| Ranaudo v Key |
| 2011 NY Slip Op 03160 [83 AD3d 1315] |
| April 21, 2011 |
| Appellate Division, Third Department |
| Steven Ranaudo et al., Appellants, v Joe C. Key et al.,Respondents. |
—[*1] Osborn, Reed & Burke, L.L.P., Rochester (Thomas C. Burke of counsel), for Joe C. Key andanother, respondents. Taylor & Associates, Albany (Paul J. Catone of counsel), for Harold S. Joy and another,respondents.
Garry, J. Appeal from an order of the Supreme Court (Dowd, J.), entered April 13, 2010 inOtsego County, which, among other things, granted defendants' motions for summary judgmentdismissing the complaint.
At approximately 8:07 p.m. on February 27, 2007, plaintiff Steven Ranaudo (hereinafterplaintiff) was in the passenger seat of a vehicle traveling eastbound on Interstate 88[FN1]in Otsego County when the vehicle—driven by plaintiff's son—encountered twotractor trailers ahead and almost side-by-side occupying both the driving (right) and passing (left)lanes at less than the posted speed limit of 65 miles per hour. The tractor trailer occupying thedriving lane was owned by defendant Hartt Transportation Systems and was being operated bydefendant Harold S. Joy. Defendant Joe C. Key, operating a tractor trailer owned by defendantJ.B. Hunt [*2]Transport, Inc., was occupying the passing lane, infront of the Ranaudo vehicle, attempting to overtake Joy. According to plaintiff, Key's tractortrailer took around six minutes or six miles to pass Joy's vehicle and return to the driving lane.Unbeknownst to the occupants of the Ranaudo vehicle, and approximately two minutes beforeKey returned to the driving lane, Key heard over the CB radio that there was an oncomingvehicle traveling the wrong way (westward) in the eastbound passing lane somewhere on theroadway ahead. Key later testified that he tried to signal to Joy, so that Joy would let him getahead to pass. Joy turned off his cruise control to slow down his vehicle.[FN2]Within seconds of Key's passing of Joy and moving into the driving lane, the oncoming vehicle,driven by Jaime Rudnitsky, struck the rear driver side of Key's trailer, continued westbound andstruck the Ranaudo vehicle head-on, ultimately coming to rest underneath Joy's tractor trailer.Rudnitsky died at the scene.
Plaintiff and his wife, derivatively, commenced this action against Key, Joy and theiremployers, seeking damages for the injuries sustained as a result of the collision.[FN3]Plaintiffs alleged, among other things, that Key and Joy breached their duty of care to them bynot completing or, in the case of Joy, not permitting the pass of another vehicle as quickly aspossible. Following discovery, defendants moved for summary judgment dismissing thecomplaint and plaintiffs cross-moved for partial summary judgment as to liability. SupremeCourt granted defendants' motions. Plaintiffs appeal, and we affirm.
To maintain an action for negligence, it must be shown that the defendant owed a duty ofcare to the plaintiff that the defendant breached and, further, that the alleged negligence was aproximate cause of the plaintiff's injuries (see Kunz v New Netherlands Routes, Inc., 64 AD3d 956, 957[2009]; Kampff v Ulster Sanitation, 280 AD2d 797, 797 [2001]). Motorists generallyhave a duty to operate their vehicles "with reasonable care taking into account the actual andpotential dangers existing from weather, road, traffic and other conditions" (PJI 2:77). This dutyincludes seeing what should be seen and taking ordinary care under the circumstances to avoid anaccident (see Gage v Raffensperger, 234 AD2d 751, 752 [1996]; DeAngelis vKirschner, 171 AD2d 593, 595 [1991]). As relevant herein, motorists are also obligated,when passing another motor vehicle from the left, to "return to an authorized lane of travel assoon as practicable" (Vehicle and Traffic Law § 1124; see Vehicle and Traffic Law§ 1120).
