Gass v Woods

[*1] Gass v Woods 2012 NY Slip Op 51241(U) Decided on July 3, 2012 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2012
Supreme Court, Nassau County

Valerie Gass, Plaintiff,

against

Melissa Woods, CHRISTOPHER ARMSTRONG AND NANCY ARMSTRONG, Defendants.



013319/10



Counsel for the Plaintiff:

Hecht & Hecht

350 Broadway, Suite 210

New York, NY 10013

Counsel for the Armstrong Defendants:

Richard T. Lau & Associates

300 Jericho Quadrangle

Jericho, New York 11753

Counsel for Defendant Woods:

Morris Duffy Alonso & Faley

Two Rector Street, New York, NY 10006

Randy Sue Marber, J.

The Motion (Mot. Seq. 01) by the Defendants, Nancy Armstrong and Christopher Armstrong, seeking an Order of this Court, pursuant to CPLR § 3212 granting them summary judgment dismissing the Plaintiff's complaint and all cross-claims against them, the Cross-motion (Mot. Seq. 02) by the Plaintiff, Valerie Gass, seeking an Order of this Court, pursuant to CPLR § 3212, granting summary judgment in her favor against the Defendants and the Motion (Mot. Seq. 03) by the Defendants, Nancy Armstrong and Christopher Armstrong, seeking an [*2]Order of this Court, pursuant to CPLR § 3025 (b) permitting them to amend their answer to interpose an "emergency doctrine" affirmative defense, are decided as hereinafter provided.

The instant motions arise from an underlying negligence cause of action involving three motor vehicles where one motorist, the Defendant, Christopher Armstrong, parked his vehicle in the roadway while allegedly assisting another motorist whose vehicle apparently struck a tree and consequently, partially overturned. A third motorist, the Defendant, Melissa Woods, with the Plaintiff, Valerie Gass, as a passenger, struck the overturned vehicle and then the Defendant, Nancy Armstrong and Christopher Armstrong's vehicle. The Plaintiff commenced an action against the Defendants alleging negligence in that the Defendant, Christopher Armstrong, illegally parked his vehicle and created a dangerous condition, and that the Defendant, Melissa Woods was negligent in the operation of her vehicle.

On February 28, 2010 at 2:45 a.m., the Defendant, Christopher Armstrong, was operating a motor vehicle, which was owned by his mother, Nancy Armstrong, in the northbound direction of Woodbury Road in Cold Spring Harbor, County of Nassau, when he observed a vehicle partially overturned on the driver's side, blocking part of the southbound lane of the roadway. The vehicle appeared to have been involved in a one-car accident where it struck a tree. The roads were wet and there was snow on the shoulders of the roadway.

The Defendant, Christopher Armstrong, parked his vehicle in the northbound lane and engaged his emergency flashing lights. According to Christopher Armstrong, he went to check on the condition of the driver while his girlfriend and passenger, Sandra Lockovic, called the police. The Defendant, Christopher Armstrong, after checking the driver's pulse, reported that the driver, who was partially ejected from the vehicle, appeared to be dead. He then proceeded to warn oncoming motorists of the obstruction in the highway by using the light on his cell phone as a flasher, and at least two other vehicles approached the scene and were able to pass by.

About ten minutes later, the Defendant, Melissa Woods, operating her vehicle in the southbound lane of Woodbury Road made contact with the overturned vehicle causing it to upright itself. Her vehicle then spun and made contact with the Defendant, Christopher Armstrong's vehicle. The Defendant, Melissa Woods, was arrested at the scene for driving while intoxicated. In March, 2011, she plead guilty to charges related to this incident. The Plaintiff sustained injuries and was transported to a hospital where she was treated and released within the same day.

