| Smith v Allen |
| 2015 NY Slip Op 00593 [124 AD3d 1128] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| Jeanette A. Smith, Appellant, v Rachel B. Allenet al., Respondents. |
McNamee, Lochner, Titus & Williams, PC, Albany (Christopher Massaroni ofcounsel), for appellant.
Corrigan McCoy & Bush, PLLC, Rensselaer (Peter J. Corrigan of counsel), forRachel B. Allen, respondent.
Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for Harold R.Boutelle, respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Nolan Jr., J.), enteredSeptember 4, 2013 in Saratoga County, which granted defendants' motions for summaryjudgment dismissing the complaint.
On February 7, 2009 at approximately 6:00 p.m., defendant Harold R. Boutelle wasdriving northbound on North Creek Road in the Town of Greenfield, Saratoga County.As defendant Rachel B. Allen was driving a vehicle owned by defendant Connie E.Bourdeau southbound on the same road, Allen struck a deer that was then propelled intothe air and onto the hood of Boutelle's vehicle, breaking Boutelle's windshield andexiting through his rear window. Plaintiff, a front-seat passenger in Boutelle's truck, wasseriously injured and she commenced this negligence action against defendants.Following joinder of issue, defendants moved for summary judgment dismissing thecomplaint. Supreme Court granted the motions and plaintiff now appeals.
As the proponents of a motion for summary judgment, it was incumbent upondefendants to "make a prima facie showing of entitlement to judgment as a matter of law,tendering sufficient evidence to demonstrate the absence of any material issues of fact"(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; accord Baird v Gormley, 116AD3d 1121, 1122[*2][2014]). In support of theirmotions, defendants relied upon the deposition testimony of Boutelle and Allen. Boutelletestified that, on the evening in question, it was getting dark, he was drivingapproximately 40 to 50 miles per hour, which was less than the posted speed limit, andwas traveling along a straightaway when he noticed a vehicle ahead of him in theopposite lane lower its high beams. As he approached the vehicle, he was talking toplaintiff while keeping a view of the road. He never saw the deer until it came throughhis windshield and struck plaintiff.
Similarly, Allen testified that it was getting dark and she was traveling with afront-seat passenger going approximately 40 miles per hour along a straightaway justprior to the accident. She stated that she dimmed her headlights upon seeing anapproaching vehicle in the opposite lane, but did not see any deer. Even when the deerimpacted her vehicle, she was not sure exactly what she had hit. She learned later that shehad struck a deer and that it had been propelled into the windshield of Boutelle's truck,which was the approaching vehicle. Like Boutelle, she did not slow down or have anopportunity to take evasive action.
Generally, "[d]rivers have a duty to see what should be seen and to exercisereasonable care under the circumstances to avoid an accident" (Singh v Avis Rent A Car Sys.,Inc., 119 AD3d 768, 769 [2014]; see Rost v Stolzman, 81 AD3d 1401, 1402 [2011];Woolley v Coppola, 179 AD2d 991, 992 [1992]). The deposition testimony ofboth Boutelle and Allen established that it was dusk and that neither of them saw the deeruntil it came into contact with their respective vehicles. There is nothing in theirtestimony to suggest that they should have seen the deer under the circumstancespresented or that either had time to react to avoid it (see Meagher v Greis, 283AD2d 970, 970-971 [2001]). Furthermore, there is no evidence that either was speeding,distracted while driving or in violation of the Vehicle and Traffic Law (compare Shui-Kwan Lui vSerrone, 103 AD3d 620, 620-621 [2013]; Olsen v Baker, 112 AD2d510, 511 [1985], lv denied 66 NY2d 604 [1985]; Bishop v Sumner, 67AD2d 797, 797 [1979]). Thus, defendants demonstrated their entitlement to summaryjudgment.
Having made this showing, the burden then shifted to plaintiff to "produceevidentiary proof in admissible form sufficient to establish the existence of [a] materialissue[ ] of fact which require[s] a trial of the action" (Alvarez v Prospect Hosp.,68 NY2d at 324; accord Baird v Gormley, 116 AD3d at 1123). In opposition tothe motions, plaintiff submitted the deposition testimony of John Reome, a tow truckoperator who was driving ahead of Allen on the evening in question, as well as theaffidavit of Bradford Silver, an automobile accident reconstruction expert. Reomeacknowledged that it was getting dark at the time and that he, as well as Allen andBoutelle, had activated their headlights. He related that he saw four or five deer on theleft side of the road eating apples on the ground near a bend just before a straightawaythat continued approximately 1,500 feet. He noticed Allen's car behind him and hadpassed Boutelle's truck when he observed that the vehicles seemed to disappear. Hestated that he turned around to discover that Allen's car had struck a deer, propelling thedeer into the windshield of Boutelle's truck.
After reviewing the deposition transcripts and other documentary evidence, andvisiting the accident site, Silver provided an opinion on the estimated reaction times forAllen and Boutelle based upon the speeds that they were traveling and their clear sightdistances from the accident location. He opined that Boutelle had three seconds to reactand that Allen had 11 seconds, both of which were greater than the .75- to 1.5-secondrange of driver perception-reaction times generally accepted by accident reconstructionauthorities. On this basis, he further opined that Allen and Boutelle were both negligentin not observing the deer and reacting to avoid the accident.
[*3] We find that neither the deposition testimony ofReome nor the affidavit of Silver raises a material issue of fact on the issue of negligenceso as to preclude an award of summary judgment in favor of defendants (seeBachman v Cook, 281 AD2d 938, 939 [2001]). Significantly, Reome's testimonydoes not establish that the deer he observed eating apples were in the same area of theroad where the accident occurred or that it was one of these deer that actually impactedthe vehicles driven by Allen and Boutelle. In view of this, it cannot be concluded thateither Allen or Boutelle failed to perceive an apparent hazard and take reasonablemeasures to avoid contact. Moreover, to the extent that Silver's affidavit relies upon thetestimony of Reome and also fails to take into account the fact that it was dusk at thetime of the accident, it is of questionable probative value and, further, is lacking in detail,as it does not set forth the calculations that he made to arrive at his conclusion thatBoutelle had three seconds to react and Allen had 11 seconds (see Costanzo v County ofChautauqua, 110 AD3d 1473, 1473 [2013]). Accordingly, we find that theaffidavit is conclusory, speculative and insufficient to defeat defendants' motions (seeMeagher v Greis, 283 AD2d at 971; see also Rost v Stolzman, 81 AD3d at1403). Therefore, even viewing the evidence in the light most favorable to plaintiff(see Boyce v Vazquez, 249 AD2d 724, 726 [1998]), Supreme Court properlygranted defendants' motions and dismissed the complaint (see Wolbe v Fishman, 29AD3d 785, 785-786 [2006]; Miesing v Whinnery, 233 AD2d 551, 552[1996]).
Rose, Egan Jr. and Lynch, JJ., concur. Ordered that the order is affirmed, with onebill of costs.