Both Joy and Key testified that they were trained and experienced operators of tractortrailers. Joy testified at his examination before trial that his vehicle was loaded with goods thatevening and he was initially traveling in the driving lane with his CB radio turned off and hiscruise control set at just under the posted speed limit. He noticed Key's tractor trailer when itpulled up next to him on the left attempting to pass him. Joy stated that Key was gaining speed[*3]until they reached a hill when Key's vehicle slowed down, afact that, in Joy's experience, would have most likely occurred because Key was carrying moreweight or had a smaller engine in the tractor. Joy also indicated that it was common practice notto slow down when another vehicle was passing, so as to avoid decelerating to the point ofbecoming a hazard to others in the roadway. In any event, Joy stated that after he noticed lightsfrom the Ranaudo vehicle behind him, he turned on his CB radio and heard another truck driverbehind him advise him to let Key pass so that the Ranaudo vehicle could get by. Joy turned offhis cruise control, Key accelerated past him and pulled right into the driving lane, whereupon acar "came out of nowhere" and struck the Ranaudo vehicle in the passing lane.
Key testified at his examination before trial that he was aware of his responsibility whenusing the passing lane to pass other vehicles "within a timely period" and then return to thedriving lane. He stated that on the date of the accident, his trailer was loaded close to capacitywith goods and he was traveling below the speed limit. He stated that he was in constant CBradio contact with the drivers of two other tractor trailers behind him that were owned by hisemployer and headed to the same destination. Key decided to pass Joy's slower moving tractortrailer. He testified that six minutes was a standard time for such a pass to occur and, given thegrade of the road, it was not unusual that Joy's tractor trailer seemed to speed up at one point.Key stated that, a few minutes into his attempt to pass, he was informed over the CB radio thatthe Ranaudo vehicle was behind him in his blind spot. A few minutes after that, one of the truckdrivers behind him informed him of the warning concerning the vehicle driving the wrong wayand he attempted to get Joy's attention to slow down to let him pass immediately. Key statedthere was no way he could warn other drivers such as plaintiff's son. He testified that he chose togo forward, rather than slow down, because he had no way of knowing whether, if he did so, theRanaudo vehicle would stay behind him or move over to the driving lane, thereby blocking himfrom leaving the passing lane and moving to the right.
Defendants, citing the above facts, strenuously maintain that they breached no duty of care,and Supreme Court found in their favor in that regard. However, it is unnecessary for us toresolve that issue on this record. Assuming, without deciding, that plaintiffs correctly contendthat they raised issues of fact as to whether any duty was breached, we nonetheless find thatdefendants were entitled to summary judgment because the proof fails to reveal that any of thealleged failures of defendants were a proximate cause of the accident. While proximate cause isordinarily a factual question for the jury, where "the evidence conclusively establishes that therewas an intervening act which was so extraordinary or far removed from the defendant's conductas to be unforeseeable," proximate cause may be determined as a matter of law (Decker vForenta LP, 290 AD2d 925, 926 [2002] [internal quotation marks and citation omitted]; see Kemper v Arnow, 18 AD3d939, 941 [2005], lv denied 5 NY3d 708 [2005]; Litts v Best Kingston Gen. Rental, 7 AD3d 949, 951 [2004];Haughton v T & J Elec. Corp., 309 AD2d 1007, 1008 [2003], lv denied 1 NY3d508 [2004]). Here, Rudnitsky's act of driving the wrong way down Interstate 88 was soattenuated from any claimed negligence on the part of defendants that it "constituted anextraordinary intervening act" relieving defendants of any liability (Kemper v Arnow, 18AD3d at 942; see Carson v Dudley,25 AD3d 983, 984 [2006]). Accordingly, defendants' motions for summary judgment wereproperly granted.
The remaining arguments raised by plaintiffs have been examined and found to beunpersuasive. In light of our conclusion that the complaint was properly dismissed, plaintiffs'arguments related to the denial of their cross motion have been rendered academic.[*4]
Spain, J.P., Lahtinen and Egan Jr., JJ., concur. Orderedthat the order is affirmed, with one bill of costs.
Footnote 1: Interstate 88 is a controlledaccess four-lane highway, with eastbound and westbound travel lanes separated by a medianstrip.
Footnote 2: Joy testified that he did not turnon his CB radio until he noticed the lights from the Ranaudo vehicle behind him. He also statedthat he did not see Key gesturing to him and did not hear anything on his CB radio warning aboutthe oncoming vehicle in the wrong lane.
Footnote 3: Plaintiffs' complaint alsooriginally named as a defendant the owner of the vehicle that Rudnitsky was driving. The actionwas subsequently discontinued as to him by stipulation of the parties.