The Plaintiff, in her Cross-motion, argues that while the Defendant, Christopher Armstrong may have been rendering aid to another motorist, he was obligated to do so safely without causing further danger to others. She further argues that there was ample space on the shoulders of the highway, and there were abutting driveways that were free of snow where he could have parked his vehicle. The Plaintiff avers that the emergency doctrine cannot apply in the instant case as the driver of the overturned vehicle was already dead and there was no ongoing emergency situation. As to the Defendant, Melissa Woods, she was arrested at the scene of the accident and charged with aggravated DWI. The evidence also indicates that the Defendant, Melissa Woods, was driving in excess of the posted speed limit of 20 miles per hour when she made contact with the overturned vehicle and then crossed the double yellow line and made contact with the Defendant, Christopher Armstrong's vehicle. The Plaintiff contends that she was free from fault. [*3]

In support of her Cross-motion, the Plaintiff submits copies of the pleadings, transcripts of her and the Defendant, Christopher Armstrong's deposition testimony, photographs of the accident scene and the damage to the Defendant, Melissa Woods' vehicle, and the expert affidavit of Marvin Spectre, PE-LS.

The Defendant, Melissa Woods, in opposition to the Armstrong Defendants' motion, argues that but not for the Defendant, Christopher Armstrong's vehicle being parked in the middle of the road, the accident would not have occurred. The Defendant, Melissa Woods, also contends that the condition of the roadway was the proximate cause of the accident as it was unlit and winding. In her opposition to the Plaintiff's motion, the Defendant, Melissa Woods, argues that the Plaintiff entered into her vehicle with full knowledge of the Defendant, Melissa Woods intoxicated state, and her poor judgment, having ingested alcohol herself, rendered her contributorily negligent, thereby precluding any recovery against the Defendant, Melissa Woods. In addition to the two referenced deposition transcripts, the Defendant, Melissa Woods, submits her deposition transcript as supporting evidence, and pictures of the accident scene.

The Armstrong Defendants argue that their vehicle merely furnished the occasion for the subject accident, and it was not the proximate cause. They argue that they are also entitled to invoke the emergency doctrine based on the facts and circumstances of the case. In addition to the Defendant, Melissa Woods' deposition transcript and the pleadings, the Armstrong Defendants submit a copy of the police report, statements of witnesses, Nicholas Papile, the Plaintiff, Valerie Gass, as well as Christopher Armstrong's statement, taken by the police at the scene of accident, and pictures of the accident scene at the time of the accident, and of the scene during daylight and on a spring day.

A Court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to summary judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter, its task is to determine whether or not there exists a genuine issue for trial (Miller v. Journal-News, 211 AD2d 626 [2d Dept. 1995]).

The proponent of a motion for summary judgment must establish, prima facie, its entitlement to judgment as a matter of law, and must provide sufficient evidence demonstrating the absence of triable and material factual issues (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Walden Woods Homeowners Assn. v. Friedman, 36 AD3d 691 [2d Dept. 2007]). Failure to do so requires that the motion be denied regardless of the sufficiency of the opposing papers. The burden of proof then shifts to the opposing party to produce admissible evidence demonstrating the existence of triable and material issues of fact on which its claim rests (Zuckerman v. New York, 49 NY2d 557 [1980]).

To hold a defendant liable in common-law negligence, a plaintiff must demonstrate the following: a duty owed by the defendant to the plaintiff; a breach of that duty; and that the breach constituted a proximate cause of the injury (see Ingrassia v. Lividikos, 54 AD3d 721 [2d Dept. 2008]). Generally, the existence of a defendant's duty is a legal question to be determined by the court in the first instance. In making such a determination, courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was reasonably foreseeable (see Lynfatt v. [*4]Escobar, 71 AD3d 743 [2d Dept. 2010]).

After a defendant's duty to the plaintiff has been established, the defendant is required to show that its alleged breach of duty was not a substantial cause of the events which produced the injury (see Cruz v. City of New York, 6 AD3d 644 [2d Dept. 2004]). Proximate cause is ordinarily a factual issue for resolution by a jury and therefore it is only when one conclusion may be drawn from the established facts that the question of legal cause may be decided as a matter of law (see Grant v. Nembhard, 94 AD3d 1397 [3d Dept. 2012]). Further, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes (see Castillo v. Amjack Leasing Corp., 84 AD3d 1298 [2d Dept. 2011]).

