| Hubbard v County of Madison |
| 2012 NY Slip Op 01543 [93 AD3d 939] |
| March 1, 2012 |
| Appellate Division, Third Department |
| Philip E. Hubbard, Jr., et al., Individually and as Parents andGuardians of Jamie L. Hubbard, an Incapacitated Person, Appellants, v County of Madison et al.,Respondents. |
—[*1] Martin & Rayhill, P.C., Utica (Kevin G. Martin of counsel), for County of Madison,respondent. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for Joseph H.Sadlowski, respondent.
Peters, J. Appeal from an order of the Supreme Court (McDermott, J.), entered September 1,2011 in Madison County, which, among other things, granted defendants' motions for summaryjudgment dismissing the complaint.
In January 2008, Jamie L. Hubbard was driving westbound on Roberts Road in the Town ofLenox, Madison County when she lost control of her vehicle, crossed into the oncoming lane oftraffic and collided with a vehicle driven by defendant Joseph H. Sadlowski. Hubbard sustainedcatastrophic injuries as a result of the accident, including traumatic brain injury and quadriplegia,and has no memory of the collision or any of the events preceding it.
Plaintiffs commenced this action alleging that Sadlowski was negligent in the operation[*2]of his vehicle and that defendant County of Madisonnegligently maintained, designed and constructed the subject roadway and failed to provideadequate signage. Following joinder of issue, Sadlowski moved for summary judgmentdismissing the complaint, alleging that he was confronted with an emergency situation not of hismaking and acted reasonably in the face of the emergency. The County separately moved forsummary judgment contending, among other things, that it had no prior written notice of anyallegedly dangerous or defective condition on Roberts Road and that any alleged condition ordefect was not the proximate cause of the accident. Supreme Court granted both motions,prompting this appeal by plaintiffs.
The emergency doctrine " 'recognizes that when an actor is faced with a sudden andunexpected circumstance which leaves little or no time for thought, deliberation or consideration,or causes the actor to be reasonably so disturbed that the actor must make a speedy decisionwithout weighing alternative courses of conduct, the actor may not be negligent if the actionstaken are reasonable and prudent in the emergency context' " (Caristo v Sanzone, 96NY2d 172, 174 [2001], quoting Rivera v New York City Tr. Auth., 77 NY2d 322, 327[1991]). Such an emergency situation arises when a vehicle traveling in the opposite directioncrosses into a driver's lane (seeCancellaro v Shults, 68 AD3d 1234, 1236 [2009], lv denied 14 NY3d 706[2010]; Mandel v Benn, 67 AD3d746, 747 [2009]; Dearden vTompkins County, 6 AD3d 783, 784 [2004]; Burnell v Huneau, 1 AD3d 758, 760 [2003]). "Whether a driver'sactions in an emergency situation were reasonable is ordinarily a question of fact, but summaryjudgment may be granted 'when the driver presents sufficient evidence to establish thereasonableness of his or her actions and there is no opposing evidentiary showing sufficient toraise a legitimate question of fact on the issue' " (Cancellaro v Shults, 68 AD3d at 1236,quoting Burnell v Huneau, 1 AD3d at 760; see Lamey v County of Cortland, 285AD2d 885, 886 [2001]; Smith v Brennan, 245 AD2d 596, 597 [1997]).
