Terry v Lester Coggins Trucking, Inc.

[*1] Terry v Lester Coggins Trucking, Inc. 2008 NY Slip Op 50009(U) [18 Misc 3d 1112(A)] Decided on January 3, 2008 Supreme Court, Rensselaer County Ceresia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2008
Supreme Court, Rensselaer County

Robert Terry, Plaintiff,

against

Lester Coggins Trucking, Inc., Philip Lester Eddings, Michael D. Falkouski, Jr., Susan Falkouski, as Administratrix of the Estate of Michael D. Falkouski, Sr., David M. Fernandes, Margaret M. Buffaline, Paul T. Buffaline, Zewu Chen, and Andrea Mitchell Wilkinson, Defendants.



216765



Hacker & Murphy, LLP

Attorneys For Plaintiff

7 Airport Park Boulevard

P.O. Box 104

Latham, New York 12110-0104

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

Attorneys For Defendant

Andrea Mitchell Wilkinson

677 Broadway

Albany, New York 12207

Thuillez, Ford, Gold, Butler & Young, LLP

Attorneys For Defendants

Lester Coggins Trucking, Inc. And

Philip Lester Eddings

20 Corporate Woods Boulevard

Albany, NY 12211

Horigan, Horigan, Lombardo & Kelly, P.C.

Attorneys For Defendants

Margaret M. Buffaline and

Paul T. Buffaline

49 East Main Street

P.O. Box 520

Amsterdam, New York 12010

Hiscock & Barclay, LLP

Attorneys For Defendant/Third-Party

Plaintiff Zewu Chen

50 Beaver Street

Albany, New York 12207-3820

George B. Ceresia, J.

The above-captioned action arises out of a chain-reaction motor vehicle accident which occurred on the evening of April 3, 2003 in the westbound lanes of Interstate 90 (hereinafter "I-90") at a point where the roadway crosses the Hudson River from Rensselaer County to Albany County, on what is known as the Patroon Island Bridge. The weather was rainy. The temperature was cold. There is evidence that the surface of the Bridge was icy.

The unfortunate series of accidents commenced shortly after a vehicle operated by defendant/third-party plaintiff Zewu Chen (hereinafter "defendant Chen") in the far left lane passed a vehicle operated by defendant Andrea Mitchell Wilkinson in the middle lane, as both approached the Patroon Island Bridge. Defendant Chen allegedly lost control of his vehicle on the Bridge, and drove head-on into a concrete barrier separating the eastbound and westbound lanes of I-90. Defendant Chen's vehicle came to rest blocking both the left and center lanes of traffic. Defendant Wilkinson (who estimated that she [*2]was traveling between forty and fifty miles per hour) commenced to slow her vehicle as soon as she saw defendant Chen lose control of his vehicle, but she was unable to avoid a collision with said vehicle. Defendant David Fernandes was also traveling on I-90 in a westerly direction at that time, in the far left travel lane. He testified at his pre-trial deposition that as he crossed the easterly end of the Bridge he was traveling at the speed limit (fifty-five miles per hour). He tapped his brakes and realized that the Bridge was icy. He observed defendant Chen's vehicle blocking the left and center lanes. He observed defendant Chen in his vehicle looking at him, and that defendant Chen's driver side door was in his direct path. Defendant Fernandes attempted to avoid defendant Chen's vehicle by moving over to the middle lane. He lost control of his vehicle, started "drifting", and struck several water barrels that separated I-90 from the I-787 exit ramp. His vehicle then bounced back off of the water barrels into a vehicle operated by defendant Margaret M. Buffaline. At about the same time third-party defendant Robert Chenette was traveling on I-90 westbound in the right lane, operating a UPS vehicle. He estimated at his pre-trial deposition that as he approached the Bridge he was traveling forty-five to fifty miles per hour. He observed the accident of defendant Fernandes (both impacts), and attempted to slow his vehicle down. He was unable to slow down fast enough to avoid sliding into the vehicle in front of him. The UPS truck came to rest positioned sideways across the I-90/I-787 exit ramp, facing north.

