| Brown v Muniz |
| 2009 NY Slip Op 03024 [61 AD3d 526] |
| April 21, 2009 |
| Appellate Division, First Department |
| Dwight Brown, an Infant, by His Mother and Natural Guardian,Cynthia Johnson, et al., Appellants, v Minerva G. Muniz et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 10, 2007,which granted defendants' motion for summary judgment dismissing the complaint, affirmed,without costs.
Plaintiff, an infant, was struck by a vehicle driven by defendant driver on a street that has aparking lane on each side and one lane for westbound traffic. Plaintiff testified at his depositionthat he was playing on the sidewalk on the south side of the street when he ran between twoparked cars into the street. He did not look to his right before running into the street and, as hewas running through the middle of the street, he looked to his right and saw defendants' vehicleonly inches away from him. The driver testified at his deposition that, before the accident, twoother children had run from the sidewalk into the street in front of his vehicle and, therefore, hewas traveling approximately five miles per hour when plaintiff "came suddenly from between the[parked] cars." Asked when he saw plaintiff for the first time, the driver answered "[w]hen theaccident happened"; asked to estimate the time that elapsed between his first seeing plaintiff andthe accident, the driver answered "[l]ike a second"; subsequently asked "[d]id you actually see[plaintiff] come out from between the two parked cars," the driver answered "[w]hen I felt theimpact nothing more."
Supreme Court correctly dismissed the action. The deposition testimony of both plaintiff andthe driver establish that plaintiff, without warning and without looking in the direction ofoncoming traffic, darted out between two parked vehicles directly into the path of defendants'vehicle, leaving the driver unable to avoid plaintiff (see e.g. Afghani v Metropolitan Suburban Bus Auth., 45 AD3d511 [2007]; Sheppeard v Murci, 306 AD2d 268 [2003]; Wolf v We Transp.,274 AD2d 514 [2000]; Miller v Sisters of Order of St. Dominic, 262 AD2d 373 [1999],lv denied 94 NY2d 763 [2000]).
In concluding that a triable issue of fact exists as to whether the driver was negligent, thedissent focuses only on an isolated snippet of the driver's testimony. Thus, the dissent writes thatthe driver testified that "he saw plaintiff running out 'seconds' before the accident." At one point[*2]during his deposition, the driver was asked, "[w]hen you say[plaintiff] came out running when did you see him come out running?", to which the driverresponded "[w]hen he was coming out, seconds." This response, even assuming it was the onlytestimony on point and fairly must be taken literally, would not establish anything more than thatthe driver saw plaintiff two seconds before impact (see Miller, supra). In anyevent, it was clarified later when the driver testified that he saw plaintiff (1) "[l]ike a second"before the accident and (2) as the impact between plaintiff and the vehicle occurred. As isevident, we "interpret" and "usurp[ ]" nothing. Rather, we have recounted the relevant portionsof the driver's testimony and, viewing that testimony in its entirety and in context (seeMitchell v Route 21 Assoc., 233 AD2d 485, 486 [1996]; see also Hoverson v HerbertConstr. Co., 283 AD2d 237, 237-238 [2001]), we conclude that defendants' submissionsestablished as a matter of law that the driver did not have time to react to avoid plaintiff. "Anycontention by the injured plaintiff that [the driver] failed to observe what he should haveobserved is merely an attempt 'to ferret out speculative issues to get the case to the jury' "(Brown v City of New York, 237 AD2d 398, 399 [1997], quoting Andre vPomeroy, 35 NY2d 361, 364 [1974]).
