Hill v McGinnes
Annotate this CaseDecided on September 3, 2015
Supreme Court, Monroe County
Irene Hill and WILLIAM HILL, Plaintiffs,
against
Michelle McGinnes, JANET S. CANTY and LARRY DAVIS, JR., Defendants.
2012/05414
Attorney for Plaintiffs:
William P. Smith, Esq.
Brenna Boyce PLLC
31 E. Main Street, Suite 2000
Rochester, New York 14614
Attorney for Defendants-Michelle McGinnes & Janet Canty:
Michael A. Reddy, Esq.
Osborn, Reed & Burke, LLP
45 Exchange Blvd., 4th Floor
Rochester, New York 14614
Thomas A. Stander, J.
The Defendants, Michelle McGinnes [FN1] and Janet S. Canty, submit a motion seeking an order pursuant to CPLR §3212 granting summary judgment and dismissing Plaintiffs, Irene Hill and William Hill, complaint; and for the costs and disbursements of this motion.
The Plaintiffs commenced this action for injuries sustained in a motor vehicle accident on June 3, 2011 on Interstate 77 in West Virginia. Plaintiff was a passenger in a vehicle driven by Defendant, McGinnis (McInnis) and owned by Defendant, Canty. The other Defendant, Larry Davis, is out of the case. Davis was driving the vehicle that swerved into the lane of the car driven by McGinnis (McInnes), striking the front bumper. The Davis and McGinnis (McInnis) cars were headed in the same direction in two separate lanes on a highway, traveling 65 mph, when Davis' vehicle, located in the right hand lane moved into the lane of McGinnes (McInnis), striking her front bumper. McGinness (McInnis) swerved to try to avoid the Davis car which entered her lane. Plaintiff claims that the swerving by McGinnes (McInnis), who was the driver of the vehicle she was riding in, caused her injuries
I. SUMMARY JUDGMENT MOTION
A. Defendants Position The Defendants, McGinnes (McInnis) and Canty, seek summary judgment based on McGinnes (McInnes) not being negligent in operating the vehicle she drove, and that there is no conduct on her part that caused or contributed to the accident. The Plaintiff testified at her deposition that the other vehicle came into contact with the front right side of the vehicle she was riding in. The Plaintiff avers that at impact between the two vehicles the vehicle she was riding in was "[w]holly and complete [sic] in the left lane."
Defendants point out that there are no allegations that Defendant McGinnes (McInnis) was speeding. She was traveling the speed limit of 65 mph. The co-Defendant, Larry Davis, Jr. testified at his deposition that he believed he caused the accident. The Defendants rely on the Vehicle and Traffic Law in support of their position that drivers must remain in one lane, and to change lanes, one must do so after ascertaining that such movement may be completed safely (Vehicle and Traffic Law §1128[a]).
McGinnes (McInnis) testified that she was maintaining her vehicle in her own lane of traffic when the Davis vehicle crossed into her lane of traffic, causing an emergency situation. Defendants argue that due to the actions of Davis, McGinnes (McInnis) was faced with a sudden and unexpected emergency situation, not of her own making and that she acted reasonably and prudently under the circumstances. Defendant McGinnes (McInnis) applied her brakes to attempt to avoid the impact with Davis.
The Defendants sufficiently demonstrate that they are entitled the judgment as a matter of law. The burden shifts to the Plaintiffs to submit sufficient proof to establish a triable question of fact.
B. Plaintiffs Position
Plaintiff argues that "the accident started when Larry Davis, Jr.'s vehicle came into contact more or less gently with the vehicle being driven by Defendant Michelle McGinnes . . . and that her injuries occurred thereafter" (Attorney Affidavit of William P. Smith, Jr., ¶4 [7-20-2015]). Plaintiff claims that the actions of the driver, McGinnes (McInnis), in failing to control the vehicle and violently jerking the vehicle back and forth caused her injuries.
Plaintiff testified at her deposition that when the Davis car impacted, the driver swerved and then swerved back, and that is when Plaintiff felt the impact. Plaintiff avers that the hitting of her right shoulder and head against the passenger side door occurred from the swerve; not from the collision. The Plaintiff also testified that the driver swerved the vehicle off the road onto the left shoulder.
