Donovan v West Indian Am. Day Carnival Assn., Inc.
Annotate this CaseDecided on January 5, 2005
Supreme Court, Kings County
Mona Donovan, as Administratrix of the Estate of Shernon Kevon Donovan, deceased, and Mona Donovan, Individually, Plaintiffs,
against
West Indian American Day Carnival Association, Inc., et al., Defendants.
33049/00
Mark I. Partnow, J.
Upon the foregoing papers, defendant The City of New York (the City) moves for an order, pursuant to CPLR 3211 and 3212, granting summary judgment dismissing the complaint and any and all cross claims as against it. Defendant JRC Transportation, Inc. (JRC) moves for summary judgment dismissing the complaint and all cross claims against it. Defendants David "Krouss" Edwards, Brian "Sweet Guitar" Fontinelle, Clarence "Oungku" Edwards, Rone "Roxx" Watkins, "Oungku The Teflon Don" and Onika Bostic, collectively conducting business under the name and style of the "Burning Flames" (collectively, the Burning Flames), move for summary judgment dismissing the complaint and any and all cross and third-party claims against them. Defendant Hugh L. Bennett moves [*2]for summary judgment dismissing the complaint and all cross claims against him. Defendant West Indian American Day Carnival Association, Inc. (WIADCA) cross-moves for summary judgment dismissing the complaint and all cross claims against it or, in the alternative, with respect to its cross claims against the Burning Flames defendants.
Factual and Procedural Background [FN1]
This is a negligence/wrongful death action brought on behalf of Shernon Kevon Donovan (decedent) by Mona Donovan, decedent's mother and the administratrix of his estate. Decedent died at age 17 on September 6, 1999, from injuries he received after he was struck by the wheels of a tractor trailer.
The incident occurred during the West Indian American Day festival and parade, an annual heritage event sponsored for more than two decades by WIADCA and for which a permit from the City was required and lawfully issued.[FN2] The parade is always held on Labor Day in Kings County. It proceeds a substantial distance along Eastern Parkway (the Parkway) and includes motorized floats and walking participants; specifically, steel drum and other musical bands riding on flatbed trailers and costumed masquerade bands walking the parade route.
The Parkway is a divided public highway that, for the duration of the parade (10 a.m. to 6 p.m.), is closed to normal traffic. The parade commences at a staging area, proceeds west along the Parkway and ends at Grand Army Plaza, near the Brooklyn Museum. Prior to the 1999 parade, one or more meetings were conducted and/or attended by the New York City Police Department (NYPD), WIADCA, participants and volunteers where certain parade issues were discussed, including the proper insurance and safe equipping of participating tractors and flatbed trailers. As relevant herein, the flatbed tractor trailer floats were required to be equipped with wooden wheel guards on their rear wheels.[FN3]
On the date in question, the NYPD detailed numerous equipment and officers to the parade, including 3,000 uniformed officers and a substantial number of sergeants, captains and other supervising officers. Wooden and steel police barriers were erected on or near the sidewalks along the length of the parade route to separate the enormous crowd of spectators from the parade participants. At least two uniformed police officers were assigned to each [*3]float, including one assigned to ride in the cab of each flatbed tractor trailer with its driver.[FN4] The WIADCA alleges that certain general volunteers and/or volunteers specifically designated by each band served as parade spotters or marshals and, in addition to the uniformed police presence, marched with the bands along the parade route for the purpose of ensuring or attempting to ensure that the parade continued to flow smoothly along the Parkway.
Decedent's accident involved a tractor that was owned and being operated by Mr. Bennett and pulling, along the parade route, a flatbed trailer owned by JRC.[FN5] The record indicates that the 40-50 foot flatbed trailer, prior to entering the parade route, had been equipped with wooden side railings and a plywood roof, and the rear wheels covered with wooden wheel guards.
The Burning Flames, a five member musical band, rode and performed on the flatbed driven by Mr. Bennett. According to their separate deposition testimonies, at the time of the accident, David Edwards, the bass player, was sitting on a set of speakers on top of the plywood roof, facing the rear of the trailer; Mr. Watkins, the drummer, sat at the rear of the trailer, facing forward; Mr. Fontenell, the guitar player and back-up singer, stood facing the right or passenger side of the tractor trailer; Clarence Edwards, the band leader and one of its lead singers, and Ms. Bostic, the other lead singer, stood facing the left or driver's side of the tractor trailer.
On the date in question, NYPD Officer Fernando Medina was assigned to escort detail. He accompanied Mr. Bennett in the tractor cab and, at times, on foot along the parade route. Another uniformed NYPD Officer, Detective Santos Albino, allegedly accompanied and performed escort duty for the float proceeding immediately behind the Burning Flames float along the parade route.
The record reveals that, in addition to the police presence, several volunteers accompanied the Burning Flames' float, acting as parade marshals or spotters and attempting to keep the crowd of spectators from obstructing the tractor trailer's progress, from getting too close to the tractor trailer and its wheels and/or from attempting to climb up onto the flatbed. Officer Medina testified that he spent much of his time walking along the tractor's right or passenger side. He further testified that there were parade marshals walking the route between, in front of, and to the rear of each float, including the Burning Flames float, and that a marshal walking in front of the Burning Flames float directed the tractor when to [*4]move forward.
Mr. Bennett, the driver of the Burning Flames float, testified that spotters walked with the float during the parade and that those spotters walking up front used hand signals to direct the tractor when to stop and go. Another float traveled between 20 feet and ½ block in front of Mr. Bennett. Spectators walked between the floats, although spotters tried to discourage them from doing so. Other spectators attempted to jump, or successfully jumped, onto the side of the flatbed trailer. According to Mr. Bennett, Officer Medina exited the cab several times and directed spectators to get off of and to step away from the tractor trailer. Three spotters were in front of the Burning Flames float at the time of the incident.
Non-party Gordon Ottley, a friend and sometimes business associate of the Burning Flames, testified that, in addition to two uniformed officers, several volunteers, parade spotters and friends of the Burning Flames, traveled with the Burning Flames float and attempted to keep spectators away from the flatbed trailer. If spectators came too close to the trailer, spotters asked them to stay clear and not to get too close. Defendant Edwin Rosado, a friend of the band, allegedly accompanied the float and acted as a spotter on the date in question.[FN6]
David Edwards, seated facing the trailer's rear, testified that he observed several people on the trailer holding a rope around the flatbed, forming a tight line with their elbows and the rope, telling spectators to "keep back," and preventing the crowd from getting too close to or entering the trailer. He further testified that several people on the ground, including three or four in back of the trailer, walked with the float and attempted to stop spectators from getting too close.
Clarence Edwards testified that several volunteers, including Mr. Rosado, traveled with the Burning Flames on the ground and on the trailer and tried to keep spectators from walking too close to or climbing up onto the float. He further testified that the band stopped playing at times so that he could address the parade crowd. He then used his microphone to tell spectators to move away from the wheels.
Ms. Bostic testified that band members with microphones told spectators not to climb up on the trailer and to be careful and that she personally told spectators to stay away from the trailer and steer clear of its wheels. Mr. Fontenelle testified that there was a visible police presence and that Clarence Edwards twice told spectators to stay away from the truck, to be careful and to keep their distance. He further testified that he saw at least one person in front of the float helping to guide the tractor trailer and saw other volunteers motioning people away from the truck.
Non-party Ryan Girard, decedent's step-brother, met decedent at a pre-arranged spot along the parade route and was with decedent at the time of the incident. According to Mr. Girard, band members and other people riding with the float told spectators "all the time" [*5]that they were too close to the tractor trailer, including just prior to the accident in question.
As is evident from the foregoing, despite the large police presence and numerous barricades, many parade spectators and revelers, including decedent and Mr. Girard, breached the barricades and entered the parade route. Some merely walked or danced alongside the different floats and with the costumed parade participants, while others tried to jump or climb up onto the different floats. Plaintiff alleges that, during the parade, the Burning Flames threw T-shirts from the flatbed and, at or near the time of the incident, performed a song whose vocals encouraged listeners to run, jump, wave, dance forward, dance back, move to the left and/or move to the right.
The accident occurred at 7:56 p.m. on the Parkway, between Brooklyn and Kingston Avenues and east of Bedford Avenue.[FN7] The initial and ultimately fatal contact between decedent and the trailer's wheels was not personally seen by any party to this action or any other deposition witnesses, including Mr. Girard.
