Shutt v Schwartz

[*1] Shutt v Schwartz 2007 NY Slip Op 52385(U) [18 Misc 3d 1102(A)] Decided on December 13, 2007 Supreme Court, Steuben County Furfure, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2007
Supreme Court, Steuben County

Mary M. Shutt, as Limited Administrator of the Estate of Richard Fred Shutt, Deceased, Plaintiff,

against

Joseph Schwartz and 4G's Truck Renting, Inc., Defendants,



88,190



The Barnes Firm, PC, Rochester

(by Olney H. Clowe, of counsel) for Plaintiff

Hurwitz & Fine, PC, Buffalo

(by Shawn P. Martin, of counsel)

for Defendants/Third-Party Plaintiffs

Sliwa & Lane, Buffalo

(by Michael T. Coutu, of counsel) for Third-Party Defendant

Marianne Furfure, J.

This case comes before the Court on third-party defendant Covered Wagon Train, Inc.'s (CWT) motion for an order dismissing the third-party complaint as barred by collateral estoppel, and for an order granting summary judgment dismissing the first-party and third-party complaints against CWT for lack of proof of negligence. Defendants/third-party plaintiffs Joseph Schwartz (Schwartz) and 4G's Truck Renting Co., Inc. (4G's) oppose CWT's motion to dismiss the third-party complaint. Plaintiff opposed CWT's motion to dismiss the first-party complaint and filed a cross-motion for summary judgment against Schwartz and 4G's on the first-party complaint. Schwartz, 4G's, and CWT opposed plaintiff's cross-motion for summary judgment. Counsel for all parties appeared and argued the motions. The Court reserved decision. [*2]

This action arises from an accident which occurred in the Borough of Bronx, New York during the early morning hours of March 21, 2002. Richard Fred Shutt, plaintiff's decedent (decedent), a tractor-trailer driver in the employ of CWT, was driving on the Cross-Bronx Expressway. Plaintiff alleges that, due to an electrical problem, decedent's tractor-trailer stalled in traffic in the center lane of the Expressway. Decedent got out of the tractor-trailer, walked to the front of the vehicle, and got down on the ground under the truck. While decedent was under the truck a truck owned by 4G's and operated by Schwartz, rear-ended decedent's tractor-trailer, pushing decedent's vehicle forward and onto decedent's chest, thereby causing his death.

As a result of this accident, 4G's filed a property damage claim of $40,055.10, for damages caused to 4G's truck with its insurance carrier, Progressive Casualty Insurance Company (Progressive). Progressive paid the claim and instituted arbitration proceedings against Clarendon National Insurance Company (Clarendon), the insurance carrier for CWT, seeking reimbursement for the property damage claim Progressive paid to it's insured.

Plaintiff, decedent's widow, instituted a civil action for wrongful death against Schwartz and his employer, 4G's, based on Schwartz's negligent operation of his vehicle. Schwartz and 4G's, in turn, instituted a third-party action against CWT seeking contribution and/or indemnification.

COLLATERAL ESTOPPEL

Third-party defendant CWT moves to dismiss the third-party complaint, claiming that the doctrine of collateral estoppel bars Schwartz and 4G's from seeking indemnification and contribution from CWT. CWT contends that the issue of CWT's responsibility for the accident was previously litigated in the property damage arbitration proceeding instituted by Schwartz and 4G's insurance carrier, Progressive. CWT argues that Schwartz and 4G's were in privity with their insurance carrier and are bound by the finding of the arbitrator that CWT was not negligent, and, therefore, not liable for the accident.

The equitable doctrine of collateral estoppel, or issue preclusion, ". . . gives conclusive effect to an administrative agency's quasi-judicial determination when two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal" (Jeffreys v. Griffin, 1 NY3d 34,39 [2003]; Buechel v. Bain, 97 NY2d 295, 304 [2001]; Gilberg v. Barbieri, 53 NY2d 285, 291 [1981]).

The burden of proof is on the proponent of collateral estoppel to demonstrate identity of issue, while the opponent must demonstrate the absence of a full and fair opportunity to litigate (Jeffreys v. Griffin, Id. at page 39). The doctrine of collateral estoppel is a flexible one, not to be rigidly or mechanically applied (Gilberg v. Barbieri, Id. at page 292). In the final analysis, the question is whether relitigation should be permitted in light of fairness to the parties, conservation of judicial resources as well as those of the litigants, and society's interest in consistent and accurate results in the litigation process ( Buechel v. Bain, 97 NY2d 295, 304 [2001]; People v. Roselle, 84 NY2d 350, 357 [1994]; Staatsburg Water Co. v. Staatsburg Fire Dist., 72 NY2d 147, 153 [1988]).

