I cannot recall why and when I first started collecting the articles about motorcycle accidents; however, over time, I realized that lawsuits arising from such claims are very common (in retrospect, for obvious reasons, the inherent danger and risk of riding a motorcycle). The causes raise a broad panoply of issues including proximate cause, helmet design and manufacture; and road and intersection signage and speed limits. A few recent examples follow:
Caro v. Chesnick, 2017 NY Slip Op 07940 (1st Dept., November 14, 2017)
Supreme Court granted defendants’ motion for summary judgment dismissing the complaint.
The First Department briefly described the facts:
Plaintiffs’ decedent was riding his motorcycle on the Cross Bronx Expressway, lane-splitting and weaving in and out of lanes at a rate of speed in excess of other vehicles on the road, in stop and go traffic, when he struck the rear of a motor vehicle in the center lane. Decedent was thrown from his motorcycle to the left lane, rolled under defendants’ tractor-trailer, and was run over by the tractor-trailer’s rear wheels.
And, as follows, summarily affirmed:
Defendants made a prima facie showing that decedent’s negligent operation of the motorcycle caused the accident…Further, although defendants acknowledge that the tractor-trailer was unlawfully in the left lane at the time of the accident…there is no evidence in the record that would support a finding that the statutory violation was a proximate cause of the accident. The presence of the tractor-trailer in the left lane merely furnished the condition that led to decedent’s death, and was not a proximate cause of the accident…Nor is there any nonspeculative basis for finding that defendant driver could have avoided the accident.
Bell v. Brown, 2017 NY Slip Op 05898 (3rd Dept. July 27, 2017)
Supreme Court denied defendant’s motion for summary judgment dismissing the complaint:
The Third Department summarized the facts:
Plaintiff was leading a group of motorcyclists traveling on a two-lane roadway in a staggered formation at less than the speed limit behind a van driven by third-party defendant, Rodney Daunais. Daunais — in turn — was traveling behind defendant’s vehicle. This line of traffic proceeded up a hill and, as plaintiff came over its crest, he saw Daunais’ van suddenly swerve into the oncoming traffic lane to avoid hitting defendant’s vehicle, which had stopped in the roadway. Unable to swerve to the left due to the presence of another oncoming motorcycle, plaintiff laid his motorcycle down and struck the rear corner of defendant’s vehicle.
The prior proceedings:
After plaintiff commenced this action to recover for his injuries, defendant moved for summary judgment dismissing the complaint, alleging, among other things, that plaintiff failed to demonstrate a nonnegligent explanation for the rear-end collision. Supreme Court denied the motion, finding that a triable issue of fact existed as to whether defendant had stopped in a manner that posed a risk to vehicles traveling behind him[.]
And, as follows, summarily affirmed:
It is undisputed that defendant has satisfied his initial summary judgment burden inasmuch as “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle”…The burden therefore shifted to plaintiff to demonstrate a nonnegligent explanation for the collision…As relevant here, “[e]vidence that the vehicle which was rear-ended came to a sudden and abrupt stop will defeat summary judgment”[.]
Although defendant contends that he was attempting to turn into a driveway when plaintiff rear-ended him and that he had appropriately slowed his vehicle and activated his turn signal prior to turning, Daunais contradicted him, testifying that defendant “stopped dead in the road.” Daunais averred that he then “took a chance” and swerved left into the oncoming traffic lane to avoid colliding with defendant’s vehicle. Plaintiff explained that he was unable to do the same because another motorcyclist was by then blocking him from safely veering to the left. Other motorcyclists traveling with plaintiff also testified that they observed Daunais’ van swerve into the oncoming traffic lane to reveal defendant’s vehicle stopped in the road. This proof, when viewed “in the light most favorable to plaintiff and affording him the benefit of every favorable inference”…demonstrates a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision[.]
Wiley v. ESI N.Y. Inc., 2017 NY Slip Op 08465 (1st Dept. December 5, 2017)
Supreme Court denied motions to dismiss the third-party complaints against Verizon and Granite Avenue Utility Corp.
The First Department, as follows, summarily reversed:
Plaintiff was injured when the motorcycle he was driving collided with a truck owned by defendant ESI New York, Inc., and operated by defendant Krzysztof M. Hajnos. Defendants contend that the cause of the accident was Granite’s negligent performance of road work, pursuant to a contract with Verizon, which had left the road in a hazardous condition.
Verizon and Granite established prima facie that Granite’s road work was not a proximate cause of the accident. Plaintiff testified that he was forced to stop abruptly when a truck cut him off and that the condition of the road was smooth and did not impede his ability to control his dirt bike. Hajnos, the driver of the truck, testified that he saw no potholes or cracks or other defects in the road.
In opposition, defendants failed to raise an issue of fact as to the condition of the road…None of their eyewitnesses said that they saw plaintiff’s motorcycle hit a defect in the road, and the police report, which described the accident in terms of “probably” and “likely,” is speculative…Moreover defendants’ expert failed to opine that the road condition was a factor in causing the accident. Defendants also failed to demonstrate that additional discovery could lead to evidence sufficient to defeat the motion[.]
Pasternak v. Chenango, 2017 NY Slip Op 08578 (3rd Dept. December 7, 2017)
Supreme Court denied the County’s motion for summary judgment dismissing the complaint.
The Appellate Division briefly summarized the facts:
In August 2012, plaintiff was operating his motorcycle on a roadway owned and maintained by defendant County of Chenango…when he lost control and was thrown off.
The prior proceedings:
Plaintiff commenced this action, alleging, among other things, that defendant was negligent in the design, construction and maintenance of the subject roadway.
