| Bailey v County of Tioga |
| 2010 NY Slip Op 07651 [77 AD3d 1251] |
| October 28, 2010 |
| Appellate Division, Third Department |
| Michelle R. Bailey et al., Respondents, v County of Tioga et al.,Appellants. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (David F. McCarthy of counsel), forDaniel C. Nickerson, appellant. Ziff Law Firm, L.L.P., Elmira (Adam M. Gee of counsel), for respondents.
Rose, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered June 25, 2009 inTioga County, which, among other things, denied defendants' motions for summary judgmentdismissing the complaint.
Plaintiff Michelle R. Bailey (hereinafter plaintiff) was traveling northbound on County Route5 (also known as Crumtown Road) in the Town of Spencer, Tioga County on a clear, sunny dayin June when she crested a hill and collided with a vehicle owned and operated by defendantDaniel C. Nickerson. Nickerson had been traveling southbound on Crumtown Road and wasattempting to execute a left-hand turn onto Lang Road, which intersects with Crumtown Roadjust to the north of the crest of the hill on Crumtown Road. Although the speed limit onCrumtown Road is 55 miles per hour, some distance south of the intersection with Lang Roadthere is a sign advising a speed of 35 miles per hour for northbound drivers and warning of theupcoming intersection, but not that it is hidden by the crest of the hill.
Plaintiff was familiar with the intersection and testified that she slowed down to 40 miles perhour as she approached it. She could not see it, however, until after she crested the hill [*2]and, when she did, Nickerson's vehicle was there in her lane andshe had no time to do anything to avoid the collision. For his part, Nickerson also was familiarwith the intersection. He testified that he slowed down as he approached it to commence his leftturn onto Lang Road, he did not see plaintiff's vehicle until it crested the hill from the south, butby then he had already commenced his turn and he also was unable to avoid the collision.
Plaintiffs commenced this action against Nickerson and defendant County of Tioga seekingto recover damages based on Nickerson's alleged negligent operation of his vehicle and theCounty's alleged negligent design of the intersection and failure to place appropriate signs andtraffic control devices. After joinder of issue and discovery, motions for summary judgment werefiled by the parties and denied by Supreme Court. Defendants appeal.
The County argues that the alleged inadequate design and lack of appropriate warning signson the road cannot be considered proximate causes of the accident because of the parties'admitted familiarity with the intersection. We are not persuaded. "Proximate cause is ordinarily afactual issue for resolution by a jury and therefore it is 'only [when] one conclusion may bedrawn from the established facts [that] the question of legal cause . . . [may] bedecided as a matter of law' " (Dupell v Levesque, 198 AD2d 712, 713 [1993], quotingDerdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Further, "there may be morethan one proximate cause of an accident" (Ayotte v Gervasio, 186 AD2d 963, 964[1992], affd 81 NY2d 1062 [1993]).
While it is generally true that the failure to provide additional warnings regarding a roadcondition will not be deemed a proximate cause of an accident where the drivers in question are"well acquainted" with the intersection (Atkinson v County of Oneida, 59 NY2d 840, 842[1983]), familiarity will not preclude liability as a matter of law where there is evidence thatadditional, binding traffic control devices would be appropriate and would, if followed, preventthe accident (see Scheemaker v State of New York, 125 AD2d 964, 965 [1986],affd 70 NY2d 985 [1988]). Here, in opposition to the County's motion for summaryjudgment, plaintiffs came forward with expert proof that the design of the intersection did notallow northbound drivers sufficient time to react to vehicles turning left onto Lang Road and thatthe 35 miles-per-hour advisory sign in place for northbound traffic, even if followed, wasinadequate to prevent the accident because of the limited sight distances and the resultinginsufficient time to react. Accordingly, we conclude that the record contains sufficient proof,when viewed in a light most favorable to plaintiffs, to create a question of fact as to whether thealleged negligence of the County was a proximate cause of the accident (see Scheemaker vState of New York, 125 AD2d at 965; see also Alexander v Eldred, 63 NY2d 460,469 [1984]; Miller v Town of Fenton, 247 AD2d 740, 742 [1998]; Dupell vLevesque, 198 AD2d at 713; Bailey v Honda Motor Co., 144 AD2d 119, 121 [1988],lv denied 73 NY2d 705 [1989]).
As for Nickerson, he contends that he is entitled to summary judgment because thedangerousness of the intersection and the lack of adequate warning signs caused the accident.Based on his description of his actions prior to the collision, however, a jury could also concludethat he was insufficiently cautious in making the left-hand turn, especially in view of his ownfamiliarity with the intersection. Thus, the existence of unresolved factual issues as to liabilitysupport the denial of Nickerson's motion for summary judgment, as well (see Secore v Allen, 27 AD3d 825,828-829 [2006]; Premo v Lam, 222 AD2d 872, 873 [1995]).
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order isaffirmed, with costs.