Plaintiffs assert that this testimony of Plaintiff, Irene Hill raises a question of fact as to the negligence of McGinnes (McInnis). Plaintiffs rely on the argument that there can be more than one proximate cause of an accident. Plaintiffs assert that there is a question of fact as to whether the subsequent actions of McGinnes (McInnis) were reasonable. Further, that it is a question of fact for the jury in the event that a Defendant seeks to apply the emergency doctrine.
C. No Question of Fact
The emergency doctrine is defined as:
[W]hen a driver is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the driver to be reasonably so disturbed that he or she must make a speedy decision without weighing alternative courses of conduct, the driver may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the driver has not created the emergency [citations omitted].(Shanahan v Mackowiak, 111 AD3d 1328,1329 [4th Dept. 2013]; see Caristo v Sanzone, 96 NY2d 172,174 [2001]; Patterson v Central New York Regional Transportation Authority, 94 AD3d 1565 [4th Dept. 2012], lv to appeal denied 19 NY3d 815 [2012]).
The emergency doctrine applies as a matter of law when the driver "establishe[s] that she was operating her vehicle in a lawful and prudent manner when [another] vehicle suddenly and without warning crossed into her lane of travel, and there was nothing she could have done to avoid the collision" (Albert v Machols, 129 AD3d 1481,1482 [4th Dept. 2015]; Shanahan at 1429). The facts presented by the testimony of Defendant, McGinnes (McInnis) and the Plaintiff, Irene Hill, demonstrate that there was an emergency situation caused by the Davis vehicle moving into the lane they were traveling in and striking the side front of the vehicle. The emergency doctrine applies under the facts presented.
The Fourth Department has set forth the standard for when summary judgment is appropriate under the emergency doctrine:
Although it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver's] response was reasonable' . . . , we conclude that summary judgment is appropriate here because defendant[] presented [*2]sufficient evidence to establish the reasonableness of [her] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact [citation omitted].(Albert at 1482; see Shanahan at1329; Patterson at 1566; Majid v New York City Transit Authority, 128 AD3d 648,649 [2d Dept. 2015]; Levi v Benyaminova, 128 AD3d 779,780 [2d Dept. 2015]).
A triable issue of fact is not raised by affidavits which are speculative and conclusory regarding whether a driver could have avoided the collision (Johnson v Time Warner Entertainment, 115 AD3d 1295,1296 [4th Dept. 2014]). The Courts have determined that summary judgment is appropriate where
the driver presents sufficient evidence to establish the reasonableness of his or her actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact.(Patterson at 1566). Contentions of the Plaintiff that the driver could have or should have seen the emergency, or applied the brakes less forcefully, or other claims of different reactions to the emergency situation, "are based entirely on speculation and thus are insufficient to raise an issue of fact to defeat the motion" for summary judgment (see Patterson at 1566).
Here the Plaintiff's claim that the reaction of the Defendant, McGinnes (McInnis), to swerve after being struck by Davis' vehicle, traveling 65 mph on a highway, and to brake and come to a stop on the side of the road, was unreasonable is based entirely on speculation. The Plaintiff offers no expert to support its position and even an expert assertion may be found to be based on speculation (see Shanahan.at 1330).
The evidence presented demonstrates that Defendant, McGinnes (McInnis) was faced with an emergency situation and that her actions were reasonable under the emergency situation. The Plaintiffs, Hill, fail to submit any evidence to raise a triable issue of fact. The motion of the Defendants, Michelle McGinnes and Janet S. Canty, for summary judgment and dismissing Plaintiffs, Irene Hill and William Hill, complaint is GRANTED.
The motion seeking costs and disbursements of this motion is GRANTED.
O R D E R
Based upon all the papers submitted in support and in opposition to this motion, upon the above Decision, and after due deliberation, it is hereby
ORDERED that the motion of the Defendants, Michelle McGinnes and Janet S. Canty, for summary judgment against the Plaintiffs, Irene Hill and William Hill, is GRANTED; it is further
ORDERED that the motion of the Defendants, Michelle McGinnes and Janet S. Canty, to dismiss the Complaint of the Plaintiffs, Irene Hill and William Hill, is GRANTED; and it is further
ORDERED that the motion of the Defendants, Michelle McGinnes and Janet S. Canty, for the costs and disbursements of this motion is GRANTED.
Dated: eptember 3, 2015
Rochester, New York
________________________________________
Thomas A. Stander
Supreme Court Justice Footnotes
Footnote 1: The Defendant points out that the Defendants name is "Michelle McInnis", who was incorrectly sued as Michelle McGinnes.
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