The dissent labors to make plaintiff's case for him, suggesting that we can, and should, takejudicial notice of the "fact" that a driver can react to an emergency situation in less than asecond.[FN*]A number of problems, however, plague that suggestion. First, fairness may require that we"afford the parties the opportunity to be heard as to the propriety of taking judicial notice in theparticular instance" (Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]). Here,neither party requested that we take judicial notice of the "fact" that a driver can react to anemergency situation in less than a second, and thus the parties have not had the opportunity toaddress this issue. The resulting prejudice is particularly acute because of the novelty of the issuein this State—the dissent cites only a 1952 Eighth Circuit decision, a 1958 District Courtdecision from Delaware and a 1931 decision of the Supreme Court of Virginia. Second, andrelatedly, the dissent cites no New York case law (and independent research has not disclosedany) indicating that we can take judicial notice of driver reaction time. In fact, New Yorkauthority cuts against the dissent's position (see Murray v Donlan, 77 AD2d 337 [1980],appeal dismissed 52 NY2d 1071 [1981] [court cannot take judicial notice of stoppingdistance of an automobile traveling at certain rate of speed]). At bottom, whether human reactiontime is a subject of which a New York State court may take judicial notice is unclear and, in theabsence of any discussion of this issue by the parties, we decline to notice a particular responsetime.
The dissent's "cf." cite to Ferrer v Harris (55 NY2d 285 [1982])—acase factually distinguishable from this one—is not persuasive. In Ferrer, thedriver of a vehicle struck a young girl who ran into the street. At trial, the driver testified that, ashe was driving 15 to 20 miles per hour, he saw the girl step off the sidewalk and run between twoparked cars and into the street. The driver also testified that he stopped his vehicle several feetaway from the girl but that she ran into the driver's side door of the vehicle (id. at290-291). Plaintiffs, the girl and her guardian, presented evidence that the girl was struck by thefront of the vehicle and medical evidence that the injuries she sustained were not consistent withthe driver's claim that she had run into his door (id. at 291). Plaintiffs claimed, citingNew York City traffic regulations, that, [*3]while the postedspeed limit on the road was 30 miles per hour, the speed at which the driver was traveling (15 to20 miles per hour) was unreasonable because of the presence of children in the area and adouble-parked vehicle that reduced the driver's maneuverability (id.). In light of thesefacts, the Court of Appeals determined that the questions of whether the driver was negligent andwhether he was faced with an emergency situation were for the jury (id. at 292-293). Inthe case before us, however, the uncontradicted evidence is that the driver did not see plaintiffleave the sidewalk and enter the street. According to the driver, plaintiff "came suddenly frombetween the [parked] cars," and plaintiff's testimony is consistent with the driver's account. Thus,unlike the facts in Ferrer, plaintiff darted into the street and the driver had no opportunityto avoid him. Concur—Gonzalez, P.J., Buckley, Catterson and McGuire, JJ.
Acosta, J., dissents in a memorandum as follows: I respectfully dissent because I think this12-year-old plaintiff should not be denied his day in court based, not on what defendant driversaid, but on what the majority, usurping the jury's fact-finding role, interprets the driver to havemeant. The majority does not dispute that the driver testified that he slowed to 5 to 10 miles anhour and stopped in the middle of the street because he saw two children crossing the streetapproximately two car lengths ahead of him. He thereafter proceeded down the street at a speedof five miles an hour with his foot on the brake, while looking to his left for other children whomight be crossing the street, when plaintiff suddenly ran out from between two parked cars onthe left side of the street. The driver further stated that he saw plaintiff running out "seconds"before the accident, although he later stated that he saw plaintiff for "like a second."
Although I agree with the majority that defendants established their prima facie entitlementto summary judgment by the fact that plaintiff darted out between two parked cars, the driver'stestimony raised triable issues of fact as to his own negligence, in particular, whether areasonable person driving five miles an hour with his foot on the brake would be able tocompletely stop his vehicle after observing for "seconds" a pedestrian running across the street(see Hazel v Nika, 40 AD3d430, 431 [2007] ["The issue of comparative negligence is 'almost always . . . aquestion of fact' and 'almost exclusively a jury function" (citation omitted)]).
