Opinion
11-17-2017
Valerie KOVACH, as Administratrix of the Estate of Wesley Alan Kovach, Deceased, Plaintiff–Respondent, v. Kathleen McCOLLUM, as Co–Administratrix of the Estate of Caldon S. McCollum, Deceased, and Dale S. McCollum, as Co–Administrator of the Estate of Caldon S. McCollum, Deceased, Defendants–Appellants.
Fitzgerald & Roller, P.C., Buffalo (Derek J. Roller of Counsel), for Defendants–Appellants. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.
Fitzgerald & Roller, P.C., Buffalo (Derek J. Roller of Counsel), for Defendants–Appellants.
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM:Plaintiff commenced this action seeking damages for the death of her son, who was a passenger in a pickup truck operated by defendants' son that went off the road and struck a tree, causing the death of both occupants. Plaintiff moved for, inter alia, summary judgment dismissing the affirmative defense of culpable conduct on the part of her son. Defendants cross-moved for summary judgment dismissing the complaint on the ground that the accident occurred during an "illegal street race" in which plaintiff's son participated, that his death was the direct result of his own serious violation of the law, and that recovery on his behalf was therefore precluded as a matter of public policy under the rule of Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39 (1984) and Manning v. Brown, 91 N.Y.2d 116, 667 N.Y.S.2d 336, 689 N.E.2d 1382 (1997). In the alternative, defendants sought summary judgment on the issue whether plaintiff's son had been comparatively negligent. Supreme Court granted plaintiff's motion and denied defendants' cross motion, and defendants appeal.
We agree with defendants that the Barker/Manning rule may apply to a high-speed street race between motor vehicles, i.e., "a drag race as that term is commonly understood" ( People v. Senisi, 196 A.D.2d 376, 381, 610 N.Y.S.2d 542 [2d Dept.1994] ; see Hathaway v. Eastman, 122 A.D.3d 964, 965–967, 996 N.Y.S.2d 382 [3d Dept.2014], lv. denied 25 N.Y.3d 904, 2015 WL 2027631 [2015] ; La Page v. Smith, 166 A.D.2d 831, 832–833, 563 N.Y.S.2d 174 [3d Dept.1990], lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 [1991] ; see generally Finn v. Morgan, 46 A.D.2d 229, 231–232, 362 N.Y.S.2d 292 [4th Dept.1974] ), even if the participants did not plan a particular race course and the incident thus did not qualify as a "speed contest" within the meaning of Vehicle and Traffic Law § 1182(a)(1) (see People v. Grund, 14 N.Y.2d 32, 34, 247 N.Y.S.2d 877, 197 N.E.2d 293 [1964] ). The record here, however, supports conflicting inferences with respect to whether defendants' son was engaged in a race with other pickup truck drivers (see O'Connor v. Kuzmicki, 14 A.D.3d 498, 498, 788 N.Y.S.2d 414 [2d Dept.2005] ; Merlini v. Kaperonis, 179 A.D.2d 556, 556–557, 578 N.Y.S.2d 577 [1st Dept.1992] ) and, if so, whether plaintiff's son was a "willing participant" in the race ( Manning, 91 N.Y.2d at 120, 667 N.Y.S.2d 336, 689 N.E.2d 1382 ; see Prough v. Olmstead, 210 A.D.2d 603, 603–604, 619 N.Y.S.2d 404 [3d Dept.1994] ; cf. Hathaway, 122 A.D.3d at 966, 996 N.Y.S.2d 382 ). Thus, the applicability of the Barker/Manning rule is an issue of fact (see generally Pfeffer v. Pernick, 268 A.D.2d 262, 263, 700 N.Y.S.2d 816 [1st Dept.2000] ). In addition, there are issues of fact with respect to the alleged comparative negligence of plaintiff's son in choosing to ride with defendants' son, in view of evidence that defendants' son was under the influence of alcohol and had said that he intended to "chase ... down" the other trucks (see Strychalski v. Dailey, 65 A.D.3d 546, 547, 883 N.Y.S.2d 586 [2d Dept.2009] ; Posner v. Hendler, 302 A.D.2d 509, 509, 755 N.Y.S.2d 255 [2d Dept.2003] ; cf. Stickney v. Alleca, 52 A.D.3d 1214, 1215–1216, 860 N.Y.S.2d 352 [4th Dept.2008] ). We therefore conclude that the court properly denied defendants' cross motion but erred in granting that part of plaintiff's motion with respect to the culpable conduct defense, and we modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of plaintiff's motion with respect to the affirmative defense of culpable conduct on the part of plaintiff's son and reinstating that defense, and as modified the order is affirmed without costs.