The Armstrong Defendants demonstrated their prima facie entitlement to summary judgment by demonstrating that their alleged negligence was not the proximate cause of the accident. The Armstrong Defendants submitted evidence establishing that the Defendant, Melissa Woods, was unable to stop her vehicle and hit the overturned vehicle head on (Exhibit M, Tr. Woods, p. 38, ln. 20- 25). The Plaintiff, in her statement to the police, reported that she knew that the Defendant, Melissa Woods, was going to strike the overturned vehicle as she could not stop her car (Exhibit J, Gass' statement). Further, the pictures and evidence clearly show that the overturned vehicle was on its side until the Defendant, Melissa Woods, struck it and caused it to turn right side up (Exhibit J, Papile's statement, Exhibit K). The Defendant, Melissa Woods, herself stated she turned her vehicle slightly to the left, indicating no attempt to maneuver to avoid the doomed driver's vehicle (Exhibit M, Tr. Woods, p. 34, ln. 2- 19). It is also undisputed that the Defendant, Melissa Woods, was arrested at the scene for driving while intoxicated and/or in an impaired condition.

The Armstrong Defendants also rely on the emergency doctrine in defense of the undisputed fact that their car was illegally parked. The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.

The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances (see Bello v. Transit Authority of New York City, 12 AD3d 58 [2d Dept. 2004]).

The doctrine has been held to apply, however, where a potential rescuer reasonably believes that another is in peril. While more than a suspicion of danger to another person is necessary, such a determination is made on the facts and circumstances of each case, and the reasonableness of that decision is generally a question for the trier of fact (see Gifford v. Haller, 273 AD2d 751 [3d Dept. 2000]). Here, finding a partially overturned vehicle partially blocking the roadway and finding a gravely injured driver, constituted an unexpected occurrence. According to the statement of Nicholas Papile, "..his [the victim's] head was sticking out of the car laying on the street. His face was a deep purple color and there was blood all around his [*5]head..." (Notice of Motion, Exhibit J). The victim may have been deceased but it does not follow that the emergency ceased to exist particularly as emergency vehicles were not present at the scene and the vehicle was still overturned and partially blocking the road.

Although, the issue as to the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact, they may in appropriate circumstances be determined as a matter of law (see Huggins v. Figueroa, 305 AD2d 460 [2d Dept. 2003]) Here, the facts and circumstances of the case indicate that Christopher Armstrong's actions were reasonable as a matter of law.

The Defendant, Melissa Woods, claimed that there was "minimal snow" on the shoulders of the highway and opined that Christopher Armstrong's girlfriend could have moved his vehicle. However, the Defendant, Melissa Woods, testified at her Examination Before Trial, in response to whether Woodbury Road has a paved shoulder in the area where the accident occurred, "...I don't know because it was [snow banked]. There was no room in the area ...It was all covered in snow..."(see Notice of Motion, Exhibit M, p. 79, ln. 2- 4). This belies her claim that there was ample room on the shoulder for Christopher Armstrong to move his car. Additionally, Nicholas Papile, in his statement, indicated that he pulled up next to a "guy", who was "upset" and who informed them that he already called the police. According to Christopher Armstrong, another vehicle was able to pull around his, who had engaged his emergency flashers. The foregoing supports that under the facts and circumstances, Christopher Armstrong's actions were reasonable.

In opposition, the Plaintiff relies on Ferrer v. Harris, 55 NY2d 285 (1982), and Commisso v. Meeker, 8 NY2d 109 (1960). The Court, however, finds the facts of these cases to be distinguishable from the case at bar. The rationale of the court in Ferrer, where a child was struck by that defendant's vehicle, is set forth accordingly: "...It also takes no stretch of the imagination to appreciate that, but for the van's unlawful double-parking, the [defendant's] car would not have had to travel as close to the automobiles parked on the east side of the street, thus affording its operator an opportunity for a more wide-angled, more distant and earlier view of the child. More directly, absent the van, the westerly traveling lane would have been an unblocked avenue into which [defendant] might have maneuvered to avoid the accident. In short, to say the least, the connection between the disobedience of the traffic regulation and the happening of the accident was logical and immediate enough to have permitted the jury to find that [the owner of the van's] negligence was a substantial proximate cause of the event which produced the injury..." Ferrer v. Harris, 55 NY2d 285 [1982].