Mr. Girard testified that he and decedent breached the police barricades, caught up with the Burning Flames float, and danced near the driver's side of the flatbed trailer for approximately fifteen minutes or two to three blocks prior to the accident. Decedent was just ahead of Mr. Girard, walking and/or dancing alone near the trailer's middle wheels and behind the tractor cab. Although the band may have been playing a song that encouraged listeners to move up, down, left and right, Mr. Girard danced "generally." He did not know whether decedent danced as the song commanded. He never saw decedent attempt to lift himself up onto the float.
Mr. Girard further testified that, just prior to the incident, he and decedent were the same distance (within an arm's length) away from the trailer and were both holding onto the plywood railing. At some point, Mr. Girard's sneaker lace became momentarily trapped under a trailer wheel. After freeing his lace, Mr. Girard touched decedent's shoulder and told decedent that he was walking too close to the trailer and should move back, away from the trailer. At that point, the trailer was stopped.
According to Mr. Girard, decedent let go of the trailer and moved away. Mr. Girard then turned away from decedent and began to dance with another reveler. He does not know whether, after he turned away, decedent resumed holding onto the trailer. He next saw decedent approximately one minute later, when decedent called out to him. At that point, decedent's foot had already been caught under the trailer's wheels and the trailer was slowly moving up decedent's leg and person. Decedent was transported to hospital and subsequently died from his injuries. [*6]
The testimony differs as to whether the tractor trailer was moving at the time of the incident and whether the band was playing. In any event, the record is clear that the tractor trailer proceeded along the parade route extremely slowly and never exceeded 5 to 8 m.p.h.[FN8]
Captain Vega testified that no vehicle operated above the speed limit or departed from the designated parade route. Officer Medina testified that he did not notice any problems with the flatbed tractor trailer as it was driven along the parade route. Clarence Edwards testified that he observed no problems with the flatbed tractor trailer; it was not driven erratically and proceeded on a straight line along the parade route; and was going no more than 5 m.p.h. at the time of the incident.
Following the accident, a police report was prepared by Detective Albino, the tractor trailer was impounded and vouchered, and Mr. Bennett was arrested and issued a summons for driving with a suspended license.[FN9] Mr. Bennett was administered an alco-sensor test which returned negative (.00%) for blood alcohol content (BAC). A toxicology report was negative for controlled substances. Detective Albino's report does not include any witness statements or assert any opinions or conclusions as to fault.
Because the accident involved a fatality, a further investigation of the incident was conducted by the NYPD Accident Investigation Squad (AIS) with Detective Thomas McGrath acting as one of the lead investigators.[FN10] The final police accident investigation report includes, but is not limited to, the initial police accident report; numerous other police reports of their actual interviews of Mr. Bennett, Mr. Girard and other witnesses; a list of the names and addresses of other possible witnesses; a vehicle mechanical inspection report of the impounded tractor trailer; police photos and sketches of the vehicle and accident scene; the BAC results; and a vehicle speed computation test result sheet. The accident investigation revealed no relevant mechanical problems with the tractor trailer vehicle. It [*7]noted that the vehicle was proceeding "straight" at the time of the accident and that there were no skidmarks on the roadway.
The witness statements set forth in the accident investigation report note that decedent was seen walking near the left side of the trailer just prior to the incident, hanging onto and sometimes walking between the tractor and trailer, and was told by one or more other persons to move away. Ms. Heather Francis was interviewed by the police following the accident, gave her address, and allegedly stated that she was walking beside the driver's door; decedent was walking behind her, holding onto a handrail; she told decedent several times prior to the accident to stay clear of the trailer; and decedent did not listen. She further allegedly stated that she turned and observed decedent between the tractor trailer's gas tank and rear wheels and he appeared to have been pulled under the wheels.
Several witnesses, identified in the report by name and address, allegedly stated that decedent was injured when he stepped between the tractor cab and trailer to avoid the crowd. Other witnesses, also identified by name and address, allegedly reported having seen a large yellow snake and claimed to have been "told" that decedent walked between the tractor cab and trailer to avoid the snake.
Mr. Rosado was interviewed by an NYPD Detective following the incident, gave his name and address, and allegedly stated that he personally saw decedent dancing separately from two males who were dancing with a large snake. Mr. Rosado then allegedly observed decedent step between the tractor trailer's air tank and rear dual tires to avoid the snake, at which point the accident occurred.[FN11] [*8]
The police accident investigation report concludes that decedent walked into the tractor trailer's wheels during the parade and "the accident was caused by pedestrian error." The matter was forwarded to the Office of the Kings County District Attorney on September 15, 1999 and officially closed by the NYPD on September 27, 1999.
A motor vehicle fatality hearing was conducted in February 2001 by the DMV Safety Hearing Bureau pursuant to VTL § 510. Mr. Bennett appeared and, apparently, testified at the hearing. The Administrative Law Judge (ALJ) presiding over the DMV hearing also considered the police accident investigation report and Mr. Bennett's MV-104 report of the accident. After "careful consideration" of this evidence, the ALJ made certain findings of fact, including that decedent "was frightened by [a] snake, [and] attempted to climb between the rear of the tractor and the front of the float and fell beneath the rear wheels of the tractor." The ALJ concluded that "the evidence does not support a finding that [Mr. Bennett] committed any moving violation which may have contributed to this accident" and closed the matter.
Plaintiff filed a notice of claim against the City in April 2000 and commenced the instant action in or about September 2000. Plaintiff has, since then, served and filed one or more amended or supplemental notices of claim, supplemental summonses and complaints, and amended or supplemental bills of particulars. All available parties have apparently been deposed and discovery is complete.
[*9]The Instant Motion and Cross Motions
Defendants separately seek summary judgment dismissing the action, but assert similar grounds for dismissal in that each asserts that there was no breach of any applicable duty, nor any negligence with respect to decedent and that such negligence, if any, was not a proximate cause of the accident or that such negligence was so attenuated from the accident and decedent's death as to relieve defendants from any liability herein.
Preliminary Evidentiary Matter
As a threshold matter, plaintiff objects to defendants use of the police report to support their summary judgment applications on the ground that said report constitutes inadmissible hearsay evidence. Plaintiff also argues that the ALJ's decision following the DMV hearing is not res judicata as to the instant action since plaintiff was allegedly denied an opportunity to confront witnesses at the hearing and the ALJ's decision is purportedly based upon hearsay evidence and unsworn documents.
The court notes that while police accident reports are, for the most part, inadmissible hearsay evidence and, thus, may not generally be considered in support of a summary judgment motion (Snorac, Inc. v Charles, 3 Misc 3d 1102 [A], *3 [2004]) or, under several circumstances, even to defeat summary judgment (Stankowski v Kim, 286 AD2d 282, 283 [2001]), there is at least some authority for the proposition that a police accident report should be "credited by [the court] and used to support the grant of summary judgment" where it is not the only evidence offered to support summary judgment and, as arguably appears to be the case here, each piece of evidence is unrebutted and gives the same account of the accident (Bendik v Dybowski, 227 AD2d 228, 231-232 [1996], in dissent, citing Rue v Stokes, 191 AD2d 245 [1993]). In any event, the court neither considers nor relies upon Officer Albino's police accident report for any purpose proposed by defendants. As further explained below, however, a police report of an accident is materially different from a statutorily mandated accident investigation report and poses other evidentiary considerations.
As to the ALJ's decision, the court notes that the notice of the DMV hearing, which contains the names of the persons to which it was sent, has not been proffered for the court's review and plaintiff's claim that she was not granted an opportunity to confront witnesses at the hearing is conclusory. Moreover, plaintiff's argument concerning the ALJ's allegedly improper reliance upon hearsay evidence to support the decision is without avail since the minimum quantity of evidence supporting an administrative decision no longer has to be of a kind admissible in a court proceeding (Hancock v Town of Ramapo, 131 AD2d 480, 481 [1987], citing Matter of Eagle v Paterson, 57 NY2d 831, 833 [1982]).
The court further notes that, under both state and federal law, the findings of an administrative law judge, whether or not used for collateral estoppel or res judicata purposes, are admissible evidence "to be given weight in accordance with the nature of the administrative proceeding, including the participation of the parties" (Fitch v R.J. Reynolds Tobacco Co., 675 F Supp 133, 138 [1987], citing University of Tennessee v Elliott, 478 US 788 [1986]; Ryan v New York Telephone, 62 NY2d 494 [1984]; Sharkey v Police Dept., [*10]Town of Southampton, 179 AD2d 655, 657 [1992] [DMV Safety Hearing Bureau determination, following hearing, that accident could not have been avoided should be considered as some evidence that driver's intoxication was not a proximate cause of accident]; see also Henry v Daytop Village, Inc., 42 F3d 89, 96 [1994]; Dimps v Human Resources Administration of the City of New York, 2001 WL 1360235, *8 [SDNY]; Olaiya v Department of Juvenile Justice, 1999 WL 33104879, *4 [EDNY]).