Sadlowski testified that he was driving easterly along Roberts Road when he first observedHubbard's vehicle as she was coming out of the second of two left curves on Roberts Road. Hetestified that he was driving at no more than 45 miles per hour and within the posted speed limit,and described the weather as cloudy and the road as flat, level and clear of snow. Sadlowskiexplained that, upon first observing Hubbard's vehicle as it came out of the second curve, itappeared to have "been off the shoulder of the road or on the shoulder off the edge of thehighway." Sadlowski testified that after he took his foot off of the accelerator to slow downbecause it appeared that Hubbard was attempting to get back onto the roadway, Hubbard'svehicle "came right across" into his lane of travel and collided with the front of his vehicle.According to Sadlowski, three seconds passed between the time he first observed Hubbard'svehicle and the collision. He testified further that when Hubbard's vehicle suddenly crossed intohis lane, "it was too close" and there was no time to stop. A deputy sheriff trained in accidentreconstruction who arrived at the scene shortly after the accident took various measurements,inspected the area and concluded, from his examination of all of the available evidence, that thepoint of impact between the two vehicles had taken place wholly within the eastbound lane inwhich Sadlowski was traveling. Notably, nothing contained in the police report or elsewhere inthe record is inconsistent with Sadlowski's account (see Cancellaro v Shults, 68 AD3d at1237). By his uncontradicted testimony, Sadlowski established that he " 'was confronted with anemergency and was not negligent in regard to the emergency,' thereby shifting the burden toplaintiff[s] to establish the existence of issues of fact" (Cancellaro v Shults, 68 AD3d at1237, quoting Cohen v Masten, 203 AD2d 774, 776 [1994], lv denied 84 NY2d809 [1994]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).[*3]
In opposition to Sadlowski's motion, plaintiffs presentedthe affidavits of an engineer, a body shop owner and their attorney. The body shop owner's"estimate" that Sadlowski's vehicle was traveling 55 miles per hour upon impact with Hubbard'svehicle constitutes pure speculation (see Cancellaro v Shults, 68 AD3d at 1237;Bavaro v Martel, 197 AD2d 813, 814 [1993]), and the affidavit of plaintiffs' attorney,who had no personal knowledge of the salient facts, was likewise without evidentiary value andinsufficient to defeat the motion (see Zuckerman v City of New York, 49 NY2d 557, 563[1980]; DiBartolomeo v St. Peter'sHosp. of the City of Albany, 73 AD3d 1326, 1327 [2010]; Haire v Bonelli, 57 AD3d 1354,1357 [2008]; Prince v Accardo, 54AD3d 837, 838 [2008]). Plaintiffs' engineer opined that Sadlowski could have donesomething to avoid the accident, such as slow down, stop immediately upon seeing Hubbard's carcross into his lane or swerve into the open, oncoming lane of traffic. These conclusions, however,are both speculative and grounded upon incorrect facts. For instance, the engineer's opinion wasbased on his assumption that the road was dry at the time of the accident, but this assumptionfinds no support in the record and is contradicted by the deposition testimony of the three officerswho first responded to the scene, all of whom testified that the road was slippery. Moreover,while the engineer opined that Sadlowski could have avoided the accident given his sightdistance from when he observed Hubbard's vehicle "reenter" the roadway from the shoulder, heexpressed no opinion regarding when Hubbard's vehicle crossed the center line and how longSadlowski then had to react. It is well settled that "[a] driver in his [or her] proper lane of travelis not required to anticipate that a car going in the opposite direction will cross over into thatlane" (Lamey v County of Cortland, 285 AD2d at 886 [internal quotation marks andcitations omitted]; see Cancellaro v Shults, 68 AD3d at 1236; Wasson v Szafarski, 6 AD3d1182, 1183 [2004]; Burnell v Huneau, 1 AD3d at 760). As " '[s]peculation regardingevasive action that a defendant driver should have taken to avoid a collision, especially when thedriver had, at most, a few seconds to react, does not raise a triable issue of fact' " (Cancellarov Shults, 68 AD3d at 1237, quoting Dearden v Tompkins County, 6 AD3d at 785;see Burnell v Huneau, 1 AD3d at 761; Lamey v County of Cortland, 285 AD2d at887), the complaint was properly dismissed as against Sadlowski.[FN*]
Supreme Court properly awarded summary judgment to the County. Local Law No. 3 (1978)of the County of Madison provides that no civil action for damages or injuries to person orproperty arising out of alleged highway defects may be maintained against the County in theabsence of prior written notice. Here, it is undisputed that no such notice was given to theCounty. With respect to plaintiffs' claim that the accident was caused by a "lip" of more than twoinches from the paved portion of the highway to the shoulder, they contend that no prior writtennotice was required because the County created the defect through an affirmative act ofnegligence (see Oboler v City of NewYork, 8 NY3d 888, 889 [2007]; Amabile v City of Buffalo, 93 NY2d 471, 474[1999]). However, the affirmative negligence exception to prior written notice statutes appliesonly where the action of the municipality " 'immediately results in [*4]the existence of a dangerous condition' " (Yarborough v City of New York, 10NY3d 726, 728 [2008], quoting Oboler v City of New York, 8 NY3d at 889; see San Marco v Village/Town of MountKisco, 16 NY3d 111, 117 [2010]; Boice v City of Kingston, 60 AD3d 1140, 1141 [2009]). Whileevidence was presented that the County resurfaced the roadway and widened it from 20 to 24 feetin 2002, plaintiffs presented no proof establishing that any alleged differential between theroadway and the shoulder was the immediate result of this activity, as opposed to a condition thatevolved over time (see Oboler v City of New York, 8 NY3d at 889-890; Stride v City of Schenectady, 85 AD3d1409, 1410-1411 [2011]; Davis vCity of Schenectady, 65 AD3d 743, 745 [2009]; Boice v City of Kingston, 60AD3d at 1141-1142).