It is noted that in the Plaintiff's Cross-motion and opposition, she quotes the foregoing only in part, omitting the distinguishing facts where the vehicle was forced to travel so close to parked vehicles because the illegally parked vehicle on the other side prevented the driver from maneuvering to avoid hitting the child. Here, the evidence indicates that Melissa Woods' car directly hit the overturned vehicle and such impact was hard enough for her to ricochet and strike Christopher Armstrong's vehicle. Unlike the foregoing facts, there was enough room for Melissa Woods' vehicle to pass, as other vehicles managed to pass between the overturned vehicle and Christopher Armstrong's vehicle without incident. [*6]

The facts in the Meeker matter also relied upon by the Plaintiff are that the plaintiff in Meeker, a passenger in a car operated by that defendant, collided with a vehicle from the opposite direction. He saw a patrol car partially obstructing his lane of traffic and turned his vehicle to avoid it and the vehicle traveling in the opposite direction was attempting to pass a motorist and the cars met and collided. There was heavy traffic on the road on which the patrol car was parked and there was available shoulder space on which he could have parked and issued his summons to his apprehended motorist. Here, the accident, as already stated herein, did not occur because the Defendant, Melissa Woods, was trying to avoid Christopher Armstrong's vehicle.

In further support of her opposition, the Plaintiff submitted the affidavit of an engineer who reconstructed the accident and concluded that the improper parking of Christopher Armstrong's vehicle caused the accident. This Court, however, finds this conclusion to be speculative and conclusory, and it is belied by the collective testimony of Melissa Woods, Valerie Gass, and Christopher Armstrong, as well as Nicholas Papile's statement to the police. Christopher Armstrong, Melissa Woods and Valerie Gass all testified in their Examinations Before Trial that Melissa Woods struck the overturned vehicle head on, which had nothing to do with how Christopher Armstrong parked his vehicle.

Moreover, the expert only reviewed photographic evidence but did not inspect Melissa Woods' vehicle nor did he visit the scene of the accident. He completely disregarded the deposition testimony of the parties. As such, this evidence fails to raise a triable issue of fact (see Rodrigues v. Village of Ossining, 76 AD3d 962 [2d Dept. 2010]).

As to Melissa Woods' opposition, it is noted that she contends that it was the condition of the roadway that was the proximate cause of the accident. Although there can be more than one proximate cause of an accident, she fails to raise a triable issue of fact that the improper parking of Christopher Armstrong's vehicle was one of the causes.

The Plaintiff and the Defendant, Melissa Woods, also argue that because Christopher Armstrong parked his vehicle illegally, in violation of Vehicle and Traffic laws, he is liable under the theory of negligence per se. Negligence per se is not liability per se, however, because the protected class member still must establish that the statutory violation was the proximate cause of the occurrence (see Dance v. Town of Southampton, 95 AD2d 442 [2d Dept. 1983], citing Martin v. Herzog, supra; Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn. L. Rev. 105, 111).

As already stated herein, Christopher Armstrong's conduct was not the proximate cause of the accident and therefore, this argument is unavailing.

The Court will now address the Armstrong Defendants' motion to amend their answer to include the affirmative defense of emergency doctrine. The Defendant, Melissa Woods, and the Plaintiff contend that, having failed to plead the emergency doctrine as an affirmative defense, the Armstrong Defendants are precluded from relying on it. CPLR § 3018 (b) provides that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading."

Applying that rule, the question whether the emergency doctrine must be pleaded as an affirmative defense necessarily turns on the particular circumstances of each case. Where the facts relating to the existence of an emergency are presumptively known only to the party seeking to invoke the doctrine, it must be pleaded as an affirmative defense, lest the adverse party be [*7]taken by surprise. Where the facts relating to the existence of the emergency are known to the adverse party and would not raise new issues of fact not appearing on the face of the prior pleadings, the party seeking to rely on the emergency doctrine would not have to raise it as an affirmative defense (see CPLR § 3018 [b]).

