summary judgment and dismissal of the plaintiffs' complaint contending that there is no evidence that the defendant operated her vehicle in an imprudent or unreasonable manner. Defendant argues that she was traveling within the speed limit and had no indication that the plaintiff was likely to run into the road without first looking for oncoming traffic. The defendant has cited several cases in support of her motion, including: Ash v. McNamara, 288 AD2d 956; Bachman v. Cook, 281 AD2d 938; Sheppeard v. Murci, 306 AD2d 268; Brown v. City of New York, 237 AD2d 398 and Rucker v. Fifth Avenue Coach Lines, Inc., 15 NY2d 516.
In opposition to the defendant's motion, the plaintiff has offered his own affidavit, the affidavit of his counsel and an affidavit from William C. Fischer, an accident reconstruction expert. Portions of the plaintiff's deposition testimony are also included in the record. Plaintiff has alleged in his affidavit, as well as his deposition testimony, that after facing the mailbox and completing work on it, he turned to the right and came to a stop before attempting to cross the highway. After turning around, the plaintiff then looked to his right and saw cars coming that were approximately 300 yards away. He then looked to his left and saw a car that was approximately 100 yards away. The plaintiff has no memory of the accident after that point.
The plaintiffs' expert has alleged that he has reviewed the police accident report, photographs of the scene, measurements taken by the Tompkins County Sheriff's Department and statements given by witnesses of the accident. He also visited the scene and reviewed portions of the defendant's deposition testimony. Based upon his review of those materials, Mr. Fischer has concluded that the plaintiff moved at least twenty feet from the mailbox to the point where he was struck by the defendant's vehicle near the center of the highway. Mr. Fischer has also given his opinion that from the point that the defendant first saw the plaintiff next to the mailbox, she had time to slow her vehicle or sound her horn to warn of her approach.
Plaintiffs argue that the defendant had a clear view of the plaintiff and that the record contains evidence which raises questions of fact as to whether the defendant failed to take minimal cautionary steps to warn the plaintiff or avoid colliding with him.
Upon review and consideration of the papers submitted, the Court has determined that the defendant's motion for summary judgment and dismissal of the plaintiffs' complaint should be denied.
The Court finds that the plaintiffs' submissions are sufficient to raise questions of fact as to whether or not the defendant failed to do what a reasonably prudent person would have done under the existing circumstances and whether the defendant conformed to the standard of conduct required by law. (see, Keirnan v. Hendrick, 116 AD2d 779, 781). (see also, Boston v. Dunham, 274 AD2d 708; Spicola v. Piracci , 2 AD3d 1368 ).
Accordingly, for the reasons set forth above, it is
ORDERED, that the defendant's motion for summary judgment and dismissal of the plaintiffs' complaint is hereby denied.
This shall constitute the Decision and Order of the Court. No costs are awarded on the motion.