Further, with respect to both the ALJ decision and AIS accident investigation report, although "the admissibility of a government investigative report under [CPLR 4520's public documents exception] has not been definitively addressed in this State" (Cramer v Kuhns, 213 AD2d 131, 135 [1995]), "it has been suggested that the New York courts may derive some guidance on the issue from examining the Federal counterpart to CPLR 4520, Federal Rules of Evidence, rule 803 (8) (C) and the judicial treatment thereof" (Kaiser v Metropolitan Transit Authority, 170 Misc 2d 321, 325 [1996], citing Cramer, 213 AD2d at 135).
Under FRE 803 (8) (C), "factual findings resulting from an investigation made pursuant to authority granted by law" are admissible and will not be excluded as hearsay "unless the sources of information or other circumstances indicate lack of trustworthiness" (see Cramer, 213 AD2d at 135; Kaiser, 170 Misc 2d at 325).[FN12] "The sweep of this rule encompasses records of administrative proceedings (Henry, 42 F3d at 96); i.e., in addition to the AIS accident investigation report, the at-issue ALJ decision. The proposed New York Evidence Code § 803 (c) (7) (A) (iii) would similarly provide for the admissibility, in civil actions, of "factual findings resulting from an investigation made pursuant to authority granted by law."
"The admission of a government report under this provision is committed to the trial court's sound discretion and will hinge upon 'whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission' .... To that end, it has been suggested that factors to be weighed in determining the document's trustworthiness and reliability, among other things, might include (1) the timeliness of the investigation, (2) the skill and/or experience of the investigator, (3) whether the report was based upon testimony adduced at a hearing, and (4) the possibility of bias" (Cramer, 213 AD2d at 136; Kaiser, 170 Misc 2d at 325; Bogdan v Peekskill Community Hospital, 168 [*11]Misc 2d 856, 860 [1996]).[FN13]
Here, the AIS accident investigation report was made under statutory mandate [FN14] and the court finds said document sufficiently trustworthy to be admissible under, at the very least, the common law public documents exception to the rule against hearsay (see Kozlowski v City of Amsterdam, 111 AD2d 476, 478 [1985], citing Sklar, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4520, p. 480, and Richardson on Evidence §§ 342, 346, at 308-309 [Prince 10th ed.]) and worthy of consideration on this summary judgment motion.
Applying the Cramer/Bogdan analysis to the instant matter, the accident investigation appears to have been thoroughly conducted at the time of or within reasonable temporal proximity to the accident, by skilled vehicle accident investigators who were members of the NYPD Accident Investigation Squad. Every possible cause or contributing possible cause of the accident appears to have been reasonably looked into, including the vehicle's speed and mechanical condition, and the alleged actions and condition of decedent and the driver at or near the time of the incident. The details in the report are thoroughly stated and the facts are consistent throughout. Neither the ALJ decision nor the final accident investigation report was issued as an incomplete finding and the accident investigation report, prior to the NYPD investigation being officially closed, was reviewed by the Kings County District Attorney's Office, adding to the document's reliability. The court "is satisfied as to its trustworthiness and lack of bias" (Bogdan, 168 Misc 2d at 861).
Here, as in Henry, defendants do not assert a preclusive effect but, to the court's understanding, are merely seeking to have the subject documents serve as presumptive and/or prima facie evidence that the vehicle was not operated negligently at the time of the incident and that decedent stepped into the vehicle's path (see Sharkey, 179 AD2d at 657; see also People v Hudson, 237 AD2d 943, 944 [1997] [such reports are prima facie evidence of the facts stated]).
Because the court finds that the AIS accident investigation report is a trustworthy [*12]document, admissible under the public documents exception to the hearsay rule,[FN15] and that the ALJ decision (a determination of an administrative agency rendered pursuant to its adjudicatory function) is similarly trustworthy, the court receives and considers these proffered documents as presumptive evidence of the facts stated therein; that is, that decedent stepped into the vehicle's path and that the driver did not violate any applicable rule of motor vehicle safety or operation.
Applicable Standards
A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant the court directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, to grant summary judgment, it must clearly appear that there are no material issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Moreover, on such a motion, the evidence will be construed in a light most favorable to the party against whom summary judgment is sought (Weiss v Garfield, 21 AD2d 156, 158 [1964]).
Where, however, the moving parties have established their entitlement to summary judgment, the opposing party must either lay bare its proof and demonstrate the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for the failure to do so (Zuckerman, 49 NY2d at 562).
To establish a prima facie case of negligence against defendants, plaintiff must show: (1) the existence of a duty on each defendant's part to decedent; (2) a breach of that duty; and (3) that such breach was a substantial cause of the resulting injury (see Solomon v City of New York, 66 NY2d 1026 [1985]; Wayburn v Madison Land Ltd. Partnership, 282 AD2d 301, 302 [2001]; Gross v New York City Transit Authority, 256 AD2d 128, 129 [1998]; Barksdale v Henry, 228 AD2d 947 [1996]; Cruz v New York City Transit Authority, 136 AD2d 196, 198 [1988]).
The City's Motion
Plaintiff's notice of claim, summons and complaint and initial bill of particulars allege that the City was negligent in the planning, supervision and management of the 1999 West Indian American Day parade, in failing to supervise the crowd and in failing to exercise reasonable care against foreseeable dangers. [*13]
The City moves for the dismissal of plaintiff's complaint against it for failure to state a cause of action and based upon plaintiff's alleged inability to establish a prima facie case of negligence against the City. The City asserts that it is immune from suit in this matter since plaintiff's negligence cause of action arises from discretionary governmental functions; specifically, the issuance of a parade permit, monitoring of the parade, provision of a security plan and traffic regulation. The City further argues that dismissal is warranted since no special relationship or duty existed between the City and decedent.
The law is well-settled that a municipality is immune from negligence claims arising out of the performance of its governmental functions and may not be held liable unless a special relationship exists between the municipality and the injured person thereby creating a "special duty" of protection with respect to that individual (see Mastroianni v County of Suffolk, 91 NY2d 198 [1997]; Kircher v City of Jamestown, 74 NY2d 251, 255-256 [1989]; Bonner v City of New York, 73 NY2d 930, 932 [1989]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]; De Long v County of Erie, 60 NY2d 296, 304 [1983]; Sandstrom v Rodriguez, 221 AD2d 513 [1995]; Figueroa v New York City Transit Authority, 213 AD2d 586 [1995]). To establish a "special relationship," a plaintiff must show that the municipality, through affirmative acts or promises, "has lulled him or her into foregoing other available avenues of protection or that it has voluntarily assumed a duty separate from that which is owed to the public generally" (Bishop v Bostick, 141 AD2d 487, 488 [1988]; see also Lorenzo v City of New York, 192 AD2d 586 [1993]).
Here, the City has prima facie demonstrated that the parade-related duties in question, including permit issuance, traffic regulation and crowd control, are governmental duties designed to protect all parade spectators and not any person in particular and within the NYPD's discretion (see Balsam v Delma Engineering Corp., 90 NY2d 966, 968 [1997]; Maslowski v H.J. Kalikow & Co., Inc., 168 AD2d 265, 266 [1990]; Caronna v Macy's East, Inc., 2/21/2001 NYLJ 22, [col. 1] [NY Sup]; see also Sebastian v State, 93 NY2d 790, 796 [1999]; Kircher, 74 NY2d at 256; Cuffy, 69 NY2d at 260; Sorichetti v City of New York, 65 NY2d 461, 468 [1985]).
The City has also met its burden, through the presentation of deposition testimony and other evidence, of demonstrating that no special relationship existed between decedent and the City and that decedent did not in any manner rely upon any action undertaken by the police (see Maslowski, 168 AD2d at 266; Cuffy, 69 NY2d at 255; Gonzalez, 228 AD2d at 411).
Plaintiff, in opposition, fails to dispute the City's governmental immunity argument or its claim that decedent did not have a special relationship with the police as concerns and affects this incident. Instead, plaintiff asserts that the City's liability in this matter rests upon the alleged negligent conduct of Officer Medina. Specifically, plaintiff now claims that Officer Medina was negligent in allegedly issuing a command to the vehicle's driver, Mr. Bennett, to proceed forward, even though some parade revelers were, at the time, purportedly attempting to climb up onto the trailer, and that said conduct on Officer Medina's [*14]part constituted misfeasance and not nonfeasance, thereby obviating plaintiff's need to establish the existence of a special relationship.