Here, all of the facts were well within the Defendant, Melissa Woods' and the Plaintiff, Valerie Gass' knowledge. Thus, there was no unfair surprise arising from the Armstrong Defendants' failure to assert the emergency doctrine as an affirmative defense in their answer. Moreover, inasmuch as the parties were given ample opportunity in opposition to the Defendants' summary judgment motion to challenge the application of the emergency doctrine, both procedurally and on the merits, the Court has determined that the Armstrong Defendants' motion to amend their answer should be GRANTED.

The Court in addressing the Plaintiff's Cross-motion, notes, that if a person knows he is in place of danger, it is his duty to exercise some care for his safety and if he takes no care whatsoever, he is then guilty of contributory negligence (see Pearson v. City of New York, 142 N.Y.S.2d 114 [NY Sup Ct. 1955]). In Kinnie v. Town of Morristown, 184 A.D. 408 (3d Dept. 1918), the Court held that knowledge of the intoxication of the driver as to deprive him of reasonable control is an indispensable condition to a finding of contributory negligence which will bar recovery.

It is the knowledge possessed by the passenger of the incompetence of the driver that is crucial in such situations and an occupant is not guilty of contributory negligence in failing to take such steps to protect himself from harm where he has no knowledge, and is not chargeable with knowledge, of the driver's incompetency, or where a reasonably prudent person would not have done so in the same or similar circumstances (see Burnell v. La Fountain, 6 AD2d 586 [3d Dept. 1958]).

The Plaintiff, Valerie Gass' statement to the police is set forth below in relevant part:

"...Earlier tonight I went to Finny [sic] Bar in Huntington with a friend Melissa Woods...We were first at a bar called the Nutty Professor in Bayshore....Melissa and I had a few drinks...While at Finnly's [sic] Melissa and I had a few more drinks. I drank vodka and cranberry and Melissa drinks Coorslight [sic]. We were dancing and we stayed until 2:40 am... We were only driving a few minutes [when Woods made impact with the overturned vehicle]..."

Based on the Plaintiff, Valerie Gass' statement, the Defendant, Melissa Woods, and the Plaintiff stayed at the first bar from about 8:30 to 10:30 and then arrived at the second bar at 11:000 and stayed until about 2:30 am. (Exhibit J, Notice of Motion). Further, the Defendant, Melissa Woods, testified that the Plaintiff offered to drive and asked if she was okay to drive (Exhibit L, Tr. M. Woods, p. 20, ln. 12 -15). The Plaintiff, in her testimony at her Examination Before Trial, testified that she inquired as to whether the Defendant, Melissa Woods, was okay to drive (Notice of Cross Motion, Exhibit B., Gass tr. p. 31 ln. 18-21). In light of the foregoing evidence, the Plaintiff's Cross-motion cannot be granted as there are triable issues of fact regarding her knowledge of the Defendant, Melissa Woods' condition before she entered her vehicle and her failure to use due care under the circumstances, particularly since Christopher Armstrong testified that he smelled alcohol in Melissa Woods vehicle when he approached the Plaintiff and Melissa Woods after the accident, and Melissa Woods was arrested for driving while intoxicated, at the scene. [*8]

Accordingly, it is hereby

ORDERED, that the motion (Mot. Seq. 03) by the Defendants, Nancy Armstrong and Christopher Armstrong, seeking an Order of this Court, pursuant to CPLR § 3025 (b) permitting them to amend their answer to interpose an "emergency doctrine" affirmative defense is GRANTED; and it is further

ORDERED, that the motion (Mot. Seq. 01) by the Defendants, Nancy Armstrong and Christopher Armstrong, seeking an Order of this Court, pursuant to CPLR § 3212 granting them summary judgment dismissing the Plaintiff's complaint and all cross-claims against them is GRANTED; and it is further

ORDERED, that the Cross-motion (Mot. Seq. 02) by the Plaintiff, Valerie Gass, seeking an order pursuant to CPLR § 3212, granting summary judgment in her favor against the Defendants, is DENIED.

This decision constitutes the order of the Court.

DATED:Mineola, New York

July 3, 2012

________________________________

Hon. Randy Sue Marber, J.S.C.