| Hain v Jamison |
| 2015 NY Slip Op 06074 [130 AD3d 1562] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Andrew J. Hain, Individually and as Executor of HollyJ. Hain, Deceased, Respondent, v Angela J. Jamison et al., Respondents, andDrumm Family Farm, Inc., Appellant. |
Brian P. Fitzgerald, P.C., Buffalo (Derek J. Roller of counsel), fordefendant-appellant.
Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of counsel), forplaintiff-respondent.
Coughlin & Gerhart, LLP, Binghamton (James P. O'Brien of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Steuben County (Marianne Furfure,A.J.), entered August 15, 2014. The order denied the motion of defendant DrummFamily Farm, Inc. for summary judgment dismissing the complaint and cross claimsagainst it.
It is hereby ordered that the order so appealed from is reversed on the law withoutcosts, the motion is granted and the complaint and all cross claims against defendantDrumm Family Farm, Inc. are dismissed.
Memorandum: This personal injury and wrongful death action arises from a motorvehicle accident in which plaintiff's wife (decedent) was struck on Curtis Coopers Road,in Steuben County, by a vehicle driven by defendant Leah A. Jamison and owned bydefendant Angela J. Jamison (collectively, Jamison defendants). The parties agree thatdecedent stopped her vehicle on the southbound side of that road, facing south, andexited her vehicle. Plaintiff alleges that decedent stopped her vehicle because a newlyborn calf that escaped from a farm owned by defendant Drumm Family Farm, Inc.(Drumm Farm) had wandered on or near the road, and decedent exited her vehicle toassist the calf. The parties further agree that both decedent and the calf were in thenorthbound lane when they were struck by the Jamison defendants' vehicle. Plaintiffcontends that Drumm Farm was negligent in allowing the calf to escape from its farm,and that such negligence was a proximate cause of decedent's death. We agree withDrumm Farm that Supreme Court erred in denying its motion for summary judgmentdismissing the complaint and all cross claims against it.
Although "a landowner or the owner of an animal may be liable under ordinarytort-law principles when a farm animal . . . is negligently allowed to strayfrom the property on which the animal is kept" (Hastings v Sauve, 21 NY3d 122, 125-126 [2013]; see Sargent v Mammoser, 117AD3d 1533, 1534 [2014]), "liability may not be imposed upon a party who merelyfurnishes the condition or occasion for the occurrence of the event but is not one of itscauses" (Ely v Pierce, 302 AD2d 489, 489 [2003], lv denied 100 NY2d505 [2003]; see Castillo vAmjack Leasing Corp., 84 AD3d 1298, 1298-1299 [2011], lv denied 17NY3d 711 [2011]; see generally Sheehan v City of New York, 40 NY2d 496,503 [1976]). Here, in support of its motion, Drumm Farm established that any negligenceon its part in allowing the calf to escape merely "created the opportunity for plaintiff tobe standing [in the roadway], [but] it did not cause [her] to stand" there (Hurlburt v Noble Envtl. Power,LLC, 128 AD3d 1518, 1519 [2015]; see Akinola v Palmer, 98 AD3d 928, 929 [2012]). "Inshort, the [alleged] negligence [*2]of [Drumm Farm]merely furnished the occasion for an unrelated act to cause injuries not ordinarilyanticipated" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316 [1980],rearg denied 52 NY2d 784 [1980]; see Papadakis v HM Kelly, Inc., 97 AD3d 731, 732 [2012];see generally Barnes v Fix,63 AD3d 1515, 1516 [2009], lv denied 13 NY3d 716 [2010]). Importantly,plaintiff does not contend, and did not submit any evidence that would establish, that thecalf's presence in the road blocked decedent's ability to travel in the southbound lane orotherwise forced decedent to stop her vehicle. Thus, Drumm Farm established as a matterof law that its "alleged negligent act, at most, caused the [calf to wander] out of the field,which was not the immediate cause of the accident" (Lee v New York City Hous. Auth., 25 AD3d 214, 219[2005], lv denied 6 NY3d 708 [2006]; see Schiff v Possemato, 25 AD3d 839, 839-840 [2006]),and plaintiff failed to raise a triable issue of fact in opposition (see Gerrity v Muthana, 28AD3d 1063, 1064 [2006], affd 7 NY3d 834 [2006]; Wechter v Kelner, 40 AD3d747, 748 [2007], lv denied 9 NY3d 806 [2007]).
All concur except Whalen, J., who dissents and votes to affirm in the followingmemorandum.
Whalen, J. (dissenting). I respectfully dissent. Defendant Drumm Family Farm, Inc.(Drumm Farm), as landowner and owner of the calf that plaintiff's wife (decedent)encountered on the roadway, may be held liable for her injuries if it negligently allowedthe calf to stray from its property (see Hastings v Sauve, 21 NY3d 122, 125-126 [2013]), andits negligence was a substantial cause of the events that resulted in decedent's injuries(see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied52 NY2d 784 [1980]; Pomeroy v Buccina, 289 AD2d 944, 945 [2001]).Contrary to the majority, I conclude that triable issues of fact remain whether DrummFarm's alleged negligence was a proximate cause of the accident.
There is no question that Drumm Farm owed a duty to keep its livestock out of theroadway, and that a motor vehicle accident is "within the class of reasonably foreseeablehazards that the duty exists to prevent" (Sanchez v State of New York, 99 NY2d247, 252 [2002]; see Hastings, 21 NY3d at 124-126; Sargent v Mammoser, 117AD3d 1533, 1534 [2014]). In my view, Drumm Farm failed to establish as a matterof law that it should be relieved of liability for its alleged breach of that duty becausedecedent's conduct was "of such an extraordinary nature or so attenuate[d] [DrummFarm's] negligence from the ultimate injury that responsibility for the injury may not bereasonably attributed to [Drumm Farm]" (Kush v City of Buffalo, 59 NY2d 26,33 [1983]).
Nor did Drumm Farm establish as a matter of law that its alleged negligence did notplace decedent in an unsafe position on the roadway by creating a hazard for her andother motorists (see Gardner vPerrine, 101 AD3d 1587, 1588 [2012]). It is impossible to determine from theevidence in the record whether the calf was on the shoulder of the road or in the travellane, and thus it is equally impossible to determine whether the calf's presence placeddecedent in a position of danger. If the calf was in a position that forced decedent to stopher vehicle on the curve of a dark country road, she would have been in a "position ofperil" (id.), regardless of whether she remained in the vehicle. I cannot agree withthe majority, moreover, that it was plaintiff's burden to submit evidence that the calf'spresence in the roadway blocked decedent's lane of travel or otherwise forced her to stopher vehicle. Rather, it was Drumm Farm's burden to eliminate, as a matter of law, anycausal link between its alleged negligence and decedent's death. Concluding that DrummFarm met that burden "requires the resolution of factual inferences in favor of [DrummFarm], which is improper on a motion for summary judgment" (Morris v Lenox HillHosp., 232 AD2d 184, 185 [1996], affd 90 NY2d 953 [1997]).
In sum, "because the determination of legal causation turns upon questions offoreseeability and 'what is foreseeable and what is normal may be the subject of varyinginferences, as is the question of negligence itself, these issues generally are for the[factfinder] to resolve' " (Kriz v Schum, 75 NY2d 25, 34 [1989],quoting Derdiarian, 51 NY2d at 315). As Supreme Court properly determined, ajury should decide whether the accident was a foreseeable consequence of DrummFarm's alleged negligence. I would therefore affirm the order denying Drumm Farm'smotion for summary judgment dismissing the complaint and all cross claims against it.Present—Smith, J.P., Peradotto, Carni and Whalen, JJ.