Whether or not a party had a full and fair opportunity to litigate a prior determination cannot be reduced to a formula, but rather involves a practical inquiry into "the realities of litigation" (Schwartz v. Public Adm'r of County of Bronx, 24 NY2d 65, 72 [1969]). Some of the factors which the court should consider in determining whether a party has had his day in court include "the size of the claim, the forum of prior litigation, the use of initiative, the extent of the litigation, the [*3]competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law, and foreseeability of future litigation" (Schwartz v. Public Adm'r of County of Bronx, Id.; Gilberg v. Barbieri, 53 NY2d 285, 292 [1981]). If questions exist whether the party to be bound had a full and fair opportunity to litigate the issues raised, preclusion should be denied to allow the party such an opportunity (Goepel v. City of New York, 23 AD3d 344, 345 [2nd Dept. 2005]).

In this case, CWT's motion to dismiss the third-party complaint on the basis of collateral estoppel must be denied. Although there may have been an identity of the issues in the two proceedings, there is no evidence that Progressive vigorously represented Schwartz or 4G's interest, or that Schwartz and 4G's were in privity with Progressive. In determining whether privity between parties exists, ". . . the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding" (Green v. Santa Fe Industries, Inc., 70 NY2d 244, 253 [1987]); Buechel v. Bain, 97 NY2d 295, 304-305 [2001]).

The monies that Progressive paid to 4G's for the property damage to its truck gave Progressive the right to proceed against any party liable to 4G's for such damage. As a result, it was Progressive, not Schwartz and 4G's, that had control and involvement in the arbitration litigation. Schwartz and 4G's had little or no interest in the property damage arbitration and thus, no direct stake in its outcome (Staatsburg Water Co. v. Staatsburg Fire Dist., 72 NY2d 147 [1988]); Anderson v. Snyder Tank Corp., 44 AD2d 761 [4th Dept. 1974]). There is no evidence that Schwartz and 4G's participated in, or were aware of, the arbitration proceeding, or that they had a full fair opportunity to litigate the issue of CWT's negligence. Progressive had the only financial interest in the arbitration proceeding and the amount it sought to recover "involved trivial stakes" in contrast to plaintiff's wrongful death claim, suggesting that the arbitration proceeding was a less vigorously contested action (Goepel v. City of New York, 23 AD3d 344, 345 [2005]; Anderson v. Snyder Tank Corp., 44 AD2d 761 [4th Dept. 1974). The record from the arbitration hearing reveals that no attorneys or witnesses appeared at the hearing. The insurance companies made their cases to the arbitrator based on written submissions consisting of the original police report, a supplemental police report, a witness statement, scene photographs, estimates of damage and loss, and proof of payment.

The informality of the proceeding coupled with the amount Progressive sought to recover which was relatively insignificant compared to the wrongful death action suggest that the arbitration proceeding was not the forum wherein the issue of CWT's liability was fully and fairly litigated (Staatsburg Water Co. v. Staatsburg Fire Dist., 72 NY2d 147, 153 [1988]; Anderson v. Snyder Tank Corporation, 44 AD2d 761, 762 [4th Dept. 1974]). Therefore, CWT's application to dismiss the third-party complaint based on collateral estoppel is denied.

SUMMARY JUDGMENT DISMISSING FIRST-PARTY COMPLAINT

CWT moves for summary judgment dismissing the first-party complaint based on CWT's claim that decedent's death was caused solely by decedent's superceding act of alighting from the safety of his truck onto an unprotected position on a busy highway. CWT argues that it was this unforeseen event which severed the causal chain necessary to find Schwartz and 4G, and by extension CWT, liable for decedent's death.

As a preliminary matter, plaintiff argues that CWT lacks standing to move for summary judgment dismissing plaintiff's complaint against defendants Schwartz and 4G's because plaintiff did not commence her action against CWT, but only against Schwartz and 4G's. Standing is a threshold determination which, if raised, must be considered at the outset of any litigation to [*4]determine whether a party " . . . should be allowed access to the courts to adjudicate the merits of a particular dispute. . . " (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 769 [1991]; Matter of Dairylea Coop. v. Walkley, 38 NY2d 6, 9 [1975]). A third-party defendant may assert any defenses against the plaintiff which the defendant/third-party plaintiff could have asserted (Jaeger v. Spina, 224 AD2d 951, 952 [4th Dept. 1996]). A third-party defendant has the rights of a party adverse to the other parties in an action (CPLR Section 1008; Muniz v. Church of Our Lady of Mt. Carmel, 238 AD2d 101, 102 [1st Dept. 1997]). Therefore, plaintiff's claim that CWT lacks standing to move for dismissal of the first-party complaint is without merit.