* * *
Defendant thereafter moved for summary judgment dismissing the complaint, arguing, among other things, that it had never received prior written notice of the alleged defect, as required by local law. Supreme Court denied defendant’s motion, holding that, in opposition to defendant’s motion, plaintiff established that issues of fact existed as to constructive notice and proximate cause.
And, as follows, summarily affirmed on different grounds:
The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, “a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective…highway. However, where Highway Law § 139 is applicable — in the case of county roads — “[e]ven if a local law exists requiring prior written notice of a defect, a civil action may be commenced absent such notice against a municipality for injuries resulting from a defect in a highway under its care if the `defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence’”…Thus, to establish entitlement to summary judgment, a county must show both that it received no prior written notice of the alleged defect and that it had no actual or constructive notice thereof[.]
Although there is no dispute that defendant did not receive prior written notice of the alleged defects, defendant failed to demonstrate prima facie entitlement to summary judgment as its own submissions raise a triable issue of fact regarding constructive notice…In addition, these submissions raise questions about the inferiority of the road’s design and construction…In particular, Shawn Fry, defendant’s Director of Public Works who oversees defendant’s Highway Department, testified to some knowledge of the subject road’s readily apparent, less than ideal surface conditions, which he suspected to have been caused by the observable increase in traffic and presence of heavy vehicles in the years leading up to the subject accident. Also, a witness to the accident, who frequently traveled the road, testified that when she would drive this section of the road, she felt the need to veer into the oncoming traffic lane to avoid road defects. Another eyewitness testified that the road at the scene was wavy and uneven. A security guard for a business located on the road near the accident site described the subject roadway defects as obvious and observable. Both Fry and Kevin Cross, the Highway Superintendent in the Town of Columbus, Chenango County, also called into question whether the materials used in constructing the subject road were satisfactory, and defendant failed to offer any evidence that the road was otherwise designed and constructed in accordance with applicable standards at the time it was built.
Defendant also failed to carry its prima facie burden as to its claim that plaintiff’s intoxicated conduct was the sole proximate cause of his injuries. Three separate witnesses testified that plaintiff, while perhaps traveling in excess of the posted speed limit, was not thrown from his motorcycle until he hit the “uneven,” “wavy” section of road containing depressions or divots. As “[t]here can be more than one proximate cause of an accident”…defendant’s submissions fail to demonstrate that plaintiff was the sole proximate cause of the accident here.
Thompson v. Peacock, 2018 NY Slip Op 02172 (2nd Dept. March 28, 2018)
Supreme Court granted the motion of Eric Leigh Peacock for summary judgment dismissing the complaint in an action to recover damages for personal injuries.
The Appellate Division summarized the facts:
The plaintiff alleges that she was injured while a passenger on a motorcycle which came into contact with a vehicle owned and operated by the defendant Erin Leigh Peacock on North Rock Point Landing Road in Brookhaven. The plaintiff subsequently commenced this action to recover damages for personal injuries.
The summary judgment standard:
A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident…There can be more than one proximate cause of an accident…and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause”[.]
And affirmed, concluding that:
The evidence submitted in support of Peacock’s motion demonstrated, prima facie, her freedom from fault in the happening of the subject accident…In opposition, the plaintiff failed to raise a triable issue of fact as to whether Peacock was at fault in the happening of the accident by violating Vehicle and Traffic Law § 1143[.]
Narvaez v. Wadsworth, 2018 NY Slip Op 50309(U) (Sup. Ct. Bx, Co., March 1, 2018)
Supreme Court addressed the motion of Arai Helmet, Ltd. Americas, Inc. for an order granting summary judgment and dismissing the complaint of Nelson Narvaez.
The Court summarized the facts:
This matter arises out of an alleged motor vehicle accident that occurred at or around 1:00AM on September 8, 2007. Plaintiff alleges that at the time of the accident, he was wearing an Arai-branded “Astral” model helmet and riding a motorcycle near Lehman College in the Bronx when he collided with a Mazda vehicle owned and/or operated by co-defendants Ricky Wadsworth and George Quintana. Plaintiff claims that as a result of the impact, his helmet became dislodged from his head, causing him to sustain injuries.
Plaintiff testified that he purchased the helmet from a private seller in Long Island in 2006. The physical makeup and condition of the helmet is not in dispute. The helmet is a “full face” helmet that contains a retention system to secure it to the wearer’s head. The retention system consists of a black nylon chin strap made up of two portions of unequal length. The shortened portion of the strap has two metal “D-rings” along with the “female” half of a red plastic snap fastener positioned on the strap directly above the “D-rings,” and a red elongated release tab on the lower D-ring. The other, longer portion of the strap has the “male” half of the red plastic snap fastener. The helmet can be secured by looping the nylon straps through the “D-rings.” Plaintiff testified that when he wore the helmet, however, he only joined the two straps under his chin using the red plastic snap mechanism, and he never used the “D-rings” because the helmet felt snug and secure using only the plastic snaps. Plaintiff believed that using only the plastic snaps was a proper way to secure the helmet to his head.
The causes of action:
Following this accident Plaintiff commenced this action against, inter alia, Defendants, asserting causes of action sounding in negligence and strict products liability. Plaintiff broadly alleges that the helmet was defectively designed and manufactured, and contained insufficient warnings at the time it left Defendants’ manufacturing facilities. Plaintiff further asserts causes of action for breach of express and implied warranties, negligent misrepresentation, fraud, and punitive damages.
Defendants now move to dismiss all causes of action asserted against them[.] Defendants argue that the danger of wearing this helmet without using the “D-rings” was open and obvious, and therefore they had no duty to warn Plaintiff of that danger, or to design the helmet so as to eliminate that danger. In addition, the record reveals that Plaintiff had substantial prior experience with using motorcycle helmets, and therefore he knew or should have known about the risks of failing to properly secure the helmet. Defendants thus contend that the absence of any warning could not have been the legal cause of Plaintiff’s injuries.
