| Dalton v Lucas |
| 2012 NY Slip Op 04913 [96 AD3d 1648] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| James R. Dalton, Appellant, v Frederick J. Lucas et al.,Respondents. |
—[*1] Trevett Cristo Salzer & Andolina P.C., Rochester (David Murphy of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.),entered August 12, 2011 in a personal injury action. The order, insofar as appealed from, deniedthe motion of plaintiff for summary judgment on the issues of negligence and proximate cause.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen a vehicle operated by Frederick J. Lucas (defendant) and owned by defendant TransitowneDodge of Greece, doing business as Doan Dodge Chrysler (Transitowne), collided with a vehicleoperated by plaintiff. The collision occurred when plaintiff and defendant were driving inopposite directions on a two-lane bridge, and the vehicle driven by defendant entered plaintiff'slane of travel and collided head-on with plaintiff's vehicle. Contrary to plaintiff's contention,Supreme Court properly denied those parts of his motion with respect to the issues of negligenceand proximate cause because defendants raised a triable issue of fact concerning the applicabilityof the emergency doctrine.
Under the emergency doctrine, " 'when [a driver] is faced with a sudden and unexpectedcircumstance which leaves little or no time for thought, deliberation or consideration, or causesthe [driver] to be reasonably so disturbed that [he or she] must make a speedy decision withoutweighing alternative courses of conduct, the [driver] may not be negligent if the actions taken arereasonable and prudent in the emergency context' . . . provided the [driver] has notcreated the emergency" (Caristo v Sanzone, 96 NY2d 172, 174 [2001], quotingRivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991], rearg denied 77NY2d 990 [1991]; see Lifson v City ofSyracuse, 17 NY3d 492, 497 [2011]). The existence of an emergency and thereasonableness of a driver's response thereto generally constitute issues of fact (see Patterson v Central N.Y. RegionalTransp. Auth. [CNYRTA], 94 AD3d 1565, 1566 [2012]; Mitchell v City of New York, 89AD3d 1068, 1069 [2011]; Schlanger v Doe, 53 AD3d 827, 828 [2008]).[*2]
Here, plaintiff established a prima facie case ofnegligence by submitting evidence that defendant's vehicle crossed the center line of the roadwayand struck plaintiff's vehicle head-on (see Boorman v Bowhers, 27 AD3d 1058, 1059 [2006]; Matte v Hall, 20 AD3d 898,899-900 [2005]; Stringari v Peerless Importers, 304 AD2d 413, 413 [2003]). Defendants,however, raised an issue of fact whether defendant was faced with a sudden and unexpectedsituation, i.e., the icy condition of the bridge, and whether he acted reasonably under thecircumstances (see Boorman, 27 AD3d at 1059; Brown v Bracht, 132 AD2d 857,859 [1987], lv denied 70 NY2d 615 [1988]). In opposition to the motion, defendantssubmitted an affidavit in which defendant averred that the road was damp from intermittentprecipitation on the day of the accident and that, from the time he left Transitowne until hereached the bridge, he did not observe or experience any slippery or icy road conditions.According to defendant, he experienced no loss of traction or control while approaching thebridge, and there was no visible accumulation of ice or snow on the road prior to reaching theinclined portion of the bridge. Defendant thus averred that the "icy condition on the hill wastotally unanticipated." Defendants also submitted weather records reflecting that, on the date ofthe accident, temperatures in the area hovered near the freezing mark, with trace precipitationthroughout the day and negligible snow accumulation (.08 inches) by the time of the accident.Plaintiff similarly testified at his deposition that, although it was "quite cold" on the date of theaccident, he did not recall much precipitation that day and he did not have any difficultymaintaining traction during his drive home from work. Defendants thus raised an issue of factwhether defendant was "confronted with a sudden unanticipated and unforeseeable icingof the bridge surface which placed him in an emergency situation" (Brown, 132 AD2d at859; cf. Bellantone v Toddy Taxi, 307 AD2d 979, 979-980 [2003]; Smith vPerfectaire Co., 270 AD2d 410 [2000]).
Contrary to plaintiff's further contention, we conclude that there is an issue of fact concerningthe reasonableness of defendant's actions when he was faced with the purported emergency,including his alleged failure to apply the brakes upon losing control of the vehicle (see generally Heye v Smith, 30 AD3d991, 992 [2006]; Bixler v Buckeye Pipe Line Co., 309 AD2d 1285, 1286 [2003]).Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.