At the same time defendant Philip Lester Eddings was operating a tractor trailer truck (owned by defendant Lester Coggins Trucking, Inc.) in the middle lane of I-90 westbound. He intended to take the exit to I-787. He was traveling at fifty or fifty five miles per hour. As he approached the Bridge he slowed down and moved into the right lane in preparation of exiting I-90. He observed a UPS vehicle, approximately three or four hundred feet away, blocking the exit ramp, with a white vehicle just behind it. Defendant Eddings applied his brakes, after which the tractor trailer began to slide. When the tractor trailer came to rest it was blocking the westbound travel lanes of I-90. Before coming to rest it struck a vehicle operated by non-party William Morgan

While all of the foregoing was occurring, a vehicle operated by defendant Michael Falkouski, in which the plaintiff was a passenger, was in the process of entering the westbound lanes of I-90 near the Patroon Island Bridge. Defendant Falkouski was initially in the far right lane, but changed to the middle lane, and then the far left lane while on the Bridge. He was traveling thirty or forty miles per hour. After entering the left lane he looked up and observed a jack-knifed tractor trailer blocking the roadway approximately ten car lengths up ahead. He tried to stop, slid to the right, struck a vehicle, slid back to the left and struck the tractor trailer head on. Shortly thereafter Mr. Falkouski's vehicle was struck from behind several times.

Defendant Wilkinson has made a motion for summary judgment to dismiss the complaint, as well as all cross-claims and counterclaims. Plaintiff and defendants Lester Coggins Trucking, Inc. and Philip Lester Eddings oppose the motion. Defendants Margaret M. Buffaline and Paul T. Buffaline, by separate motion, also move for summary [*3]judgment. Plaintiff and defendants Chen, Lester Coggins Trucking, Inc. and Philip Lester Eddings oppose the motion.

Turning first to the Wilkinson motion, defendant Wilkinson argues that as she crossed the Patroon Island Bridge on the evening in question she was faced with an emergency situation not of her own making, that her actions were reasonable and prudent under the circumstances, and that her actions were not the proximate cause of plaintiff's injuries.

An emergency situation is considered a sudden and unforeseeable occurrence not of one's own making (see Davis v Pimm, 228 AD2d 885, 886, lv denied 88 NY2d 815). It is well settled that in an emergency, a driver will not be held to the same standard of care that would be applied to a driver in a non-emergency situation (see, Dearden v Tompkins County, 6 AD3d 783, 784-785 [3rd Dept., 2004]; Rivas v. Metropolitan Suburban Bus Auth., 203 AD2d 349, 350 [2d Dept., 1994]; Glick v City of New York, 191 AD2d 677, 678 [2d Dept., 1993]; see also, Benedetto v. City of New York, 166 AD2d 209, 210 [First Dept., 1990]; Pettica v Williams, 223 AD2d 987, 988 [3d Dept., 1996]). However, "[e]ven where an emergency is found to exist, that does not automatically absolve one from liability; a party may still be found negligent if the acts in response to the emergency are found to be unreasonable" (Davis v Pimm, supra). The reasonableness of the party's actions must be judged in accordance with the emergency situation presented (see Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; Malatesta v Hopf, 163 AD2d 651 [3d Dept., 1990], affd 77 NY2d 828; Moore v Bame, 257 AD2d 716, 717 [3d Dept., 1999]). It is well settled that, "except in the most egregious circumstances, [such determination] . . .is normally left to the trier of fact to determine if a particular situation rises to the level of an emergency, and . . . whether defendant should have anticipated and been prepared to deal with the situation confronting him" (Cookingham v Spakowski, 290 AD2d 638, 639 [3d Dept., 2002], quoting Stevenson v Recore, 221 AD2d 834, 834-835; see also Ashley v Martin, 295 AD2d 846, 847-848 [3rd Dept., 2002]; Dumas v Shafer, 4 AD3d 720, 721-722 [3rd Dept., 2004]).

While it appears that defendant Wilkinson was confronted with an emergency situation as she crossed the Patroon Island Bridge, were it necessary to reach the issue, the Court would find that there are triable issues of fact with regard to the reasonableness of her actions in attempting to avoid collision with the Chen vehicle which preclude the grant of summary judgment (see Sossin v Lewis, 9 AD3d 849 [4th Dept., 2004] mod 11 AD3d 1045 [4th Dept., 2004]). For the reasons that follow, however, the Court finds that defendant Wilkinson is entitled to summary judgment.

With respect to the issue of proximate cause as stated in Derdiarian v Felix Contr. Corp. (51 NY2d 308):

"To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury (Nallan v Helmsley-Spear, Inc., supra, at p 520; Restatement, Torts [*4]2d, § 431). Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable (Restatement, Torts 2d, § 435, subd 2). Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence (see Parvi v City of Kingston, 41 NY2d 553, 560; Restatement, Torts 2d, §§ 443, 449; Prosser, Law of Torts, § 44). If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus (see, e.g., Martinez v Lazaroff, 48 NY2d 819, 820; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952, supra; Rivera v City of New York, 11 NY2d 856). Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve." (Derdiarian v Felix Contr. Corp., supra, at 315).

