| Gardner v Perrine |
| 2012 NY Slip Op 08871 [101 AD3d 1587] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| Mark Gardner et al., Appellants, v Jonathan C. Perrine et al.,Defendants, and Sealand Contractors Corp., Respondent. |
—[*1] Law Offices of Laurie G. Ogden, Esq., Rochester (Gary J. O'Donnell of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.),entered December 15, 2011 in a personal injury action. The order granted the motion ofdefendant Sealand Contractors Corp. for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the complaint against defendant Sealand ContractorsCorp. is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byMark Gardner (plaintiff) when he was struck by a vehicle while attempting to repair a dislodgedwater valve cover on North Main Street in Canandaigua. At the time of the accident, plaintiff wasan engineer employed by the New York State Department of Transportation and was overseeingthe repaving work of Sealand Contractors Corp. (defendant). Plaintiff noticed the dislodged valvecover in the street and contacted a supervisor at defendant to repair the cover. According toplaintiff, the supervisor indicated that all of defendant's crews had left for the day and askedplaintiff to take care of the problem. Plaintiff parked his vehicle partially on the road and turnedon the vehicle's emergency light. He attempted to fix the cover but realized that he needed a toolin the trunk of his vehicle to do so. While standing behind his vehicle retrieving the tool, plaintiffwas struck by a passing vehicle.
Defendant moved for summary judgment seeking, inter alia, dismissal of the complaintagainst it on the ground that, even if it was negligent, its negligence provided only the occasionor opportunity for the accident and was not a proximate cause of the accident. We conclude thatSupreme Court erred in granting the motion. "To establish a prima facie case, plaintiff must showthat 'defendant's negligence was a substantial cause of the events which produced the injury' "(Kush v City of Buffalo, 59 NY2d 26, 32-33 [1983]). "An intervening act will be deemeda superseding cause and will serve to relieve defendant of liability when the act is of such anextraordinary nature or so attenuates defendant's negligence from the ultimate injury that [*2]responsibility for the injury may not be reasonably attributed to thedefendant . . . When, however, the intervening act is a natural and foreseeableconsequence of a circumstance created by defendant, liability will subsist" (id. at 33)."[T]hese issues generally are for the [factfinder] to resolve" (Derdiarian v Felix Contr.Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]).
Here, defendant failed to meet its initial burden of establishing that the intervening acts ofplaintiff in positioning himself in the middle of the road, and the third party striking plaintiff withhis vehicle, were unforeseeable and extraordinary acts. The deposition testimony and thephotographs of the scene of the accident established that the water valve was in the middle of thedriving lane, not in the shoulder of the street, so that it was necessary for plaintiff to stand in themiddle of the road to fix the displaced cover. Plaintiff testified that he positioned his vehiclepartially in the road to protect himself while at the same time giving motorists room to maneuveraround him. It was therefore foreseeable that plaintiff would be standing in the road whileattempting to fix the defect. It was also foreseeable that there was a risk to plaintiff of beingstruck by an inattentive driver as he attempted to fix the displaced cover (see White v Diaz, 49 AD3d 134,140 [2008]).
The court's reliance on Barnes vFix (63 AD3d 1515 [2009], lv denied 13 NY3d 716 [2010]) was misplaced. Inthat case, the plaintiff wife (hereafter, the plaintiff) was rear-ended by a vehicle driven byHarrison W. Caleb, Jr., but was not injured in that accident (id. at 1515-1516). Calebmoved his vehicle to the side of the road, while the plaintiff left her vehicle in the road and stoodoutside it to wait for the police (id. at 1515). A vehicle driven by one of the defendants,Dean E. Fix, slid out of control, and the plaintiff attempted to reenter her vehicle but was unableto do so and was injured when Fix's vehicle struck her vehicle (id. at 1515-1516). Weheld that Caleb was not liable for injuries sustained by the plaintiff in the second accidentbecause his "negligence, if any, 'did nothing more than to furnish the condition or give rise to theoccasion by which the injury was made possible and which was brought about by the interventionof a new, independent and efficient cause' " (id. at 1516, quoting Gralton vOliver, 277 App Div 449, 452 [1950], affd 302 NY 864 [1951]). The record onappeal in Barnes establishes that, as in Gralton, the plaintiff's vehicle was stoppedin no different a position after the first accident, which was at or near a stop sign, i.e., a normal orlawful position and not a position of peril (see Gralton, 277 App Div at 450, 452; seealso Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952 [1978], mot to amendremittitur granted 46 NY2d 770 [1978]). In contrast here, the alleged negligent act ofdefendant placed plaintiff in an unsafe position, i.e., standing in the road with vehicles driving byhim (see Betancourt v Manhattan Ford Lincoln Mercury, 195 AD2d 246, 247-248[1994], appeal dismissed 84 NY2d 932 [1994]). Present—Scudder, P.J., Centra,Peradotto, Lindley and Whalen, JJ.