The City responds that this claim concerning Officer Medina was not raised in plaintiff's August 2000 notice of claim against the City and is set forth for the first time in plaintiff's July 2003 supplemental bill of particulars, served well over three years after the incident in question and four months following Mr. Bennett's examination before trial in this matter.
"[T]he purpose of the statutory notice of claim requirement (General Municipal Law [GML] § 50-e) is to afford the public corporation an 'adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available'" (Caselli v City of New York, 105 AD2d 251, 252 [1984], quoting Teresta v City of New York, 304 NY 440, 443 [1952]). Moreover, the GML 50-e (6) "notice of claim amendment provision merely permits correction of good faith, non-prejudicial, technical mistakes, defects or omissions, not substantive changes in the theory of liability" (Mahase v Manhattan and Bronx Surface Transit Operating Authority, 3 AD3d 410, 411 [2004]; see also White v New York City Housing Authority, 288 AD2d 150 [2001]; Johnson v County of Suffolk, 238 AD2d 480 [1997]).
Here, plaintiff's notice of claim is completely inadequate to notify the City that it was being charged with any negligence as respects Officer Medina's actions on the incident date and the specific claim of Officer Medina's negligent direction of the operation of the vehicle represents a clear and significant change in the theory of the City's alleged liability. Moreover, it is clear that plaintiff's service of an amended bill of particulars setting forth this new factual premise and theory of liability was no more than an untimely and improper attempt to amend plaintiff's notice of claim (see Tiburcio v New York City Transit Authority, 270 AD2d 110 [2000]; see also Barksdale v New York City Transit Authority, 294 AD2d 210, 211 [2002]; White, 288 AD2d at 150; Lewis v New York City Housing Authority, 237 AD2d 414 [1997]; Cippitelli v Town of Niskayuna, 203 AD2d 632, 634 [1994]; Merchant v Town of Halfmoon, 194 AD2d 1031, 1032 [1993]).
In addition to finding that plaintiff's allegations concerning Officer Medina constitute a new and substantive change in the theory of the City's liability, the court further finds, upon a complete search and review of the record and as argued by the City, that the City would, at this point, be severely prejudiced were it required to defend this new theory of liability. Plaintiff is precluded from relying upon such theory because of her failure to timely assert it in the original notice of claim or otherwise (see Mahase, 3 AD3d at 411; Barksdale, 294 AD2d at 211; Tiburcio, 270 AD2d at 110; Dos Santos v New York City Transit Authority, 257 AD2d 468 [1999]; Lewis, 237 AD2d at 414; Assante v City of New York, 173 AD2d 430, 431 [1991]; Mazzilli v City of New York, 154 AD2d 355, 357 [1989]).
Were the court to consider this new claim, it would find no basis for liability against the City. First, there is no evidence, as discussed below, that the vehicle was negligently operated during the incident, and there is evidence only that decedent's own negligent actions [*15]were the proximate cause of his accident and death.
Second, decedent's "step-brother," Mr. Girard, who was traveling with decedent alongside the trailer at the time of the accident, testified that he never saw decedent attempt to jump or climb onto the trailer, and there is no other evidence in the record of such an attempt by decedent. Accordingly, plaintiff's allegation that Officer Medina's alleged misfeasance in commanding Mr. Bennett to move the vehicle forward, even after allegedly being informed that spectators had again begun to climb onto the trailer, was also a proximate cause of decedent's accident, can be based only on mere conjecture and surmise, an expression of hope and, on this record, an unsubstantiated allegation insufficient to defeat summary judgment (Zuckerman, 49 NY2d at 562; see also Ohdan v City of New York, 268 AD2d 86, 89 [2000] ["A defendant may act negligently without that negligence constituting a proximate cause of the accident"]).
Third, the record demonstrates that escort officers, including Officer Medina, had no authority with respect to the operation of the vehicles they were escorting and, even if Officer Medina independently undertook such a responsibility, several spotters traveled in front of the vehicle, giving hand signals to stop and go. These signals were all clearly seen, understood, and then acted upon by the driver, Mr. Bennett. In each and every instance prior to the accident, the signal to stop or to move the vehicle along the parade route did not originate with and was only (unnecessarily) relayed by Officer Medina. Under such circumstances, Officer Medina's actions can hardly be interpreted as a personal certification by the NYPD to Mr. Bennett that it was safe for the vehicle to proceed.
The record is also clear from Mr. Bennett's testimony that, just prior to the accident, the vehicle was signaled to and did stop, at which time Officer Medina exited the vehicle and told several parade revelers to step off and away from the tractor trailer. Mr. Bennett further testified that, once the vehicle proceeded, he did not immediately notice anyone attempting to jump onto the trailer and the vehicle was moving when, just prior to the accident, he allegedly informed Officer Medina that the spectators were "doing it again." If, as plaintiff claims, Officer Medina was then under a duty to act, his failure was one of nonfeasance in not affirmatively acting to direct Mr. Bennett to stop the vehicle, and not one of misfeasance, since the dangerous condition did not exist at the time he allegedly commanded Mr. Bennett to move the vehicle forward (see generally Figueroa v New York City Transit Authority, 152 Misc 2d 948, 954 [1991] [municipality may not be held liable where officer took no affirmative action]).
Finally, Officer Medina's claimed actions are not only irrelevant in the absence of proximate cause, but also insufficient to relieve plaintiff of the burden of establishing a special relationship where misfeasance is alleged but the officer is not shown to have acted without due care and with reckless disregard for the safety of others (see Persaud v City of New York, 267 AD2d 220 [1999]; Maloney v Scarfone, 25 AD2d 630, 631 [1966]).
This court has thoroughly and carefully reviewed the record of this matter which demonstrates only that Officer Medina, in periodically stepping out of and walking alongside [*16]the tractor trailer, directing spectators to stay away from the vehicle and in faithfully relaying the messages to Mr. Bennett to move the vehicle forward only after such signals were first sent by spotters walking in front of the tractor trailer and monitoring the traffic and pedestrian situation, exercised reasonable care while under escort duty and acted neither recklessly nor in knowing disregard for the safety of others (see Lorber v Town of Hamburg, 225 AD2d 1062 [1996]). This matter is distinguishable from those cases cited by plaintiff in that, to the extent he is charged with having commanded the vehicle's movement, Officer Medina never directed the vehicle to move from a standstill position without first checking to see whether it was reasonably safe to do so.
In sum, plaintiff's new theory of the City's liability, grounded upon Officer Medina's alleged misfeasance, is both precluded and without merit. Since plaintiff has failed to oppose the City's arguments regarding governmental immunity and special relationship, or to raise any triable issue of fact with respect to the City's liability herein, the City is entitled to summary judgment dismissing the complaint and any and all cross claims asserted against it.
The Separate Bennett and JRC Motions
Mr. Bennett moves for summary judgment dismissing the complaint on the ground that there is no evidence of any negligence on his part in connection with this incident. JRC moves for summary judgment in its favor on the same ground.[FN16] In support of their summary judgment applications, they proffer copies of the deposition transcripts, the NYPD AIS accident investigation report and the ALJ's decision following the DMV hearing.
The deposition testimony of the various witnesses and other portions of the record with respect to the condition of the flatbed tractor trailer in question demonstrates that the vehicle was equipped with wooden wheel guards where required and did not suffer from any pertinent mechanical problems. As to the condition and conduct of the vehicle's driver, the record shows that Mr. Bennett, at all times while operating the vehicle on the parade route, proceeded carefully and cautiously, never exceeded the speed limit and never operated the vehicle in excess of 5-8 m.p.h. The record, in fact, demonstrates that Mr. Bennett never proceeded without first being signaled that it was safe to do so by the parade spotters (as personally observed by him and relayed by Officer Medina); always immediately stopped his vehicle when signaled to do so by the spotters; and was appropriately diligent in checking his side mirrors for possible obstructions (see Laizure v Roslyn Highlands Hook, Ladder, Engine & Hose Co., Inc., 156 AD2d 337 [1989] [driver of emergency vehicle exercised [*17]appropriate caution by coming to a full stop before attempting to park vehicle, traveling at slow rate of speed and making full use of side mirrors]).