Defendants further argue that Plaintiff’s Second Amended Complaint and discovery responses fail to adequately state a claim predicated upon a design defect or manufacturing defect. The complaint only makes bare, conclusory allegations, and the discovery responses only allege that the helmet failed to properly indicate to the user that he or she needed to use the “D-rings” to secure the helmet. Defendants argues that this is merely a “repackaged” failure to warn claim, and not a viable “design defect” claim. Regarding the “manufacturing defect” claim, Defendants state the Plaintiff seems to allege that the plastic snaps were not sufficiently strong to act as a retention system itself. Defendants argue, however, that the owner’s manual indicated that the snap clip was not designed to be the primary retention system, and thus there is no defective manufacture of that snap or the straps. In addition, Defendants contend that Plaintiff’s breach of express and implied warranty claims must be dismissed due to the open and obvious nature of the hazard, and the fact that any express warranty was not available to second-hand users like Plaintiff. Defendants further allege that Plaintiff’s negligent misrepresentation and fraud claims must be dismissed as inadequately plead, and moreover, Plaintiff never relied on any statements made by Defendants when he made the decision to purchase and use the helmet. Finally, Defendants assert that Plaintiff’s claims alleging that they are jointly and severally liable for his injuries based on their allegedly reckless misconduct must be dismissed because the underlying substantive claims of misconduct are not viable.
In opposition to the motion, Plaintiff argues that the record raises issues of fact as to whether Defendants knew that this helmet was unreasonably dangerous yet they failed to make a feasible, safer alternative. Plaintiff provides an affidavit and report from a professional engineer who inspected the helmet and reviewed Defendants’ United States Patent application for the chin strap as well as other publically-available studies and reports. He opined that the helmet was defective with respect to both its design and the efficacy of its warnings. Specifically, the expert found that the positioning of the plastic snap fastener on the chin strap, directly above the double D-ring, can be misconstrued to be a part of the helmet’s retention system. He further found that there was no warning on the helmet itself describing how to properly interlace the chin strap through the D-rings in order to protect the wearer’s head. The only place where this information is found is in the owner’s manual. The expert noted that in Defendants’ patent application, Arai’s principal indicated that users of the helmet could possibly misuse the retention system by bypassing the “D-rings,” which is what happened in this case. The expert further referenced independent studies and other reports which found that improper strap use/fastening of helmets are a foreseeable cause of reduced helmet effectiveness and ejection during dynamic loading. Plaintiff also points to deposition testimony from Arai’s representative, who confirmed that Arai held discussions concerning misuse of helmet retention systems. He further confirmed that Arai never considered changing the design of the helmet and noted that all current models carry the same design. Plaintiff also asserts that Defendant has been involved in prior similar lawsuits in other jurisdictions involving the use of Arai helmets. Plaintiff contends that this evidence raises issues of fact as to whether Plaintiff’s misuse of the helmet was not reasonably foreseeable.
Plaintiff’s expert also asserted that a safer reasonable alternative design for this helmet was feasible by simply removing the snap fasteners on the straps so that they could not be mistaken as the primary retention system, by placing a warning label on the helmet itself directing the wearer how to properly use the chin strap, and by using an alternative method to secure the loose flapping end of the chin strap. The expert opined that a reasonable design/warning alternative would have offered a safer product and decreased the likelihood of this injury occurring. Based on all of the foregoing, Plaintiff argues that the dangers associated with by-passing the “D-ring” mechanisms was not so open and obvious so as to relieve Defendants’ duty to offer a reasonably safer alternative design or adequate warnings.
Plaintiff further argues that his claims predicated upon breach of implied warranty, fraud, and misrepresentation must not be dismissed. Breach of implied warranty of merchantability and fitness remains viable in this personal injury action even without privity of contract between Plaintiff and Defendants. He further asserts that Defendants cannot use their own warranties to shield themselves from liability for their own negligent conduct. Plaintiff argues that his negligent misrepresentation and fraud claims are viable because Defendant’s brochures and marketing materials promoted the virtues and quality of the Astrial helmet, and claimed that the helmet was suitable for both race champions and street riders alike. Plaintiff asserts that based on the findings of his expert, however, there is a huge disconnect between these claims and the actual condition of the helmet. He further alleges that the fact that the helmet was “Snell” and DOT-certified did not mean that helmet was reasonably safe.
The failure to warn standard:
“[A] plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product”…A plaintiff may recover against a defendant under this theory where he or she establishes: (1) that a manufacturer has a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was the proximate cause of the plaintiff’s injuries…Manufacturers have a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known…Manufacturers also have a duty to warn of dangers of unintended uses of a product provided these uses are reasonably foreseeable…However, manufacturers have no duty to warn against a hazard that is patently dangerous or poses an open or obvious risk…In other words, “there is no duty to warn product users of obvious risks and dangers — that being those risks and dangers which could have been or should have been appreciated by the user or that can be recognized as a matter of common sense”…”[W]hen a warning would have added nothing to the user’s appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning. On the other hand, the open and obvious defense generally should not apply when there are aspects of the hazard which are concealed or not reasonably apparent to the user”…The “open and obvious” defense is “fact-specific” in nature and “in close cases it is easy to disagree about whether a particular risk is obvious,” therefore “whether a danger is open and obvious is most often a jury question”…”Where only one conclusion can be drawn from the established facts, however, the issue of whether the risk was open and obvious may be decided by the court as a matter of law”[.]