As for their claims alleging negligent design of the roadway and failure to erect adequate andproper warning signs, we agree with plaintiffs that the prior written notice requirements do notapply to these alleged defects (seeO'Buckley v County of Chemung, 88 AD3d 1140, 1141 [2011]; Lugo v County ofEssex, 260 AD2d 711, 713 [1999]; Akley v Clemons, 237 AD2d 780, 781-782[1997]). Nevertheless, plaintiffs failed to satisfy their burden of coming forward with evidenceraising a question of fact concerning any negligence on the part of the County in this regard.
Plaintiffs submitted no proof that the signage that was in place at the time of the accident wasobscured, inadequate or otherwise failed to comply with acceptable standards. With respect totheir claim that the double curve design of Roberts Road is inherently dangerous, plaintiffsoffered the affidavits of two engineers who averred that the design of the curve violated "goodhighway design engineering and construction practice." Even assuming that these affidavits weresufficient to establish a design defect, it is firmly established that, "[i]n maintaining olderhighways, [a municipality] is not obliged to undertake expensive reconstruction simply becausehighway safety design standards have changed since the original construction" (Van DeBogart v State of New York, 133 AD2d 974, 976 [1987]; see Racalbuto v Redmond, 46 AD3d 1051, 1052 [2007]; Evansv Stranger, 307 AD2d 439, 441 [2003]; Holscher v State of New York, 59 AD2d224, 226-227 [1977], affd 46 NY2d 792 [1978]). Rather, upgrades are necessary onlywhen a roadway has a history of accidents or undergoes significant repairs or reconstruction (see Madden v Town of Greene, 64AD3d 1117, 1119 [2009]; Hay vState of New York, 60 AD3d 1190, 1191 [2009]; Cave v Town of Galen, 23 AD3d 1108, 1108-1109 [2005]; Preston v State of New York, 6 AD3d835, 835-836 [2004], lv denied 3 NY3d 601 [2004]). Here, the uncontradicted proofsubmitted by the County established that it did not design Roberts Road, but rather inherited itfrom Chenango County in 1803, and there is no evidence that the roadway—which wasdesigned in the "horse-and-buggy days"—was not designed in compliance with standardsin effect at the time. Furthermore, there is no documented history of accidents in the vicinity ofthe double curve on Roberts Road which would place the County on notice of the need forreconstruction or remediation of the roadway, and merely widening a roadway and overlaying itwith new pavement, "as opposed to 'ripping it out and rebuilding it or reconfiguring it,' does notconstitute significant repair or reconstruction for the purpose of requiring a municipality toupgrade a roadway to comply with current design standards" (Madden v Town of Greene,64 AD3d at 1120, quoting Hay v State of New York, 60 AD3d at 1192). Moreover, onthis record, it would be entirely speculative to conclude that any inadequate signing or defectivehighway design contributed to the accident (see Donato v County of Schenectady, 156AD2d 859, 861 [1989]). For these reasons, Supreme Court properly granted the County's motionfor summary judgment.
Plaintiffs' remaining contentions have been reviewed and found to be without merit.[*5]
Mercure, A.P.J., Malone Jr., Kavanagh and McCarthy,JJ., concur. Ordered that the order is affirmed, without costs.
Footnote *: We note that, inasmuch as therewas no showing of facts from which negligence on the part of Sadlowski may be inferred, thelesser standard of proof set forth in Noseworthy v City of New York (298 NY 76 [1948])is inapplicable (see Wank v Ambrosino, 307 NY 321, 323-324 [1954]; Fisher vFarrell, 183 AD2d 1010, 1011 [1992]; Gardner v Ethier, 173 AD2d 1002, 1004[1991]; Mildner v Wagner, 89 AD2d 638, 638 [1982]).