The record, including the deposition testimony of the various witnesses, accident investigation report and skid mark test results, further shows that Mr. Bennett was impaired neither by alcohol nor by any controlled substance; the vehicle was not driven erratically; the vehicle proceeded on a straight line along the parade route, and the vehicle, at the time of the accident, was moving no more than 5 m.p.h.
According to Mr. Bennett's testimony, he brought the vehicle to a stop upon being signaled to do so several minutes prior to the accident, at which point, Officer Medina allegedly instructed parade revelers to step back away from the truck. Next, after Mr. Bennett received a signal that it was once again safe to proceed, he began to move the vehicle forward, looked in his mirrors, and did not immediately see anyone trying to climb onto the trailer or tractor. Although Mr. Bennett testified that, subsequent thereto, he did observe some parade revelers attempting to climb onto the truck and trailer while the vehicle was still in motion, he further testified that he never observed decedent prior to the accident and was not aware that decedent had stepped into the trailer's path or the open area between the truck's cab and trailer's front wheels.
There is absolutely no evidence on the record that decedent was one of the people Mr. Bennett allegedly observed attempting to climb onto the vehicle or that decedent himself ever attempted to climb onto the vehicle. Mr. Girard testified, and several witnesses interviewed by the police immediately following the accident, did report that decedent, just prior to the accident, had been walking and dancing extremely close to the vehicle, behind the tractor and near the trailer's wheels, sometimes stepping into the open area between the tractor's cab and the trailer's front wheels. The evidence further demonstrates that decedent was told of the danger of walking too close to the vehicle by Mr. Girard, the band members and, possibly, others.
The NYPD Accident Investigation Squad, following a lengthy and detailed investigation, prepared an accident investigation report of the incident. While not considering the AIS report for the conclusion contained therein (that "the accident was caused by pedestrian error"), the court takes note of the fact set forth in the report that decedent walked into the tractor trailer's wheels during the parade and the report's failure to assert any facts from which it may be concluded that Mr. Bennett was in any manner negligent in the happening of the accident. Also proffered is the ALJ's decision after the DMV hearing, which decision sets forth as a finding of fact that decedent "attempted to climb between the rear of the tractor and the front of the float and fell beneath the rear wheels of the tractor," and fails to attribute any fault to Mr. Bennett in the happening of the accident, while concluding that there is no evidence to support a finding that Mr. Bennett "committed any moving violation which may have contributed to this accident."
The court notes that, although negligence cases generally do not lend themselves to resolution by motion for summary judgment, such a motion will be granted where the facts [*18]clearly show the absence of any fault or culpable conduct by a party (Bush v Blankenheim, 254 AD2d 736 [1998]; see also Lazar v Fea Leasing, Inc., 264 AD2d 818 [1999]; Morowitz v Naughton, 150 AD2d 536, 537 [1989]).
Additionally, a defendant's motion for summary judgment is properly granted where there are several equally plausible explanations for an accident and no competent admissible proof of the plaintiff's or other party's theory supporting the contention that the movant was negligent (Johnson v Sniffen, 265 AD2d 304 [1999]).
As to the instant matter, and upon a thorough and exhaustive review of the record, the court finds that the deposition testimony and other evidence is sufficient to make out a prima facie case that Mr. Bennett was not negligent in the happening of this accident and may not be held liable for decedent's injuries and death.
The undisputed evidence demonstrates that Mr. Bennett operated the vehicle in a controlled and careful manner, with the proper ebb and flow of parade traffic, as directed to so do by the parade spotters and/or members of the NYPD. There is, in contrast, no evidence that he operated the vehicle in an uncontrolled, unlawful, unwise or abrupt manner, that he failed to see what should have been seen or to act reasonably in avoiding a collision with decedent, or that he was otherwise negligent in the happening of this accident.
As the court finds that Mr. Bennett and JRC have each made a prima facie case of their entitlement to summary judgment dismissing the complaint and cross claims against them, it is incumbent upon plaintiff to lay bare her proof by presenting evidence in an admissible form demonstrating Mr. Bennett's negligence in the happening of the accident creating a legitimate question of fact as to that issue (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; see also Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]). Plaintiff has failed to do so.
Plaintiff's opposition to the instant motions consists of an allegation that Mr. Bennett negligently operated his vehicle in violation of 34 RCNY § 4-04 (d)[FN17] by driving the flatbed tractor trailer "through a swarming crowd that appeared dangerously close," although he was aware of parade spectators attempting to climb onto the tractor trailer.
"[I]t is well settled that 'a shadowy semblance of an issue or bald conclusory assertions, even if believable, are not enough' to defeat a motion for summary judgment" (Morowitz, 150 AD2d at 537, quoting Mayer v McBrunigan Construction Corp., 105 AD2d 774 [1984]). Nor are "[m]ere conclusions, expressions of hope, allegations or assertions" sufficient to raise a triable fact issue (Namisnak v Martin, 244 AD2d 258, 259 [1997]). Here, plaintiff offers no admissible explanation for the accident that does not implicate decedent's own negligence and merely speculates as to the issues of causation and Mr. Bennett's [*19]possible negligence.
Contrary to plaintiff's assertions, no genuine question of fact exists based upon Mr. Bennett's deposition testimony (that, after the vehicle was already in motion, he observed some parade revelers attempt to climb onto the vehicle, but kept going as directed) as to whether Mr. Bennett was in a position to observe decedent prior to the accident and acted reasonably under the circumstances.
Construing the evidence in the light most favorable to plaintiff and affording plaintiff every reasonable inference (Weiss, 21 AD2d at 158), such testimony only implicates, if anything, Mr. Bennett's possible duty to those spectators who were then, recklessly, attempting to climb onto the truck while it was already moving.
However, a party cannot be found liable unless the alleged negligence was a proximate cause of the accident (Applebee v State of New York, 308 NY 502 [1955]). Moreover, "[a]lthough the causation issue is generally left for the trier of fact, it is the court's function to determine if a prima facie case of causation has been established" (Heffler v State, 96 AD2d 926, 929 [1983], in dissent, citing Ventricelli v Kinney System Rent A Car, Inc., 45 NY2d 950 [1978]). "Conjecture and speculation cannot substitute for proof of causation" (Heffler, 96 AD2d at 929).
Here, there is absolutely nothing in the record to indicate either that decedent was a "climbing" spectator or that he lost his balance attempting such a feat due to Mr. Bennett's conscious disregard of an obvious hazard and failure to immediately stop the vehicle. Further, there is no evidence that Mr. Bennett either actually observed or should have observed decedent for any significant period of time prior to the accident or knew or somehow should have known that decedent had placed himself into in an immediately hazardous position, and was, thus, in a position to take any steps to either reasonably foresee or avoid the specific collision between the vehicle and decedent (see Gonzalez, 95 NY2d at 129 [conclusory assertions by pedestrian's accident reconstruction expert that driver had sufficient time to bring truck to a stop and/or to swerve to avoid pedestrian prior to impact and that driver failed to keep a proper lookout and failed to exercise reasonable and proper control of truck, insufficient to defeat defense summary judgment motion]; Barile v Carroll, 280 AD2d 988, 988-989 [2001]). Indeed, under the circumstances, Mr. Bennett may be said to have acted reasonably in obeying the signals that were relayed to him and in not suddenly stopping the vehicle, an act that could have proven quite dangerous to those revelers attempting to climb onto the truck (see Holliday v Hudson Armored Car & Courier Service, Inc., 301 AD2d 392, 394 [2003]).
"Where only one conclusion may be drawn from the established facts ... the question of legal cause may be decided as a matter of law" (Culkin v Parks and Recreation Department, 168 AD2d 912 [1990]). Here, whether decedent was merely walking or dancing too close to the tractor trailer or stepped into the open space between the tractor cab and front trailer to avoid a snake in the crowd, the conclusion is inescapable that decedent, without any negligence on Mr. Bennett's part, ignored the clear and recent warnings given him by others [*20]and negligently stepped into the path of the moving vehicle, thereby proximately causing the accident [Fieldy v Weimer, 169 AD2d 961, 962 [1991] [the testimony of witnesses who observed the injured pedestrian's actions just prior to the accident in question may be used to reasonably infer that the pedestrian stumbled into the vehicle's path]).
In sum, plaintiff fails to make a prima facie demonstration of causation, offers only speculation and conjecture and fails to present any competent evidence to support her claim that Mr. Bennett's driving conduct violated any applicable statute or ordinance or otherwise fell below a permissible standard of reasonableness. Mr. Bennett and JRC are, accordingly, entitled to summary judgment dismissing the complaint against them (see generally Gonzalez, 95 NY2d at 129; Dennis v Wood, 231 AD2d 487 [1996]; Trillo v Gerry, 135 AD2d 625 [1987]).
