| Cahoon v Frechette |
| 2011 NY Slip Op 05926 [86 AD3d 774] |
| July 14, 2011 |
| Appellate Division, Third Department |
| Neil W. Cahoon, Appellant, et al., Plaintiff, v BlakeFrechette, as Administrator of the Estate of Stacey L. Frechette, Deceased, Respondent. (ActionNo. 1.) Blake Frechette, Individually and as Administrator of the Estate of Stacey L. Frechette,Deceased, Respondent, v Neil W. Cahoon, Appellant, et al., Defendant. (Action No.2.) |
—[*1] Fischer, Bessette, Muldowney & Hunter, L.L.P., Malone (Richard F. Hunter of counsel), forrespondent in action No. 1. Conway & Kirby, L.L.P., Latham (Elizabeth A. Graziane of counsel), for respondent inaction No. 2.
McCarthy, J. Appeal from an order of the Supreme Court (McGill, J.), entered June 15, 2010in Clinton County, which denied a motion by Neil W. Cahoon for summary judgment dismissingdefendant's counterclaim against him in action No. 1 and the complaint against him in action No.2.
This action arises out of a February 2007 two-vehicle accident that occurred on State Route 9in the Town of Beekmantown, Clinton County. Stacey L. Frechette (hereinafter decedent) lostcontrol of the car she was driving and crossed into the lane of oncoming traffic where her carstruck a pickup truck driven by Neil W. Cahoon and owned by his wife, who was also hispassenger. Thereafter, Cahoon and his wife commenced action No. 1 against Blake Frechette(hereinafter Frechette) as administrator of decedent's estate. Frechette answered and asserted acounterclaim seeking contribution or indemnification from Cahoon and, later, commenced actionNo. 2 asserting wrongful death and negligence causes of action against Cahoon and his wife.Cahoon then moved for summary judgment dismissing Frechette's counterclaim in action No. 1and the complaint in action No. 2. Supreme Court denied the motion. Cahoon now appeals.
Because the record raises triable, material questions of fact regarding the application of theemergency doctrine to the accident at issue, we affirm. The emergency doctrine relieves a driverfrom liability if he or she was faced with an emergency situation not of his or her own makingand responded in a manner that was "reasonable and prudent in the emergency context"(Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; accord Caristo vSanzone, 96 NY2d 172, 174 [2001]; Cancellaro v Shults, 68 AD3d 1234, 1236 [2009], lv denied14 NY3d 706 [2010]). "Whether a driver's actions in an emergency situation were reasonable isordinarily a question of fact" (Cancellaro v Shults, 68 AD3d at 1236). To be grantedsummary judgment based on the emergency doctrine, a driver must establish as a matter of lawthat he or she did not contribute to the creation of the emergency situation, and that his or herreaction was reasonable under the circumstances such that he or she could not have doneanything to avoid the collision (seeQuinones v Community Action Commn. to Help the Economy, Inc., 46 AD3d 1326,1326 [2007]). Viewing the evidence in the light most favorable to Frechette and giving him thebenefit of every favorable inference (seeKarl v Terbush, 63 AD3d 1359, 1360 [2009]), Supreme Court properly denied Cahoon'smotion for summary judgment due to the existence of triable factual issues.
The road conditions and Cahoon's speed under these wintery conditions are relevant towhether he may have contributed to the emergency situation and whether his response wasreasonable. At his deposition, Cahoon testified that, on the morning of the accident, the wind wasblowing snow around and causing drifts in the road, in some spots the drifting snow was only inone lane but in other spots it was across both lanes, when he saw the first drift he slowed down,and the highest speed he reached that day "was a little over 40" miles per hour. He testified thatat the crest of the hill when he first saw decedent's vehicle, he was traveling at 40 miles per hour.Cahoon's wife testified that they were traveling at a slow rate of speed because there were "a lotof snow drifts" on the roadway. When asked why he was driving approximately 40 miles perhour when the posted speed was 55 miles per hour, Cahoon responded, "Because of [*2]typical winter driving" and "the road conditions," meaning thedrifting snow. Contrary to his testimony, however, his vehicle's sensing and diagnostics module(hereinafter SDM) disclosed that, five seconds prior to the collision, Cahoon's vehicle wastraveling at the speed of 52 miles per hour.[FN1]This evidence created an inference favorable to Frechette and raised a factual question as towhether Cahoon was driving too fast for the weather conditions, especially considering his ownopinion that driving slowly was required due to the road conditions.[FN2]
The record also raises questions about the reasonableness of Cahoon's response to theemergency situation that confronted him when decedent's vehicle crossed into his lane. Cahoonasserts that he had only three seconds to respond, which was an insufficient time to react. Whilethree seconds may not be a sufficient time to take evasive action (see Lucksinger v M.T.Unloading Servs., 280 AD2d 741, 742 [2001]), Cahoon was left with a short time periodpartially due to his rate of speed. The SDM data shows that Cahoon was traveling 52 miles perhour and slowed to 50 miles per hour one second prior to the collision. Had he been driving 40miles per hour as he testified, he would have had more time to stop or slow his vehicle afterobserving decedent's vehicle and the collision would not have been as violent. If a jurydetermines that Cahoon's speed was unreasonable under the existing weather and roadconditions, the jury could also conclude that Cahoon's own unreasonable speed was whatdeprived him of sufficient time to avoid the collision, thereby preventing him from escapingliability under the emergency doctrine (compare Burnell v Huneau, 1 AD3d 758, 761 [2003]).