The failure to warn analysis:
The “failure to warn” inquiry focuses on three factors: obviousness of risk from actual use of product, knowledge of the particular user, and proximate cause…It is the plaintiff’s ultimate burden to prove that a defendant’s failure to warn was a proximate cause of the injury[.]
In this case, Defendants argue that they are entitled to summary judgment on Plaintiff’s “failure to warn” claim because “it is common sense that if a motorcyclist fails to secure his helmet, it will come free during a collision,” and Plaintiff’s failure to use available safety mechanisms to secure the helmet created the obvious danger that the helmet would detach. The proper inquiry, however, is whether it was open and obvious that the helmet would detach in an accident if the wearer only used the plastic snap mechanism and not the D-ring straps to secure the helmet to his head…On this record, there are issues of fact as to whether aspects of this hazard were “not reasonably apparent to the user”[.]
Plaintiff knew to keep his helmet on at all times while riding his motorcycle…When he wore the helmet, however, Plaintiff would only use the plastic snaps that joined the straps under his chin. He never used the “D-ring” straps because the helmet felt snug, secure, and tight with only the snaps connected…Plaintiff testified that he believed that using only the plastic snaps was a proper way to affix the helmet to his head…Plaintiff did not state that he was aware of the danger of failing to use the D-ring straps. Plaintiff never noticed any warning on the straps concerning proper use of the retention system…and he never received the owner’s manual and never saw it before this accident occurred…The foregoing indicates that this particular user was not aware of the risk created by failing to use the D-ring strap. Contrary to the contentions found in Defendants’ affirmation of counsel, this court cannot find as a matter of law that the “readily observable appearance and characteristic of the helmet and straps” made it obvious that Plaintiff needed to use the D-rings in order to properly secure the helmet. On this record, it is apparent that more than one conclusion can be drawn on the issue of whether or not the hazard was open and obvious which would negate Defendants’ duty to warn of it.
The design defect legal template:
“‘[A] defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce’”…In order to state a products liability claim predicated upon a defective design, a plaintiff must demonstrate that (1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing plaintiff’s injury…For purposes of analyzing these claims, theories of strict liability and negligence are virtually identical…When analyzing whether or not a design defect exists, an inquiry must be made into such factors as “(1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes”[.]
The design defect analysis:
In this case, Defendants first contend that the danger inherent to the design of the helmet was open and obvious and thus this claim must be dismissed. However…it was not obvious that only using the plastic snap mechanism to secure the helmet was improper. Furthermore, liability under a “design defect” theory is not precluded merely because a danger is obvious…The obviousness of the danger is only a factor to consider when evaluating whether a plaintiff exercised reasonable care[.]
Defendants next argue that Plaintiff has failed to adequately allege a defect in the design of the Arai helmet and its retention system. The complaint claims that the helmet was defective in design and manufacture because it “lured motorcyclists, and particularly plaintiff herein, into a false sense of security when using said helmet, when in fact is was inadequate to protect its user from serious injuries which would result from its failure”…In discovery responses, Plaintiff alleged that the design was defective because the D-ring fastener was close to the plastic snap fastener device which lured wearers to reasonably believe that either the D-ring or the plastic snap device could be used as a retention system. Plaintiff also claimed that a “safer alternative design” would have “employed a helmet retention system that adequately separated the ‘D-ring’ fastener from the end strap plastic snap fastener device[.]
Defendant argues that these allegations, even if true, do not support a design defect cause of action because the crux of the allegation is not a defect in design of the product, but a purported failure to indicate to him how to properly secure the helmet. In other words, he improperly repeats his failure to warn claims in the guise of a design defect claim. This court disagrees and finds that Plaintiff has adequately alleged the existence of a design defect in the helmet, independent of his claim that the helmet was defective because of its lack of warnings. The allegations found in Plaintiff’s complaint and discovery responses, when broadly construed, adequately allege that the helmet as designed — taking into account the location of the straps and fasteners — posed a substantial likelihood of harm, that a reasonably safe alternative was available, and that the design of the product was a substantial factor in causing his injuries…Furthermore, in opposition to the motion, Plaintiff submits an affidavit from an expert professional engineer Eliot Stern who examined the helmet and opined, among other things, that it was dangerously designed due to the presence and positioning of plastic snap fasteners, which could have been misconstrued as being a part of the helmet retention system when they were not. He notes that Arai’s own patent application indicated that Arai was aware of this issue but never changed the design of the helmet. He alleges that a safer feasible alternative design was available, as Defendants could have, among other things, simply removed the plastic snap from both halves of the chin strap so that they could not be mistaken for the helmet’s primary retention system. Plaintiff’s contentions and submissions in opposition to the motion satisfy the elements of a “design defect” cause of action and are not merely reformulated or repackaged “failure to warn” claims. Defendants’ moving papers, on this issue, fail to conclusively establish a defense to Plaintiff’s design defect claim as a matter of law[.]
The manufacturing defect legal template:
In order to demonstrate a “manufacturing defect under either negligence or strict liability, a plaintiff must show that a specific product unit was defective as a result of `some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction,’ and that the defect was the cause of plaintiff’s injury”…A defectively manufactured product does not conform to its intended design, nor does it conform to the great majority of the products manufactured in accordance with that design…The “decisive issue” in a manufacturing defect case is the existence of the defect without regard to the care exercised by the manufacturer…“To establish a claim based on a manufacturing defect, a plaintiff must prove that the product did not perform as intended and that it was defective at the time it left the hands of the manufacturer”…”In contrast, ‘[w]here a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed’”[.]