Burning Flames Motion & WIADCA Cross Motion
Plaintiff alleges that the Burning Flames were negligent in failing to instruct their volunteers (according to plaintiff, "nominally deputized as marshals") in their parade spotter duties; arriving "fashionably late" at the parade; "encouraging their fans and the crowd to get dangerously close to their flatbed" by tossing t-shirts and "rousing the crowd into a line dance paralleling the moving truck"; and not acting reasonably in view of incidents alleged to have occurred in prior years.
Plaintiff also alleges that WIADCA was negligent in the performance of its purported supervisory function as parade sponsor and organizer - - by showing "little concern for crowd safety" and in failing to "subject[] the Burning Flames to any oversight," including: (1) investigating alleged prior incidents of spectator injury involving a Burning Flames float of which WIADCA purportedly had notice; (2) imposing "special conditions" on the Burning Flames, including requiring their attendance at pre-parade organizational and safety meetings, early arrival at the staging area and cessation of music at 6 p.m.; and (3) requiring proof that they had obtained, designated and trained parade marshals.
The Burning Flames move for summary judgment on the ground that they neither had nor breached any applicable duty to decedent and, in any event, that their alleged actions were not a proximate cause of decedent's death. WIADCA separately cross-moves for summary judgment on the ground that plaintiff cannot demonstrate that WIADCA's organizational effort or any other negligent act alleged to have been committed by WIADCA, was a substantial cause of decedent's accident.
The Burning Flames and WIADCA both assert that: (1) the risks inherent in decedent's recreational activity were open and obvious, not concealed from his view, and of which he should have been reasonably aware; (2) despite their exercise of reasonable care, decedent knowingly and voluntarily placed himself in harm's way; and (3) the actual and proximate cause of the accident was decedent's independent exercise of judgment and his own or another, unrelated, individual's unfortunate and unforeseeable superseding conduct.
The court again notes that, in order to hold defendants liable, plaintiff must demonstrate a duty to decedent, a breach of that duty and causation (Solomon, 66 NY2d at [*21]1027). In support of their summary judgment applications, the Burning Flames and WIADCA submit copies of the transcripts of deposition testimony, the AIS accident investigation report and the ALJ decision after the DMV hearing.
Said evidence, including Mr. Girard's deposition testimony, demonstrates that, in addition to the wooden and metal barricades placed along the parade route and the large force of uniformed and non-uniformed police officers, numerous individuals acted as volunteer spotters for the parade in general. Many other volunteers and friends acted as spotters for specific floats, including the Burning Flames float, with their task being to assist in keeping or attempting to keep spectators who had breached the police barriers from getting too close to the floats.
Defendants' precautionary measures (aided by the NYPD) were specifically addressed to keeping spectators behind the barricades, but also included efforts to keep those spectators who breached the barriers from coming unreasonably close to the areas in between and alongside of the different motorized floats, areas where the danger of injury was greatest. The record demonstrates that the parade marshals and spotters were, in fact, instrumental in guiding the motorized floats; kept them traveling in a straight line, extremely slowly; stopped them when indicated by crowd or other conditions; and allowed them only to "creep" slowly along in consideration of the large crowd of spectators and revelers. The record further demonstrates that, in addition to the NYPD escorts, general parade volunteers and Burning Flames friends and volunteers, as well as the band members themselves, repeatedly warned the crowd not to attempt to jump or climb onto the flatbed tractor trailer and to back away from and not to get too close to the vehicle and its tires.
The court notes that a "general awareness" that a dangerous condition may be present (here, that police and civilian efforts notwithstanding, many parade spectators nevertheless customarily cross barricades to enter the street and dance or walk alongside the motorized floats) is insufficient to constitute notice of the particular condition at issue (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Welles v New York City Housing Authority, 284 AD2d 327, 328 [2001]; Loguidice v Fiorito, 254 AD2d 714 [1998]; Maguire v Southland Corp., 245 AD2d 347, 348 [1997]). Defendants were not required to eliminate every possible risk associated with spectator injury or to "become insurers of the spectators" and, to the extent a duty of care was owed by them to decedent, it was satisfied by both the Burning Flames and WIADCA (Yule v Town of Huntington, 204 AD2d 439, 440-441 [1994]; see also Maheshwari v City of New York, 307 AD2d 797 [2003]).
Moreover, a negligent act is considered the proximate cause of an injury only if that act was also a substantial factor in brining about the injury (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [1980]), and "is not to be regarded as a proximate cause unless it is in clear sequence with the result and unless it could have been reasonably anticipated that the consequences complained of would result from the alleged wrongful act" (Bolsenbroek v Tully & Di Napoli, Inc., 12 AD2d 376, 377-378 [1961]).
Here, to the extent the Burning Flames and WIADCA were in any way negligent, the [*22]court finds that such negligence provides no basis for liability, since decedent himself was the sole proximate cause of the accident and the record only otherwise suggests, at best, that the accident was caused by the unforeseeable and superceding acts of a third-party, not defendants.
Decedent, by breaching the parade barriers, entering the street and parade route, and reveling alongside the Burning Flames float, clearly engaged in a recreational activity, a carnival/parade celebration, and consented to those commonly appreciated risks which are inherent in and arise out of the nature of that recreational activity and flow from such participation, including those associated with the pedestrian and traffic congestion of the street on which it was being carried out (see generally Morgan v State of New York, 90 NY2d 471, 484 [1997]).
The event at issue was not just a parade, but a carnival-type parade, where mass spectator revelry and dancing crowds are common and expected. As to the parade in question, the surging crowd and motorized vehicles were open and obvious conditions (see Maddox v City of New York, 66 NY2d 270, 277 [1985]; see also Sykes v County of Erie, 94 NY2d 912 [2000]; Clements v Skate 9H Realty Inc., 277 AD2d 614 [2000]) and were not unusual, concealed or unreasonably increased (see Hoffman v City of New York, 172 AD2d 716, 717 [1991]).
At age 17, decedent was old enough to appreciate the dangers associated with walking and/or dancing too close to a large flatbed tractor trailer in that crowd, even if the tractor trailer was proceeding at a minimal rate of speed. According to the record, decedent walked or danced in close proximity to the flatbed trailer for approximately 15 minutes and several blocks prior to this accident and, if for some reason, he did not readily and immediately appreciate the obvious hazard, he clearly should have after being warned by one or more people nearby, including his "step-brother," Mr. Girard. By ignoring these warnings and continuing to revel in close proximity to the flatbed trailer truck and its tires, decedent voluntarily assumed the risk of being injured by an unconcealed, open and obvious dangerous condition of the site (see Arbegast v Board of Education, 65 NY2d 161, 171 [1985]; see also Eisenhower v United States, 216 F Supp 803, 808 [1963]; Meli v Star Power National Talent Co., 283 AD2d 617, 618 [2001]).
Under the circumstances, it cannot be said that the Burning Flames' alleged actions in throwing T-shirts or even in encouraging spectators to dance near the flatbed trailer were a substantial cause of decedent's accident or that either the Burning Flames or WIADCA were required to anticipate that, whether by knowing choice, mere inattention or a fear resulting from the appearance of a snake in the crowd, decedent would ill-advisedly step into the path of the trailer's tires or into the area between the tractor cab and front trailer tires, to remove himself from the crowd conditions.[FN18] [*23]
Indeed, once decedent voluntarily chose to participate in the up-close parade revelry, the duty, if any of WIADCA and the Burning Flames' to decedent was to exercise care to make the condition for decedent and other revelers as safe as they appeared to be. Since the risks of the activity were perfectly obvious and were or should have been fully comprehended by decedent, he must be deemed to have consented to them and the Burning Flames and WIADCA to have performed their duty (see Turcotte v Fell, 68 NY2d 432, 439 [1986]). To the extent decedent may have been frightened by the sudden appearance of a large snake in the crowd, that was clearly an unfortunate and unforeseeable event which superseded and extinguished any negligence on said defendants' part.
WIADCA and the Burning Flames have prima facie demonstrated that they acted reasonably and breached no applicable duty to decedent; that decedent assumed the risk of his activity and was the sole agent of his own accident and injuries; and that said defendants, at most, fortuitously created or furnished the condition for decedent's accident, but were not a cause thereof (see Gilmore v Ritchie, 260 AD2d 347, 347-348 [1999]; Button v Rainbow Products and Services, Inc., 234 AD2d 664 [1996]; see also Chisman v J.J. Cassone Bakery, Inc., 133 F3d 906 [1998]). Plaintiff must, therefore, come forward with admissible non-speculative evidence that is sufficient to raise an issue of fact requiring the trial of this matter.