In what can only be characterized as a "best defense is a good offense" strategy, the majorityaccuses me of making the case for plaintiff. It is the majority, however, that "interprets" theevidence to deny plaintiff his day in court. Whether the driver actually meant that he sawplaintiff for a time interval simply too short for the human body to react is a question for thejury, not this Court. Whatever the driver meant, he should have been able to react and stop hisvehicle in no more than one second. Driver reaction time of no more than a second has beenjudicially noticed, although not in New York (see Standard Oil Co. v Crowl, 198 F2d580, 582 [8th Cir 1952] [applying Missouri law, "in the absence of proof to the contrary thereaction time of a normal person is presumed to be 3/4 of one second"]; Ryans v Blevins,159 F Supp 234, 236 [D Del 1958], affd on other grounds 258 F2d 945 [3d Cir 1958][court takes "judicial notice of the fact that it takes the average driver from 3/4 to 4/5 of a secondto press down upon his brakes after discovering a dangerous situation ahead"]; 29 Am Jur 2d,Evidence § 88 ["Some courts take judicial notice of an average driver reaction time thatfalls within a range of half a second to a full second"]; B. Finberg, Judicial Notice of Drivers'R[*4]eaction Time and of Stopping Distance of Motor VehiclesTraveling at Various Speeds, 84 ALR2d 979, § 2 [reaction time mostly taken to be"three-fourths of a second for the average man, but some cases have considered it to be one-halfof a second, while others have held it to be at least one second"]).
The majority takes issue because neither party asked this Court to take judicial notice ofnormal human reaction time and because there are no New York cases on point. But that iswholly beside the point. This Court has the discretion to take judicial notice of facts (FirstState Ins. Co. v J & S United Amusement Corp., 67 NY2d 1044, 1047 [1986], citing, interalia, Hunter v New York, Ontario & W. R.R. Co., 116 NY 615, 621 [1889] [on appeal,court may take judicial notice of facts "which are a part of the general knowledge of the country,and which are generally known and have been duly authenticated in repositories of facts open toall, and especially so of facts of official, scientific or historical character"]; Matter of Persingv Coughlin, 214 AD2d 145, 149 [1995] [an appellate court may take judicial notice for thefirst time on appeal of facts not brought to the trial court's attention and may do so for thepurpose of reversing the judgment]). I have no doubt that human reaction time is the same in allparts of the country, including Missouri and Delaware.
Murray v Donlan (77 AD2d 337 [1980], appeal dismissed 52 NY2d 1071[1981]), relied on by the majority, is not dispositive of the issue in this case. In Murraythe Court declined to take judicial notice of stopping distances, which are necessarily dependenton many factors. Common knowledge, however, informs that a car traveling at five miles anhour can stop "almost instantly" (see Virginian Ry. Co. v Bacon, 156 Va 337, 347, 157SE 776, 792 [1931]; cf. Ferrer v Harris, 55 NY2d 285, 293 [1982] [an emergency, suchas a child running into the street, does not automatically absolve the driver from liability, ratherthe "standard . . . remains that of a reasonable man under the given circumstances,except that the circumstances have changed. Accordingly, the actor 'may still be found to benegligent if, notwithstanding the emergency, the acts are found to be unreasonable' (Prosser,Torts [4th ed], p 169)"]).
Nor do the four Second Department cases relied on by the majority require summaryjudgment in defendants' favor. In Miller v Sisters of Order of St. Dominic (262 AD2d373 [1999], lv denied 94 NY2d 763 [2000]), the driver was traveling between 20 and 25miles per hour and there is no indication that she had her foot on the brake pedal as the driver inthis case did while traveling merely five miles per hour. The other three cases cited by themajority likewise do not indicate that the driver had his foot on the pedal or how fast the driverwas traveling. Viewing the evidence in the light most favorable to plaintiff, the party opposingsummary judgment, there are triable issues of fact, including whether the driver had no morethan one second to react to this emergency and stop his vehicle. Accordingly, I would reverse.
Footnote *: Our quarrel is not with thedissent's effort to make plaintiff's case for him, but only with the way the dissent endeavors tomake that case.