The manufacturing defect legal analysis:
In this case, Plaintiff’s complaint generally alleges that existence of a manufacturing defect…and his discovery responses allege that the helmet used inferior material in making the plastic snap fastener and using a plastic fastener that was weak and prone to fail and cause the helmet to be ejected upon impact. However, Plaintiff failed to claim that the product did not conform to its intended design, or that the materials used to make it were actually defective, or that the deficiencies of the helmet were due to some mishap in the manufacturing process or improper workmanship. Plaintiff’s expert affirmation and report fails to allege that the helmet’s manufacture deviated from Defendant’s specifications or design. Absent such allegations, Plaintiff has failed to set forth a viable cause of action for defective manufacture[.]
The breach of express warranty claim:
To establish a prima facie product liability cause of action predicated upon a breach of express warranty, a plaintiff must prove that the defendant made a specific statement of fact or promise, and that plaintiff relied on that statement or promise…In this case, deposition testimony establishes that he did not rely on any express writings or promises by Defendant before purchasing or using the subject helmet. Plaintiff testified that he purchased the helmet from a second-hand seller, and he never obtained the owner’s manual…and he never saw any advertisements for Arai helmets…Plaintiff bought the helmet at the same time he was buying a motorcycle. He only bought the helmet because the seller had him try it on, and told him that he could take it along with the motorcycle…In opposition papers, Plaintiff “concedes the inapplicability” of his breach of express warranty claim.
The breach of implied warranty claim:
Defendants failed to carry their initial burden…with respect to Plaintiff’s cause of action for breach of implied warranty. In a personal injury matter, contractual privity is not required to sustain this cause of action for breach of implied warranty…Plaintiff has adequately set forth a product liability cause of action predicated upon the existence of a design defect, and the alleged defect and/or danger associated with use of the product was not open and obvious. Plaintiff’s complaint also adequately alleges that the helmet breached Defendants’ implied warranty of merchantability…Defendants’ moving papers fail to establish as a matter of law that the helmet, as designed, was “fit for the ordinary purposes for which such goods are used” and thus did not breach the implied warranty of merchantability and fitness[.]
The negligent misrepresentation and fraud claims:
“In order to make out a prima facie case of fraud, the plaintiff must show that there has been misrepresentation of material facts, falsity, scienter, reliance and injury”…In this case…Plaintiff admitted at deposition that he purchased this helmet second-hand, and he never relied on any statements made by Defendants in making the decision to purchase and use it. Plaintiff therefore has no viable cause of action for fraud…Plaintiff’s negligent misrepresentation cause of action also fails on these grounds, as under the common law, a plaintiff must show that he or she detrimentally relied on a defendant’s false statements…In addition, Plaintiff’s cause of action for negligent misrepresentation must be dismissed because there was no contractual privity between himself and Defendants…Plaintiff’s opposition papers fail to raise an issue of fact with respect to contractual privity or Plaintiff’s lack of reliance on allegedly false statements made by Defendants. These causes of action are therefore dismissed.
Narvaez v. Wadsworth, 2018 NY Slip Op 06475 (1st Dept., October 2, 2018)
Supreme Court denied defendant’s motion for summary judgment dismissing the complaint:
The Appellate Division summarized the facts:
Plaintiff was injured in a motorcycle accident, in which the helmet he was wearing, allegedly manufactured and distributed by defendants, came loose from and failed to protect his head. The helmet’s chin strap consisted of a long strap on one side of the helmet that was joined with a short strap on the other side. On the short strap were two D-rings through which the long strap could be threaded. Above the D-rings was the receiving half of a snap fastener, which, together with the “mating” half on the long strap, could be used to fasten the long strap to the short strap. Plaintiff had attempted to secure the helmet to his head using only the snap fastener.
Affirming and concluding that:
The motion court correctly declined to dismiss his claims against defendants for strict products liability and negligence, based on theories of design defect and failure to warn, and breach of the implied warranties of fitness and merchantability.
* * *
The court correctly rejected defendants’ contention that the danger of failing to secure the helmet with the D-rings was open and obvious as a matter of law and that therefore it did not render the helmet unfit for its intended use and they had no duty to warn of the danger or to design the helmet differently. That a danger is open and obvious does not preclude a design defect claim…Defendants similarly failed to establish that the design of the chin strap did not breach their warranties of fitness and merchantability[.]
While there is no duty to warn of a hazard that is open and obvious and “readily apparent as a matter of common sense”…the record presents issues of fact as to whether the danger of failing to use the D-rings and using only the snap fastener to secure the helmet is open and obvious[.]
Brown v. State of New York, 2018 NY Slip Op 04029 (Court of Appeals June 7, 2018)
The Court of Appeals summarized the facts:
In April 2003, Wayne Brown was driving a Harley-Davidson Fat Boy motorcycle north on Route 350 with his wife, Linda Brown, as a passenger. Henry Friend had stopped his pickup truck at the stop sign on Paddy Lane where it intersects Route 350. He looked north, then south, then north again before pulling into the intersection. The Browns’ motorcycle collided with Mr. Friend’s truck, killing Mr. Brown and injuring Ms. Brown. Ms. Brown, in separate claims against the State (as administratrix of her husband’s estate and on her own behalf), sought damages for wrongful death and for her own injuries. She alleged that the accident occurred as a result of the improper design of the intersection, an excessive speed limit on Route 350, and inadequate signage at the intersection; she also alleged that the State acted negligently by not taking any corrective action in response to complaints about the intersection’s danger.
Between 1995 and 1999, there had been 14 right-angle collisions at the intersection of Route 350 and Paddy Lane. At the Town of Ontario’s request, the Department of Transportation…began studying the intersection in 1999. DOT never completed its study and took no remedial action. Ms. Brown’s expert testified that the appropriate corrective action would have been to place a four-way stop sign at the intersection. DOT’s expert stated that the installation of a four-way stop sign would have been a measure of last resort, to be considered if other less restrictive measures were insufficient.
