| Johnson v First Student, Inc. |
| 2008 NY Slip Op 06616 [54 AD3d 492] |
| August 14, 2008 |
| Appellate Division, Third Department |
| Lizette Johnson et al., Appellants, v First Student, Inc., et al.,Respondents. |
—[*1] Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Robert D. Cook of counsel), forrespondents.
Kane, J. Appeal from a judgment of the Supreme Court (Donohue, J.), entered March 16,2007 in Ulster County, upon a verdict rendered in favor of defendants.
Defendant P.A. Kristoferson (hereinafter defendant), who was driving a school bus owned bydefendant First Student, Inc., rear-ended a vehicle driven by plaintiff Lizette Johnson (hereinafterplaintiff). Just prior to the accident, plaintiff, who had been driving in front of defendant, stoppedher vehicle for traffic to pass so that she could make a left-hand turn. Plaintiff and her husband,derivatively, commenced this action to recover for injuries allegedly resulting from this accident.At the end of trial, the jury unanimously found that defendants were not negligent. SupremeCourt denied plaintiffs' oral motion to set aside the verdict. Plaintiffs appeal.
The jury's verdict cannot stand. Where a moving vehicle is involved in a rear-end collisionwith a stopped vehicle, a prima facie case of negligence arises against the operator of the movingvehicle, requiring that driver to provide an adequate, nonnegligent explanation for the collision(see Nichols v Turner, 6 AD3d1009, 1012 [2004]; Rodriguez-Johnson v Hunt, 279 AD2d 781, 781-782 [2001];Countermine v Galka, 189 AD2d 1043, 1044-1045 [1993]). A mechanical failure orsudden and abrupt stop of the vehicle in front can constitute a sufficient explanation to overcomethe inference of negligence (see Rodriguez-Johnson v Hunt, 279 AD2d at 782).[*2]
It is undisputed that plaintiff's vehicle was lawfullystopped when defendants' bus approached from behind and collided with it, establishing a primafacie case of negligence. Defendants did not allege that the brakes failed; defendant testified thatshe inspected the brakes on the bus twice that day and did not notice any problems (seePincus v Cohen, 198 AD2d 405, 406 [1993]). Testimony of plaintiff, her passenger anddefendant negated any claim of an emergency situation or an abrupt stop. These witnesses alltestified that plaintiff stopped and utilized her directional signal a sufficient distance prior to theturn, leaving adequate space and time for defendant to react. Defendant testified that when shecame around a curve in the road, plaintiff's vehicle was 400 to 500 feet ahead of her and did notmove after she first saw it. Defendant further testified that although she applied the brakes, thebus slid or skidded forward, possibly due to the wet roadway. This did not constitute an adequateexplanation so as to rebut the inference of negligence, especially considering her awareness ofthe weather, the road conditions and the stopped vehicle some 400 feet in front of her (seeKosinski v Sayers, 294 AD2d 407, 408 [2002]; Sabbagh v Shalom, 289 AD2d 469,469 [2001]; Downs v Toth, 265 AD2d 925, 925 [1999]; Pincus v Cohen, 198AD2d at 406; Benyarko v Avis Rent A Car Sys., 162 AD2d 572, 573 [1990]; see alsoTesiero v Kiskis, 263 App Div 171, 173-174 [1942], affd 288 NY 639 [1942]).Because the only explanation for the accident involved negligence by defendant, the verdict mustbe set aside.
Although we agree with the dissent's determination that Supreme Court's jury instructions didnot adequately provide the jury with the proper legal standard, we decline to base our decision onthat argument as it was not raised on appeal (see Matter of County of Sullivan [Basile], 43 AD3d 598, 599[2007]). Even under the charge as given, however, the evidence so preponderated in favor ofplaintiffs that the jury's verdict in defendants' favor could not have been reached on any fairinterpretation of that evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746[1995]).
Had plaintiffs moved for a directed verdict, we would reverse and enter a judgment in theirfavor on the issue of liability. By failing to move for a directed verdict on the issue of liability,however, plaintiffs conceded that the question was one for the jury and could not be decided as amatter of law (see Miller v Miller, 68 NY2d 871, 873 [1986]). We are thus relegated todetermining whether the verdict is against the weight of the evidence; finding that it is, we mustremit for a new trial (see Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]).
Mercure, J.P., and Malone Jr., J., concur.
Rose, J. (dissenting). We respectfully dissent because we cannot agree with plaintiffs'argument that the occurrence of a rear-end collision here establishes a prima facie case ofnegligence against defendants, requiring them to provide an adequate, nonnegligent explanationof the accident. While it would have been appropriate for Supreme Court to have given thepattern instruction informing the jury that defendants had the burden to provide such anexplanation (see NY PJI 2:83), the court did not do so and plaintiffs failed to object to itsomission either before or after the jury charge was given. Instead, plaintiffs accepted the court'scharge that plaintiffs had the burden to prove their claims of negligence and that, while the factthat defendants' bus skidded and collided with plaintiffs' car should be considered in determiningwhether defendant P.A. Kristoferson used reasonable care, neither the collision nor the skiddingrequired the jury to [*3]find defendants negligent as a matter oflaw. Even now, plaintiffs do not argue that Supreme Court's charge was improper, butonly that this Court should hold defendants to a burden of proof that was not conveyed to thejury.
"[P]arties to a civil litigation, in the absence of a strong countervailing public policy, mayconsent, formally or by their conduct, to the law to be applied" (Martin v City of Cohoes,37 NY2d 162, 165 [1975]; see Mitchell v New York Hosp., 61 NY2d 208, 214 [1984];Matter of Mallinckrodt Med. v Assessor of Town of Argyle, 292 AD2d 721, 722 [2002]).Here, the parties accepted Supreme Court's instructions as to plaintiffs' burden of proof, andplaintiffs did not object when the court imposed no burden of proof on defendants and gave noinstruction as to the inference of negligence that arises from a rear-end collision (see e.g. Forget v Smith, 39 AD3d1127, 1127 [2007]). Inasmuch as the omitted instruction related to the burden of proof,rather than the standard of care, we are unable to discern any strong countervailing public policyrequiring reversal (cf. Sega v State of New York, 89 AD2d 412, 414 n [1982],affd 60 NY2d 183 [1983]).[FN*]In addition, in light of the instructions that were given by Supreme Court, there is credibleevidence sufficient to support the jury's finding that plaintiffs did not meet their self-imposedburden of proving their claim of negligence. In these circumstances, we should not disturb thecourse charted by the parties at trial and order a new trial based upon a different burden of proofinjected into the case for the first time on appeal (see Cullen v Naples, 31 NY2d 818, 820[1972]; Matter of De Luca v Randall, 285 AD2d 684, 685 [2001]; Simone v City ofNiagara Falls, 281 AD2d 923, 923 [2001]; Guilder v Corinth Constr. Corp., 235AD2d 619, 620 [1997]; Stram v Farrell, 223 AD2d 260, 264 [1996]). Accordingly, wewould affirm Supreme Court's judgment.
Kavanagh, J., concurs.
Ordered that the judgment is reversed, on the facts, and matter remitted to the Supreme Courtfor a new trial, with costs to abide the event.
Footnote *: As for the majority's concernthat this issue was not raised on appeal, plaintiffs did so by arguing that defendants had theburden to explain the rear-end collision. Having done so, we are unwilling to inject a legalstandard that plaintiffs did not seek to apply at trial.