Plaintiff, in opposition, alleges, inter alia, that a triable issue of fact exists as to the Burning Flames' negligence in this matter based upon Officer Medina's deposition testimony that he never saw the Burning Flames or their spotters motioning people away from the flatbed tractor trailer. This portion of Officer Medina's testimony relied upon by plaintiff is, however, not probative of the issues of negligence and causation since the officer claimed he never saw anyone trying to climb onto the trailer, and the accident, in any event, occurred on the opposite side, and out of view, of the officer's line of vision.
The record is clear that decedent's accident occurred on the driver's side of the flatbed tractor trailer and that Clarence Edwards and Ms. Bostic, the Burning Flames' lead singers, were facing and singing to the crowd on that same side of the trailer. Officer Medina specifically testified that he walked alongside the opposite, passenger side, of the tractor trailer and, even when riding in the truck's cab, he could not see the driver's side of the tractor trailer and could not see behind it. Indeed, Officer Medina testified that, not only could he not see any activities on the driver's side of the trailer, he could not see Detective Albino, who was allegedly performing escort duty directly behind the Burning Flames float.
Thus, Officer Medina's alleged observations as to what the Burning Flames and their volunteers did or did not do with respect to crowd control on the passenger side of the vehicle is clearly not probative of what happened on the vehicle's opposite side, out of his [*24]view. There is, moreover, no evidence of causation since any failure implicated by Officer Medina's testimony can only relate to the vehicle's passenger side and there is, in any event, absolutely no evidence that decedent ever attempted to jump or climb onto the trailer. The record, instead, suggests only that the accident occurred when decedent either voluntarily stepped, or was suddenly frightened by an unidentified third-party into stepping, too close to the trailer's wheels and/or into an open area between the tractor cab and front trailer wheels.
There is no evidence that the band and their volunteers did not perform their crowd control functions with reasonable care or that the accident was caused by the band's improper training or supervision of their members and volunteers. Further, there is no indication that a breach of any duty to decedent, as opposed to his own voluntary assumption of a known risk, was a proximate cause of the accident. Plaintiff's contrary claims are not logically supported on the record and would be based upon pure speculation.
Equally speculative and unavailing is plaintiff's claim or implication that decedent's accident, which occurred at approximately 8 p.m., occurred due to the Burning Flames' late arrival or because they were allowed to continue playing past the official parade end time of 6 p.m. There is absolutely no evidence that the alleged lateness of the hour (and the lighting, weather or traffic conditions reasonably resulting therefrom) either caused or contributed to decedent's accident. Moreover, Kenrick Faustin, WIADCA's vice president, testified that he knew of no incidents which occurred as a result of the parade extending beyond its permitted time and plaintiff, beyond conjecture and surmise, fails to explain how decedent's accident was related either to the band's tardiness or the lateness of the hour.
The court again notes that where a defendant's action (here the continuation of the music after the 6 p.m. cut-off time) merely furnishes the condition or occasion for an accident but did not put in motion the agency by which the injuries were inflicted, no liability will attach (Ventricelli , 45 NY2d at 952; Hersman v Hadley, 235 AD2d 714, 717-718 [1997]).
To the extent plaintiff alleges that the Burning Flames created a snare or "trap for the unwary, too perilous to be endured" (Murphy v Steeplechase Amusement Co., 250 NY 479, 483 [1929]) by throwing T-shirts and/or allegedly encouraging spectators to dance near the float, there is no evidence that the band was throwing T-shirts at the time of the accident or that decedent was attempting to obtain a T-shirt and no evidence that decedent was dancing as the band allegedly commanded, or even dancing at all, as opposed to merely walking. Any such claims by plaintiff would be improperly based upon speculation and surmise.
The court further notes that, the alleged lyrics notwithstanding, Mr. Girard's testimony and other portions of the record demonstrate that the band, on one or more occasions, stopped playing their music for the specific purpose of warning spectators not to get too close to the trailer. Assuming that decedent was dancing as the band allegedly commanded, the large motorized flatbed trailer was an open and obvious condition of his dance floor, a dance floor decedent improperly entered by breaching one or more police barriers, and the condition of which decedent voluntarily assumed by commencing and continuing this activity (see [*25]Eisenhower, 216 F Supp at 808; Arbegast, 65 NY2d at 161; Meli v Star Power National Talent Co., 283 AD2d 617, 618 [2001]).
Plaintiff also fails to demonstrate, other than by asking the court to resort to improper speculation and surmise, that alleged prior incidents between a Burning Flames float and parade spectators involved any negligence by defendants herein or has any bearing, relevance or materiality in the instant action (see generally Matter of Estate of Brandon, 55 NY2d 206 [1982] [it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion]; Campbell v State of New York, 105 Misc 2d 204, 205 [1980] [information regarding similar filed claims need not be disclosed, since materiality and relevance of such information was not shown]). The issue of causation as to the present parade accident cannot be proven by the allegation that the Burning Flames were involved in a different, unrelated, parade accident.
Nor does plaintiff raise a legitimate issue of fact as to whether the Burning Flames should have been held to some special or heightened standard of performance, as opposed to other musical and masquerade bands participating in the parade, or that WIADC's failure to hold the band to this heightened standard suggested by plaintiff was a proximate cause of decedent's accident.
The incident in question, while unfortunate, does not condone plaintiff's attempt to "weave a web of liability" out of defendants' alleged deviations from what plaintiff would consider to be ideal parade conduct, conditions and supervision (Hersman, 235 AD2d at 717-718). On this record, defendants' alleged deviations, even if negligent, were, as a matter of law, not a proximate cause of decedent's death. The accident was solely attributable to decedent's own actions or the superceding, unforeseeable actions of an unidentified third-party not under the control of any defendant herein.
As plaintiff has failed to raise a triable issue of fact on the questions of breach of duty and proximate cause, and because the court finds that decedent voluntary assumed a risk readily discernable to a person of decedent's age and that his own conduct or, at best, that of an unidentified third-party, was an unforeseen, superseding and intervening event, summary judgment dismissing the complaint as against the Burning Flames and WIADCA is appropriate.
Miscellaneous Matters
The supplemental complaint alleges that Falco Trucking was negligent in its ownership and operation of the flatbed tractor trailer truck. The supplemental complaint also alleges that Mr. Rosado was the Burning Flames' agent, servant and employee and that he was negligent in, inter alia, "supervising and managing the operation and crowd control" of the parade.
Falco Trucking and Mr. Rosado are, for the reasons previously discussed at length herein in relation to the other defendants, equally entitled to summary judgment dismissing the complaint and any and all cross-claims against them (CPLR3212 [b]; see also Carnegie Hall Corp. v City University of New York, 286 AD2d 214, 215 [2001] ["[a] court entertaining [*26]a motion for summary judgment may search the record and, if appropriate, grant summary judgment to the nonmoving party on any related claim"]; Dormena v Wallace, 282 AD2d 425, 427 [2001]).
The court has considered and rejected as being without merit plaintiff's remaining arguments, including that the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76, 80 [1948]), applicable in wrongful death cases, serves to reduce plaintiff's burden of proof herein.
The Noseworthy doctrine has no application "unless plaintiff first makes a showing of facts from which [defendants'] negligence may be inferred" (Barile, 280 AD2d at 989; see also Blanco v Oliveri, 304 AD2d 599 [2003] ["the plaintiff is not excused from his burden of demonstrating the existence of a triable issue of fact to avoid summary judgment"]; Stankowski, 286 AD2d at 284; Lynn v Lynn, 216 AD2d 194, 195 [1995] [the rule does not "shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case"]).
As to the instant matter, and assuming Noseworthy's applicability, "plaintiff, at best, relies on inferences as to causation which are based solely upon speculation" (Lynn, 216 AD2d at 196) and has "failed to identify any triable issue of fact as to the essential issue of causation" so as to avoid summary judgment (Blanco, 304 AD2d at 600). It further appears, but the court does not determine, that the accident was, at the moment of actual impact, unwitnessed and the parties are "on equal footing with respect to knowledge of the occurrence," thus precluding the doctrine's application (Lynn, 216 AD2d at 195; see also Gayle v City of New York, 256 AD2d 541, 542 [1998]).