The prior proceedings:
After trial, the Court of Claims held that the State had breached its duty by failing to complete the study and take any remedial action, but dismissed the claims for lack of proximate cause, because Ms. Brown had failed to prove that a four-way stop sign was necessary and would have been installed in time to prevent the accident. The Appellate Division reversed, holding that Ms. Brown needed to show only that the dangerous condition was a proximate cause of her injury, and had no burden to prove that the State would have installed a four-way stop sign before the date of the accident. Two dissenting justices would have required Ms. Brown to show “what corrective action should have been taken by defendant and that such corrective action would have been completed before and would have prevented the accident.”
On remittal, the Court of Claims found that the dangerous condition was a proximate cause of the accident. The court held the State 100% liable for the accident, finding that Mr. Friend was not negligent because he “carefully entered the intersection after looking both ways, but simply was unable to see the motorcycle…at any time before the accident occurred.” The State appealed from the final judgments awarding damages, and the Appellate Division affirmed[.]
The State’s argument:
The State argues that its breach was not a proximate cause of the accident, because Ms. Brown failed to prove that a four-way stop sign would have been installed before the accident and would have prevented it. Alternatively, the State argues that some fault should be apportioned to Mr. Friend, because he would have seen the motorcycle had he acted with reasonable care, and because his violation of the Vehicle and Traffic Law demonstrates his negligence.
As to proximate cause:
We first address whether the Appellate Division’s standard for proximate cause was correct — i.e., what did Ms. Brown have to prove? The Appellate Division properly characterized the inquiry: “whether the dangerous condition of the intersection because of the vertical curve in the line of sight looking south from Paddy Lane, combined with the speed limit of 55 miles per hour and the absence of four-way stop signs at the intersection, may be deemed a proximate cause of the accident.” The court thus held that Ms. Brown was required to show “that the absence of safety measures contributed to the happening of the accident by materially increasing the risk, or by greatly increasing the probability of its occurrence.”
We have never required accident victims to identify a specific remedy and prove it would have been timely implemented and prevented the accident…The relevant inquiry was whether the “City’s failure to conduct a traffic calming study and to implement traffic calming measures was a substantial factor in causing the accident”[.]
Here, there is record support for the finding that the State’s breach was a proximate cause of the accident. It is undisputed that there was a pattern of right-angle accidents at the intersection. It is also undisputed that the State did not complete the traffic study, reduce the speed limit on Route 350, change the design or signage, or take any steps whatsoever to attempt to improve safety at the intersection. The other affirmed findings of fact — that the vertical curve created visibility problems; that Mr. Friend stopped and looked both ways; that Mr. Friend was unable to see the motorcycle approaching; that no one was speeding — are beyond our review.
Once on notice of the dangerous condition, it was the State’s burden to take reasonable steps in a reasonable amount of time. Instead, it did nothing. That right-angle collisions would continue to occur absent the adoption of some safety measure is hardly surprising. “[T]he most significant inquiry in the proximate cause analysis is often that of foreseeability”…Where, as here, the risk of harm created by the defendant corresponds to the harm that actually resulted, we cannot say that proximate cause is lacking as a matter of law.
As to apportionment:
The State argues that some fault should be apportioned to Mr. Friend. First, the State claims that Mr. Friend “failed to see claimant’s approaching motorcycle even though he should have seen it in the exercise of reasonable care.” Ms. Brown’s expert did testify that a driver at the intersection looking south on Route 350 would see the top third of an approaching northbound vehicle — though not specifically a motorcycle — from 897 feet away, and the entire vehicle from 550 feet away. Mr. Friend testified that he was familiar with the intersection, and that the time between when he looked south and when the collision occurred was about five to ten seconds.
However, those facts do not compel a conclusion that Mr. Friend was negligent as a matter of law. The Court of Claims found that Mr. Friend “carefully entered the intersection after looking both ways, but simply was unable to see the motorcycle operated by [claimant’s husband] at any time before the accident occurred.” The record contains evidence supporting that conclusion: Mr. Friend’s testimony that he stopped at the stop sign and looked both ways but did not see the motorcycle before entering the intersection; the expert testimony that drivers in Mr. Friend’s location could not see cross-traffic because of the vertical curve; and the history of right-angle accidents at the intersection.
The State also claims that Mr. Friend was at fault because he was convicted of failing to yield the right of way…Even assuming the conviction is admissible, a VTL violation does not itself establish negligence, when, as the court found here, the driver has exercised reasonable care in an effort to comply with the statute…There is evidence from which the court could have properly concluded that Mr. Friend used reasonable care, and we cannot disturb that factual determination.
Russell v. J.L. Femia Landscape Servs., Inc., 2018 NY Slip Op 03721 (2nd Dept. May 23, 2018)
Supreme Court granted defendant’s motion for summary judgment dismissing the complaint in an action to recover damages for personal injuries when Lance L. Russell collided with the rear of a vehicle owned by J.L. Femia Landscape Services, Inc. while operating a motorcycle.
The Appellate Division summarized the legal standard:
“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle”…“[A] rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision”[.]
The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint. On their motion, the defendants submitted, inter alia, the certified, verified written statements Femia and nonparty eyewitness Nathaniel Archibald made to the police…which were the equivalent of statements made under oath…and the deposition testimony of Femia and Archibald. This evidence demonstrated that the defendants were not at fault in the subject rear-end collision…In opposition to the defendants’ prima facie showing, the plaintiff neither proffered a non-negligent explanation for the rear-end collision nor raised a triable issue of fact as to whether Femia was at fault in the happening of the accident.