Turning to the merits of CWT's motion for summary judgment, the burden of proof is on the moving party to set forth sufficient evidence to demonstrate the absence of any material issue of fact (JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373 [2005]; Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). If the proponent fails to make this showing, summary judgment must be denied regardless of the adequacy of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). However, once this showing has been made, the burden then shifts to the opponent of the motion to come forward with evidence in admissible form to establish the existence of material issues of fact which require a trial (Gonzalez v. 98 Mag Leasing Corporation, 95 NY2d 124, 129 [2000]; Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). In reviewing a motion for summary judgment, the evidence must be considered in the light most favorable to the opponent (Ruzycki v. Baker, 301 AD2d 48, 50 [4th Dept. 2002]).

In this case, CWT's motion to dismiss the first-party complaint must be denied because CWT has failed to sustain its burden of proving that there are no questions of fact regarding the proximate cause of decedent's death. "Though negligence and proximate cause frequently overlap in the proof and theory which support each of them, they are not the same conceptually. Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint . . ." (Sheehan v. City of New York, 40 NY2d 496, 501 [1976]). In order to establish a prima facie case of proximate cause, a plaintiff must establish that the opposing party's negligence was "a substantial cause of the events which produced the injury" (Carson v. Dudley, 25 AD3d 983 [3rd Dept. 2006] citing Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 [1980]). The precise manner in which the accident occurred need not be foreseeable (Derdiarian v. Felix Contr. Corp. Id).

On the other hand, an intervening act of the plaintiff or of a third-party ". . . will be deemed a superceding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant" (Kush v. City of Buffalo, 59 NY2d 26, 33 [1983]). The question is whether the intervening act is so extraordinarily, not foreseeable or independent or far removed from the defendant's action, that it breaks the causal connection (Derdiarian v. Felix Contr. Corp., Id). This is usually a question of fact for a jury to determine (Carson v. Dudley, 25 AD3d 983 [3rd Dept. 2006]).

CWT argues that it was decedent's decision to get out of the truck on the Cross Bronx Expressway, a known busy and dangerous highway, which resulted in his death. Therefore, it was this unforeseen event which broke the causal connection between the accident and decedent's death. However, if the "intervening act is a natural and foreseeable consequence of a circumstance created by defendant", such act will not break the causal connection between defendant's acts and plaintiff's injury " (Williams v. Tennien, 294 AD2d 841, 842 [4th Dept. 2002]). It cannot be said as a matter of [*5]law that decedent's acts to attempt to repair his vehicle while it was stranded in the middle of the expressway were so unforeseen or extraordinary as to be a superceding cause of his death (accord Williams v. Tennien, 294 AD2d 841 [4th Dept. 2002]; Betancourt v. Manhattan Ford Lincoln Mercury, Inc., 195 AD2d 246 [1st Dept. 1994]; McMorrow v. Trimper, 149 AD2d 971 [4th Dept. 1989], affd. 74 NY2d 830 [1989]). Therefore, CWT's motion to dismiss the first-party complaint on the basis that decedent's conduct was so unforeseeable that it broke the causal chain between any negligence by Schwartz or 4G's and decedent's death is denied.

SUMMARY JUDGMENT DISMISSING THIRD-PARTY COMPLAINT

CWT also moves for summary judgment dismissing the third-party complaint alleging that it was not negligent and there is no causal connection linking any negligent act of CWT to decedent's injuries. CWT also argues that the rear-end collision by defendant Schwartz was a superceding act which caused the accident, and that any negligence by CWT merely provided the occasion for the accident. Third-party plaintiffs argue that there are issues of fact whether the repairs CWT claims to have made were done negligently and whether a failure to repair the malfunction was a proximate cause of the accident which resulted in decedent's death.

CWT presented evidence that, although decedent complained of a mechanical malfunction in his truck prior to driving downstate, the truck was serviced and repaired before decedent started on his road trip. Although CWT has submitted evidence that it did undertake to repair the electrical problem, there was evidence submitted that, after the accident, the truck continued to "cut-out" and required additional repairs. This is enough to raise a question of fact as to whether CWT negligently repaired the vehicle.

Additionally, it cannot be said, as a matter of law, that an accident was not foreseeable, if the electrical problem complained of by decedent was not properly repaired. There is a triable issue of fact as to whether plaintiff's death was a foreseeable consequence of the circumstances allegedly created by CWT (Calandra v. Marnell, 16 AD3d 1125 [4th Dept. 2005]; Williams v. Tennien, 294 AD2d 841 [4th Dept. 2002]; McMorrow v. Trimper, 149 AD2d 971 [4th Dept. 1989], affd. 74 NY2d 830 [1989]). The exact nature of the accident need not be foreseeable (Derdiarian v. Felix Constr Corp, 51 NY2d 308, 315 [1980]). Issues of fact exist concerning whether CWT negligently repaired decedent's truck causing it to break down on the expressway, and if so, whether such negligence was a substantial factor in causing the accident which resulted in decedent's death (Sutton v. Carolei, 244 AD2d 156 [1st Dept. 1997]; Betancourt v. Manhattan Ford Lincoln Mercury, Inc., 195 AD2d 246 [1st Dept. 1994]). Therefore, CWT's motion to dismiss the third-party complaint is denied.