Aside from the speed of Cahoon's vehicle, there is also a question regarding the distanceCahoon had to stop or slow his vehicle. He testified that he first saw decedent's vehicle when itwas only 100 feet away from him. The police accident report lists 180 feet as the measurementfrom the crest of the hill to the spot where the accident occurred. Considering that Cahoon's anddecedent's vehicles were traveling toward each other, decedent's vehicle must have been fartherthan 180 feet from the crest of the hill when Cahoon first saw her. The distance between the twovehicles when Cahoon first saw decedent's vehicle—and thus when he first saw her vehiclefishtailing—is unclear. This factual issue is relevant to the reasonableness of Cahoon'sreaction [*3]and whether he had sufficient time and distance toavoid the collision (see Quiles v Greene, 291 AD2d 345, 346 [2002]).
When asked what evasive action he took to avoid an accident, Cahoon testified that heslowed his vehicle and "could have" turned his vehicle to the right. Upon further questioning, hestated that he "might have pulled to the right a little bit," although he had no specific recollectionof doing so. He also testified that he applied his brakes "[v]ery softly." The SDM data revealedthat the brake switch on Cahoon's vehicle did not activate until two seconds before the collision.Frechette's expert stated that although the brake switch was activated, the "vehicle was notslowing, indicating no substantial brake application by Cahoon."[FN3]
The police accident report concluded that Cahoon "attempted to avoid the impact by steeringto the right and braking prior to impact," and that decedent's speed was the primary cause of theaccident. These conclusions, however, were based on incomplete or questionable information.Cahoon's vehicle came to rest off the right shoulder of the road—facing slightly to theleft—but it was forced in that direction by the collision. Perhaps due to snow on theroadway, there were no gouges, skid marks or other indications that the police could use toindependently determine the speed of either vehicle. Cahoon and his wife gave statements to thepolice, but Cahoon inaccurately reported his speed as 40 miles per hour. It is unclear how thepolice concluded that Cahoon steered to the right. Cahoon himself was unsure and onlyspeculated that he "could have" or "might have" done so. Thus, we cannot rely on the conclusionsin the police accident report when considering this motion for summary judgment.
Because there are questions of fact regarding whether Cahoon was traveling at a speed thatwas unsafe due to the weather and road conditions, whether his speed contributed to the creationof the emergency situation and whether his response was "reasonable and prudent in theemergency context" (Rivera v New York City Tr. Auth., 77 NY2d at 327), SupremeCourt properly denied Cahoon's motion for summary judgment (see Quinones v CommunityAction Commn. to Help the Economy, Inc., 46 AD3d at 1326-1327; Dumas v Shafer, 4 AD3d 720, 722[2004]; see also Rhodes v United ParcelServ., 33 AD3d 455 [2006]). A jury should resolve these factual issues to determinewhether the emergency doctrine absolves Cahoon of liability for the collision.
Peters, J.P. and Malone Jr., J., concur.
Spain, J. (dissenting). By failing to distinguish between a triable, material question of factand immaterial factual discrepancies, the majority today potentially imposes liability on theoperator of a motor [*4]vehicle who clearly did not cause orcontribute to this terrible accident. Accordingly, we dissent.