Markwardt v. Town of Hartford, 2018 NY Slip Op 51285(U) (Sup Ct. Washington Co., September 7, 2018)
Supreme Court, in addressing the Town’s motion for summary judgment, summarized the action:
[suit arises from an]
accident which occurred while plaintiff was operating his motorcycle in a southerly direction on Burch Road in the Town of Hartford, County of Washington, State of New York[.] As he rounded a bend on Burch Road north of the intersections of Darfler Road and Old Castle Green Lane, he lost control, left the roadway and crashed. The Town claims it is entitled to summary judgment due to (a) lack of prior written notice of any dangerous condition on the subject highway; (b) a lack of a special use or defect created by an affirmative act of negligence and (c) that there are no design, construction, signage or maintenance deficiencies on Burch Road that would have caused or contributed to the accident.
The allegations of the complaint:
Plaintiff has alleged that the Town “negligently designed, constructed, maintained, signed and repaired this portion of Burch Road. More precisely, it is alleged that the Town, (a) negligently permitted the application of a shim course or a true and leveling course of asphalt to the existing surface of the roadway, (b) permitted loose stones to exist on the surface of the roadway and, (c) permitted a significant drop off with regard to the right shoulder of the roadway. Finally it is alleged that the Town failed to warn the public of these conditions.
Markwardt’s description of the accident:
The plaintiff describes traveling on Burch Road at approximately 45 miles per hour as he approached the site of accident where “[t]here was a slight curve [in the road] with a grading. . .” According to the plaintiff he was seventy-five feet away from the curve at the point he first observed it, maintaining his speed with visibility so clear “you could see out to the horizon towards Vermont.” As he reached the curve the motorcycle slid sideways and the rear tire kicked to the left. As plaintiff attempted to correct the slide by bringing his bike back upright and leaning to the left the motorcycle “tires grabbed, slipped off the pavement and came down.” Although plaintiff did not know what caused the rear tire to kick out he described “two different colors of pavement” as he “came into the corner” of the roadway and believes this was a cause of his accident.
The Town’s response:
In May of 2013, approximately three months prior to the accident, the Town retained a third party contractor to place a shim course on Burch Road at the area of this accident resulting in an elevation difference of 1/8” to 3/16. Similar shim courses were placed at four other locations on Burch Road north of the accident location. The motion proponent includes an expert’s opinion that the shim course conformed to the NYSDOT Guidelines and Standards.
Local Law No. 1:
Town of Hartford Local Law No.1 of 1995, Chapter 87-1 provides that no civil action shall be maintained against the Town absent prior written notice of the condition. More specifically:
No civil action shall be maintained against the Town of Harford, New York, or the Hartford Town Superintendent of Highways for damages or injuries or property sustained by reason of any highway . . . being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition of such highway was actually given to the Town Clerk or Town Superintendent of Highways and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of.
The legal template:
It is well settled that where, as here, a municipality has enacted a prior written notice statute pertaining to its thoroughfares or sidewalks, it cannot be held liable unless such written notice of the allegedly defective or dangerous condition was actually given…Here, defendant sustains its initial evidentiary burden by submitting the affidavit of its Town Clerk indicating that she conducted a search of the relevant records covering the period prior to the date of the accident and found no written notice of a defective condition corresponding to that alleged by the plaintiff[.]
The Town’s submission of this proof through an affidavit of a municipal clerk is sufficient to demonstrate a lack of prior written notice…The Town has established a prima facie case that it did not receive prior written notice of a defective condition.
The shifting burden of proof:
The burden has thus shifted to plaintiff to raise an issue of material fact regarding the applicability of a recognized exception to the prior written notice requirement”…With that said, there are two recognized exceptions to the prior written notice requirement: (1) where the municipality has created the defect through its affirmative negligence; or (2) where a special use of the property has conferred a special benefit upon the municipality…As to the first exception the affirmative negligence exception “is limited to work by the
that immediately results in the existence of a dangerous condition”…The Town, anticipating that plaintiff would frame the question as one of the municipality having affirmatively created a defect through an act of negligence in order to escape the prior written notice requirements supports the summary judgment motion with an expert who opines that there were no design, construction, maintenance or traffic control deficiencies on Burch Road at — and approaching — the accident site. Also, that the Town acted appropriately to ensure a smooth riding surface was provided on Burch Road when it placed this asphalt shim course to correct irregularities in the existing pavement surface. The expert extensively cites the Town’s compliance with New York State Department of Transportation maintenance guidelines and standards as well as highway sign provisions of the Manual of Uniform Traffic Control Devices.
While movant again meets it’s burden of establishing a prima facie entitlement warranting summary judgment plaintiff also approaches, with equally competent evidence, the question of a defective condition having been affirmatively created by the Town.
Plaintiff’s expert offers opposing opinions also extensively citing specific Work Zone Traffic Control For Local Roads Standards, and current versions of the New York State Department of Transportation Highway Design Manual, the New York State Department of Transportation Standard Specifications, the New York State Department Highway Maintenance Guidelines; the American Association of State Highway Officials policies on geometric designs of rural highways, the Manual of Uniform Traffic Control Devices, as well as referencing the Cornell Local Roads Program, all of which the expert describes as authoritative in the highway engineering field and providing guidelines for both rural town and county roadways. With similarly competent evidence in admissible form plaintiff sufficiently establishes the existence of material issues of fact mandating that a trial is necessary on specifically whether the Town affirmatively created a dangerous condition[.]