However, CWT is entitled to summary judgment dismissing defendant's claims based on alleged statutory or regulatory violations by CWT. Defendants have come forward with no facts to dispute the affidavit of Richard Forbes that the truck driven by decedent was in compliance with those requirements.

PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

AGAINST FIRST-PARTY DEFENDANTS

Plaintiff moves against Schwartz and 4G's for partial summary judgment on the issue of liability, claiming that Schwartz's negligence was the sole and proximate cause of the collision and decedent's death, as a matter of law. Defendants contend that summary judgment must be denied because there are issues of fact regarding decedent's negligence in causing the accident. Defendants [*6]contend that decedent's actions of driving the truck when he knew it had mechanical problems, and leaving the safety of his cab in the middle of the expressway without utilizing warning devices to advise other motorists of his disabled truck, were intervening acts that were so extraordinary that responsibility for decedent's death cannot, as a matter of law, be attributed to defendants.

As the party moving for summary judgment, the burden of proof is on the plaintiff to set forth sufficient evidence to demonstrate the absence of any material issue of fact (JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373 [2005]; Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). Plaintiff presented proof that decedent's truck was stalled in the middle lane of the Cross Bronx Expressway, and had been for approximately 20 minutes prior to the collision. The road conditions were dry and, although it was 4:30 a.m. and dark out, the road was well lit and visibility was good. An eyewitness testified that defendant Schwartz "came roaring up the right-hand side of expressway, "went flying by (the witness)", and hit decedent's truck in the rear-end. There were no skids marks nor any evidence that Schwartz slowed down or applied his brakes prior to colliding with decedent's truck.

The law requires a driver to maintain a safe distance between his vehicle and the one ahead, and imposes a duty to be aware of traffic conditions, including stopped vehicles (Guzman v. Schiavone Constr. Co., 4 AD3d 150 [1st Dept. 2004]; Johnson v. Phillips, 261 AD2d 269, 271 [1st Dept. 1999]). "Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident' " (Johnson v. Phillips, id). "A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred (Leal v. Wolff, 224 AD2d 392, 393 [2nd Dept. 1996]). If the operator of the moving vehicle cannot provide a non-negligent explanation for colliding with a stopped vehicle, the plaintiff may be awarded summary judgment as a matter of law (Leal v. Wolff, Id.).

In this case, plaintiff established that decedent was stalled in the expressway and had been for 20 minutes before defendant Schwartz rear-ended decedent's truck. This proof is sufficient to establish a prima facie case of negligence on the part of the defendant (Newton v. Perugini, 16 AD3d 1087, 1088 [4th Dept. 2005]). To rebut this prima facie showing of negligence, it was incumbent upon defendant to present evidence of a non-negligent explanation for the collision (Gubala v. Gee, 302 AD2d 911, 912 [4th Dept. 2003]; Ruzycki v. Baker, 301 AD2d 48, 49 [4th Dept. 2002]).

Defendants have failed to provide any explanation for the collision. Schwartz claims that, as a result of the injuries he sustained in the collision, he has no memory from immediately before the accident until a few days later. However, he has presented no proof to controvert plaintiff's claim that decedent's truck had been stalled in the middle lane of the expressway for 20 minutes prior to the collision, other traffic had avoided decedent's truck during that time, the road conditions were dry, and visibility, though dark, was good. Neither did Schwartz offer evidence to explain the absence of skid marks at the scene. Therefore, based on the record presented, plaintiff is entitled to a finding as a matter of law that defendants were negligent.

However, evidence of defendants' negligence is not enough to establish liability. There must also be proof that the negligence was a substantial cause of the event which produced the harm to the plaintiff (Sheehan v. City of New York, 40 NY2d 496, 501 [1976]). Defendants argue that decedent's decision to leave the safety of his truck for the perils of the expressway was an intervening act that severed the causal connection between Schwartz's negligence and decedent's death. As stated previously, the question of whether decedent's conduct was a superceding cause, [*7]or a substantial cause of his death are questions of fact for the jury to decide.

Plaintiff has also moved for summary judgment on the issue of serious injury. No party has offered any opposition nor disputed the allegations made by plaintiff on this issue.

Based upon the above, plaintiff's motion for summary judgment on the issues of defendants' negligence and serious injury is granted. However, plaintiff's motion for summary judgment on the issue of causation and comparative negligence is denied.

Defendants/Third Party Plaintiffs' counsel to submit order.

Dated: December, 2007.

ENTER:

______________________________

Hon. Marianne Furfure

Acting Supreme Court Justice