The factual scenario presented, that of a cross-over collision, is a classic emergency situationto which the emergency doctrine has been consistently applied (see e.g. Ferebee v Amaya, 83 AD3d997, 997 [2011]; Cancellaro vShults, 68 AD3d 1234, 1236 [2009], lv denied 14 NY3d 706 [2010]; Mandel v Benn, 67 AD3d 746,747 [2009]; Palma v Garcia, 52AD3d 795, 796 [2008]; Burnell vHuneau, 1 AD3d 758, 760 [2003]). It is undisputed that Neil W. Cahoon's pickup truckdid not slip on winter road conditions nor did he lose control of the vehicle. It is also undisputedthat he was driving under the posted speed limit and that, at most, three seconds elapsed from thetime that Cahoon first crested the hill, and that he had less than two seconds to react from thepoint when decedent's vehicle swerved into his lane. It is settled law that a driver is not requiredto anticipate that an oncoming car will cross into his or her lane (see Cancellaro v Shults,68 AD3d at 1237; Burnell v Huneau, 1 AD3d at 760; Lamey v County ofCortland, 285 AD2d 885, 886 [2001]; Hanover Ins. Co. v Washburn, 219 AD2d 773,774 [1995]), and that "[s]uch short periods of time are insufficient for a [driver] to take anysignificant evasive action" (Lucksinger v M.T. Unloading Servs., 280 AD2d 741, 742[2001]). Hence, Cahoon should have been awarded summary judgment (see Davis vPimm, 228 AD2d 885, 886 [1996], lv denied 88 NY2d 815 [1996]).
Nevertheless, the majority focuses on discrepancies between Cahoon's memory of certaindetails of the accident and data recorded by his truck's "black box" in reaching to find an issue offact to defeat the motion for summary judgment. Regardless of whether Cahoon was traveling atthe speed he estimated, 40 miles per hour, or that recorded by the black box at 52 miles per hour,he was traveling below the posted speed limit. Contrary to the majority's speculations, there is noevidence that either speed was unsafe for the conditions that day. Cahoon and his wife admittedthat, before they came on the scene, there was some snow blowing onto the road, but mostly inthe opposite lane. There is no evidence that Cahoon hit drifting snow or that other vehiclestraveling within the speed limit in the same direction as Cahoon that morning were strugglingwith poor road conditions. That Cahoon may have been able to stop had he been going slowerwhen decedent's vehicle suddenly veered into his lane is not enough to create an issue of fact thatcould impose liability. Indeed, any automobile accident might be prevented if someone had beengoing slower; the pertinent question is whether the allegedly negligent driver is traveling at anunsafe speed and, here, there is simply no evidence to support the conclusion that Cahoon wasoperating his vehicle at an unreasonable speed.
The tragic outcome of this accident should not impact our analysis; suggestions that Cahooncould have done something differently to avoid the accident—i.e., stopping immediatelyupon sighting the other car fishtailing, braking harder or swerving earlier—are preciselythe types of anticipation not required of a driver, and rely on speculation we should not engage inwhen assessing the reasonableness of a driver's split second reaction to an emergency (seeCancellaro v Shults, 68 AD3d at 1237; Dearden v Tompkins County, 6 AD3d 783, 784 [2004]; Burnellv Huneau, 1 AD3d at 761; Lamey v County of Cortland, 285 AD2d at 886). Wewould reverse, and grant summary judgment dismissing the counterclaim against Cahoon inaction No. 1 and the complaint against him in action No. 2.
Lahtinen, J., concurs. Ordered that the order is affirmed, with one bill of costs.
Footnote 1: No party has challenged eitherthe reliability of the SDM or the accuracy of the data obtained from it.
Footnote 2: While the dissent correctly notesthat Cahoon was traveling below the posted speed limit, weather and road conditions cannecessitate a much slower rate of travel. The dissent states that there is no evidence that either 40miles per hour or 52 miles per hour was unsafe for the conditions on the date of the accident. Wedo not dispute the lack of evidence that 40 miles per hour would have been an unsafe speed.Contrary to his testimony, however, Cahoon was not traveling at that speed. Yet Cahoon and hiswife testified that a speed of approximately 40 miles per hour was appropriate due to theconditions. Thus, their own testimony—when viewing the evidence in a light mostfavorable to Frechette—constitutes evidence that 52 miles per hour was possibly an unsafespeed for them to be traveling that day, creating a triable, material issue of fact.
Footnote 3: Contrary to the dissent'ssuggestion, we are not speculating as to what Cahoon could have done to avoid the accident. Partof his testimony indicated that he himself was unsure of how he reacted. On this motion forsummary judgment, we are merely noting that factual questions exist as to how Cahoon reactedwhen faced with an emergency situation and whether that reaction was reasonable—aquestion of fact traditionally decided by a jury (see Cancellaro v Shults, 68 AD3d at1236).