Conclusion
Based upon all of the foregoing, defendants' separate motions and cross motion for summary judgment are each granted, and plaintiff's supplemental complaint and any and all of defendants' cross-claims are hereby dismissed in their entirety.
The foregoing constitutes the decision, order and judgment of this court.
E N T E R,
J. S. C.
Footnotes
Footnote 1:The ensuing recitation of the facts of this matter is derived from a compilation of testimony given at examinations before trial, from the pleadings, and from the administrative and investigative reports of the incident. All contradictions are so noted and plaintiff's version of the facts is accepted as being true unless such acceptance is clearly unreasonable and/or incredible.
Footnote 2:In addition to sponsoring and organizing the parade, WIADCA issued permits to the different vehicles and bands participating in parade, including the Burning Flames.
Footnote 3:Front and middle plywood wheel guards allegedly prevent or obstruct the vehicle's ability to maneuver and to make turns.
Footnote 4:Captain Frank Vega was, at the time, an Operations Lieutenant assigned to the parade main command post. He testified at a deposition that officers assigned to escort duty and to ride with the tractor trailer drivers had no authority with respect to the operation of the vehicles to which they were assigned.
Footnote 5:Plaintiffs' supplemental complaint alleges that defendant Falco Trucking contracted with JRC to furnish a tractor truck, trailer and driver for the 1999 parade.
Footnote 6:Mr. Rosado, a member of the United States armed forces, is apparently serving overseas and was not able to be deposed in this matter.
Footnote 7:According to the record, motorized parade vehicles which were west of Bedford Avenue at 6 p.m. (the official parade closing time) would be allowed to proceed to Flatbush Avenue at Grand Army Plaza. Vehicles east of Bedford Avenue were allegedly allowed to proceed only as far as Bedford Avenue, at which point or at a prior cross street, they would be turned away from the parade route.
Footnote 8:Described by the various witnesses as "stop and go ... a few feet at a time"; "crawling"; and "creeping ... stopping ... creeping".
Footnote 9:Detective Albino also prepared a complaint report of Mr. Bennett's arrest; however the matter of the suspended license was ultimately resolved to the satisfaction of the NYPD, the Kings County District Attorney and the Commissioner of the Department of Motor Vehicles (DMV).
Footnote 10:See Vehicle and Traffic Law (VTL) § 603-a [1], mandating that "[w]henever a motor vehicle accident results in ... death to a person, and such accident is discovered by a police officer, ... the police shall conduct an investigation of such accident ... for the purposes of making a determination of ... the facts and circumstances of the accident; ... the contributing factor or factors; whether ... a [VTL] violation or violations occurred, and if so, the specific [VTL] provisions which were violated and by whom; and, the cause of the accident, where such cause can be determined. The police shall forward a copy of the investigation report to the commissioner ...."
Footnote 11:With respect to the alleged snake, Mr. Ottley stayed at the parade for only a short period and left prior to its conclusion and the accident. At his deposition he claimed, however, that, later that evening, he received one or more telephone calls from people telling him of the alleged snake incident and spoke with Mr. Rosado, who said he saw an unidentified person carrying one or more large snakes; that this caused spectators to "scamper[]"; and that decedent, as a result, fell under the trailer wheels. Mr. Ottley testified that David Edwards stayed at his residence during the Labor Day weekend and told him of the alleged relationship of the snake incident to decedent's accident.
Clarence Edwards, David Edwards, Ms. Bostic and Mr. Bennett all testified that, several hours prior to decedent's accident, they saw one or more individuals carrying a large white or albino snake on or near the Parkway. Clarence Edwards and Ms. Onika also saw someone carrying a large white or albino snake near the Burning Flames trailer just prior to the accident.
According to Clarence Edwards' deposition testimony, he was facing the left or driver's side of the trailer, looking straight out into the crowd of spectators, and observed a large albino snake being carried by two men. The men were behind the tractor cab, near the trailer, and walking in the opposite direction of the parade flow. Immediately prior to the snake's appearance, the crowd had been dancing and walking alongside and keeping pace with the float. Once the snake appeared near the trailer, the crowd began to scream and to scatter and the band stopped playing. The crowd scattered and "stamped[ed]" in all directions and some came closer to and tried to jump onto the trailer. Immediately thereafter, the crowd began to "chatter[]" that someone's foot had been run over.
Ms. Bostic joined the band and entered the float after it had already progressed some distance down the Parkway. Prior to getting onto the float, she saw a person carrying a large snake. Just prior to the incident, she was on the float, facing the crowd of spectators on the left or driver's side. She saw a person in the crowd carrying, dancing and "jumping around" with a large snake approximately 20 to 25 feet from the trailer. Immediately thereafter, she heard a commotion to her right (near the front of the trailer), heard the crowd begin to scream and saw some people trying to run away from the snake. When the crowd scattered and screamed, the person with the snake walked away and Ms. Bostic noted that the crowd parted from his path. Ms. Bostic then looked down and saw decedent under the flatbed trailer. Approximately one minute elapsed between the time she first saw the man with the snake near the float and when she heard screams indicating the accident.
Mr. Bennett testified that, prior to driving onto the parade route, he saw an individual carrying a large snake. He further testified that, immediately after the accident, he heard spectators tell the police that decedent was frightened by a snake in the crowd and that decedent was killed when he stepped into the space between the flatbed trailer and tractor.
Mr. Girard testified that he did not observe a snake near the Burning Flames float. Following the accident, however, and while waiting at the hospital for news regarding decedent, he overheard other parade spectators mentioning that a snake in the crowd may have startled decedent.
Footnote 12:"Although the Federal rule speaks only of the admissibility of investigatory reports containing factual findings, the Supreme Court of the United States has interpreted the rule broadly to permit opinions and conclusions contained in such reports" (Kaiser, 170 Misc 2d at 325, citing Beech Aircraft Corp. v Rainey, 488 US 153 [1988]). "The touchstone for admissibility, the Court reasoned, should not be an arbitrary distinction between 'facts' and 'opinion,' but an analysis of whether the particular portion of the report in question, or the report as a whole, is trustworthy" (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4520:3, p. 246, citing Beech Aircraft, 488 US at 167 n. 11).
Footnote 13:These cases also noted that: (1) factual findings and inferences which reasonably flow therefrom are admissible; (2) opinions may be admissible, if sufficiently supported by the facts, and provided by a qualified declarant; (3) the report may not be used as a vehicle to admit into evidence information which would otherwise be inadmissible; (4) conclusions of law are not admissible; (5) the report must contain sufficient detail to satisfy the court that the factual findings are supported by evidence which is trustworthy, and result from an investigative process which is free of bias; and (6) the trial court has broad discretion in determining issues of trustworthiness and relevance, and must exercise such discretion in deciding whether a report, or portions thereof, should be admitted.
Footnote 14:See fn 11, infra (discussing VTL § 603-a [1]); Public Officers Law § 66-a (providing that NYPD accident investigation reports are public records required to be kept and to be made available to the public); and Fox v City of New York, 28 AD2d 20 (1967).
Footnote 15:The court further notes, with respect to the accident investigation report, that several parts of said report may be independently admissible, including the BAC test results (Smith v State, 191 Misc 2d 553, 556-557 [2002]); diagrams or sketches drawn from the investigating officer's own observations at the scene (Quaglio v Tomaselli, 99 AD2d 487 [1984]; Campbell v Manhattan & Bronx Surface Transit Operating Authority, 81 AD2d 529 [1981]; Heiney v Pattillo, 76 AD2d 855 [1980]); and the skid mark test (Campbell, 81 AD2d at 529; Dugan v Dieber, 32 AD2d 815 [1969]).
Footnote 16:JRC and Falco Trucking are sought to be held liable herein pursuant to VTL § 388 (1) which imputes liability to the owner of a motor vehicle for death or injury to persons or damage to property resulting from the negligent use or operation of such vehicle by any person who uses or operates that vehicle with the owner's express or implied permission (see Leotta v Plessinger, 8 NY2d 449, 461 [1960]; Tabares v Colin Service Systems, Inc., 197 AD2d 571 [2nd Dep't 1993]).
Footnote 17:34 RCNY § 4-04 (d) requires that an operator of a motor vehicle "exercise due care to avoid colliding with any pedestrian". The court does not address the issue of whether, because decedent clearly used the closed roadway as a site for his recreational activities and not as a means of travel, decedent was a "pedestrian" as intended by the statute.
Footnote 18:Construing the evidence in the light most favorable to plaintiff, the record does not support a finding that the presence of the snake existed near the Burning Flames float for a sufficient period of time to allow its correction by any defendant (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]).
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