Opinion
January 16, 1984
In a negligence action to recover damages for personal injuries sustained as a result of an automobile accident, defendants appeal from an order of the Supreme Court, Orange County (Isseks, J.), dated April 4, 1983, which granted plaintiff's motion for partial summary judgment on the issue of liability and directed an assessment of damages. Order reversed, without costs or disbursements, and motion denied. While negotiating a right-hand curve at a speed of 10 to 15 miles per hour in excess of the posted speed limit, an eastbound vehicle driven by defendant David Wells skidded across the westbound lane of traffic and collided with an embankment. Plaintiff, a passenger in the vehicle, was injured. Although these facts suffice to establish a prima facie case of negligence (see Pfaffenbach v White Plains Express Corp., 17 N.Y.2d 132; Bibbo v Taylor, 89 A.D.2d 573), the explanation proffered by David Wells that he swerved to avoid a small animal, raises issues of fact as to whether the movement of the animal into the path of his vehicle created an emergency (see Becker v Beir, 275 App. Div. 146; Massie v Barker, 224 Mass. 420), whether the emergency was contributed to by David Wells' own negligence, and whether he acted as would a reasonably prudent person under the same emergency circumstances by swerving to the left and applying his brakes (see Kinsfather v Grueneberg, 47 A.D.2d 789; Etheridge v Magrino, 75 A.D.2d 594). Additionally, David Wells' answer asserted that plaintiff's negligence contributed to the accident. Sufficient facts appear in the record to raise an issue as to whether David Wells' ability to drive was impaired by the consumption of alcoholic beverages a short period of time prior to the accident and whether plaintiff knew about David Wells' condition and acquiesced in riding with him as evidenced by plaintiff's offer to drive, made while in the parking lot of a drinking establishment, which offer was declined (cf. Eisenberg v Green, 33 A.D.2d 756; Burnell v La Fountain, 6 A.D.2d 586). Thus, there are issues of fact with respect to the extent of plaintiff's and defendants' liability, if any, for the accident. Mollen, P.J., Gibbons, Weinstein and Rubin, JJ., concur.