There is no evidence that any other vehicle collided with the Wilkinson vehicle. There is no evidence that any other vehicle observed the Wilkinson vehicle and/or attempted to avoid the Wilkinson vehicle. There is no evidence that Wilkinson's collision with the Chen vehicle was a factor with respect to any of the other collisions at issue in the instant action. The Court finds that plaintiff Wilkinson demonstrated, prima facie, the absence of a causal link between any alleged negligence on her part and the subsequent accidents. Under the circumstances, the Court finds that plaintiff's complaint and all cross-claims should be dismissed as to defendant Wilkinson.

Turning to the motion of defendants Margaret M. Buffaline and Paul T. Buffaline, Margaret Buffaline testified at her pre-trial deposition that at the time of the accident she was on the I-90 exit ramp leading to I-787. She indicated that just before she reached the exit she observed a small vehicle spin sideways. She believed it to be the Chen vehicle. She slowed down, but continued driving. She estimated she was traveling thirty to forty miles per hour, and had no problems controlling her vehicle. She testified that all of a sudden she noticed something come towards the side of her vehicle, saw a yellow barrel fly around, and was hit by another vehicle (operated by defendant Fernandes). Her vehicle came to rest on the I-787 exit ramp, past the yellow barrels.

In opposition to the motion, defendant Chen points out that Margaret Buffaline testified at her pre-trial deposition that shortly before the accident that evening she had attempted to cross the Hudson River from Rensselaer County to Albany County via the Menands Bridge at the south end of the City of Troy. When she reached the Menands Bridge she found that the police had closed it. She assumed that the Bridge was closed by reason of the weather. At that point she decided to cross the river by using Patroon Island Bridge. Apart from the foregoing, it is also pointed out that Margaret Buffaline testified during her pre-trial deposition that she did not apply brakes when she saw the Chen vehicle start to spin, but rather continued driving.

The Court is of the view that defendants Margaret M. Buffaline and Paul T. Buffaline [*5]demonstrated, prima facie, that the sole proximate cause of Margaret Buffaline's accident was the circumstance of the Buffaline vehicle being struck by the Fernandes vehicle. The fact that Margaret Buffaline may have known that the Menands Bridge had been closed due to icy conditions, or that she did not apply her brakes while on the Patroon Island Bridge has not been shown to be of any significance, since she was in complete control of her vehicle up until the moment her vehicle was struck by the Fernandes vehicle. The parties opposing Buffaline's motion fail to demonstrate how, or in what manner, Margaret Buffaline's actions caused her accident with the Fernandes vehicle. In addition, the Court finds that the emergency doctrine (supra) operates to exonerate her of all liability, as a matter of law.[FN1]

The Court concludes that the motion of Margaret M. Buffaline and Paul T. Buffaline must be granted and the complaint and all cross-claims and counterclaims against said defendants should be dismissed.

Accordingly, it is

ORDERED, that the motion of Andrea Mitchell Wilkinson for summary judgment is granted; and it is further

ORDERED, that the complaint, all cross-claims and counterclaims be and hereby are dismissed as against said defendant; and it is further

ORDERED, that the motion of Margaret M. Buffaline and Paul T. Buffaline for summary judgment is granted; and it is further

ORDERED, that the complaint, all cross-claims and counterclaims be and hereby are dismissed as against said defendants

This shall constitute the decision and order of the Court. All papers submitted in connection with the motion of defendant Andrea Mitchell Wilkinson are returned to the attorney for defendant Wilkinson, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry. All papers submitted in connection with the motion of defendants Margaret M. Buffaline and Paul T. Buffaline are returned to the attorney for said defendants, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated: January 3, 2008

Troy, New York

__________S/____________________________ [*6]

George B. Ceresia, Jr.

Supreme Court Justice Footnotes

Footnote 1:The Court is mindful of the argument advanced by the defendants that the Buffaline vehicle was one of at least three vehicles blocking the I-787 exit ramp, as defendant Eddings (the operator of the tractor trailer) came over the Patroon Island Bridge in the right lane, with the intention of taking the I-787 exit. As noted, defendant Eddings testified that upon observing the UPS truck blocking the I-787 exit ramp he applied his brakes, at which point the tractor trailer began to slide out of control. Irrespective of the presence of the Buffaline vehicle on the exit ramp, the Court is of the view that there is no showing that any action taken by Margaret Buffaline was a proximate cause of her accident and/or that she was in any respect negligent.