While the Court recognizes the affirmative negligence exception “is limited to work by the [municipality] that immediately results in the existence of a dangerous condition”…it is clear that some of the defects alleged such as the existence of an uneven surface, the drop-off depth, or the adequacy of signage — if that is what the finder of fact should conclude — are conditions that would, one presumes, have existed immediately upon the completion of the repair work. Put otherwise, there are triable issues of fact as to whether the application of the shim course on Burch Road “immediately result[ed] in the existence of a dangerous condition” that caused plaintiff’s accident[.]
Saltalamacchia v. Town of E. Hampton, 2018 NY Slip Op 32604(U) (Sup. Ct. Suff. Co., October 12, 2018)
Supreme Court, in entertaining defendant’s motion for summary judgment dismissing the complaint and plaintiff’s motion for summary judgment on the issue of liability, summarized the claims:
The plaintiff Thomas Saltalamacchia commenced this action to recover damages for personal injuries allegedly caused by a single-motorcycle accident that occurred on April 2, 2006, on Town Lane in East Hampton, New York. The accident allegedly occurred when the motorcycle that the plaintiff was riding left the roadway as plaintiff attempted to negotiate a sharp curve. The plaintiff alleges, among other things, that defendant Town of East Hampton…negligently designed, maintained, and constructed the roadway; that it failed to place correct warning signs on the road sufficient to alert users to the full extent of the curve and instead posted noncompliant, improper and inadequate signs that misrepresented both the direction and the severity of the curve, thereby creating a dangerous condition on the road; and that such negligence on the part of the Town was a proximate cause of his accident and resulting injuries.
The pending motions:
The Town now moves for summary judgment dismissing the plaintiff’s complaint on the ground that its alleged failure to post proper or adequate signs was not the proximate cause of the plaintiff’s accident…The plaintiff opposes the motion, and cross-moves for summary judgment on the issue of liability.
The testimony and submissions on plaintiff’s behalf:
The plaintiff’s testimony at the…hearing…was largely, but not entirely, the same as his deposition testimony taken over three-and-a-half years later. The plaintiff testified that he was born in 1963, he started riding a motorcycle when he was in high school, he possessed a Class M license, and he rode approximately 3,000 miles on the subject motorcycle before the accident. On the day of the accident, the plaintiff and several other people were riding as a group. The group stopped for lunch at approximately noon, and plaintiff testified that he did not consume any alcohol. After lunch, they traveled west on Town Lane, and stopped at a cul-de-sac where the roadway ended. The men stretched and talked before returning eastbound on Town Lane. While riding, the plaintiff observed that the speed limit was 20 miles per hour. He was shown two photographs of road signs along Town Lane, and he acknowledged that both photographs depicted signs that he observed along the miles-long route before he approached the curve where the accident occurred. Both signs bore directional arrows, one showing a moderate curve to the right and then a straightening of the road, the other showing a moderate curve to the left and then a straightening of the road, along with a speed limit warning of 20 miles per hour and a “driveway” warning sign. Plaintiff testified that he slowed down to the posted 20 miles per hour as he approached the second sign, the one that bore the moderate curve to the left; when the road “opened up again,” proceeding in a straight direction down a hill, he returned to a 25 to 30 mile per hour speed. The road then curved to the right, however, and then sharply to the left; plaintiff applied his brakes but was unable to keep his motorcycle upright on the roadway and he was thrown from it as it traveled into the adjoining area. Another rider, who had been traveling behind plaintiff but who had lost sight of him on the curved and hilly section of the road, stopped and came to plaintiff’s aid.
At his…hearing, plaintiff testified that immediately before the accident, he was traveling between 25 and 30 miles per hour because the road had “opened up,” and at his deposition, he testified that he was traveling approximately 20 miles per hour or less. There were some riders ahead of the plaintiff, but when he approached the curve, he could not see the riders. After the roadway opened up, the plaintiff traveled down a hill and saw a “stop ahead” sign. Shortly after observing the stop ahead sign, he approached the bottom of the hill where there was a “90-degree swoop,” which was not “marked.” When the plaintiff applied his brake, he was ejected from the motorcycle, landed “on the back of
neck,” and the motorcycle went into a gully. The plaintiff testified that he did not observe any potholes in the road, the signs that he saw were not in disrepair, and it was a clear day.
John Shultz testified that although he was riding his motorcycle behind the plaintiff when the accident occurred, he did not witness the accident. He lost sight of the plaintiff for approximately two seconds when the plaintiff rode through the curve. Shultz testified that the plaintiff “couldn’t negotiate the street,” and although initially he offered the opinion that plaintiff was “driving too quickly for the conditions,” he also testified that he did not believe that speed had “anything to do with the accident, “that “we weren’t proceeding very quickly,” and that plaintiff wasn’t able to negotiate the curve because “he didn’t realize that the turn was going to be so severe . . . . “In fact, plaintiff and Shultz were the last two riders in the group. The roadway was “challenging” because it had a lot of turns. The plaintiff was “possibly” traveling 30 miles per hour, and Shultz found it “odd” that the plaintiff had his feet on “the cruising bars instead of [the] control bars” when he approached the curve. The roadway was “well marked,” and when he arrived at the top of the hill before the curve, Shultz stopped because he could not see “where the road went.” He observed one road sign that indicated that the speed limit was 20 miles per hour, and he recalled that another showed an arrow that indicated a severe turn. Shultz believed that the plaintiff had traveled with the group on the same roadway prior to the accident on at least one occasion, and when the group stopped for lunch at approximately noon, each rider, including the plaintiff, had at least one alcoholic beverage.
In support of his cross-motion and in opposition to the Town’s motion, the plaintiff submits his own affidavit, in which he states that while traveling eastbound on Town Lane, he observed a “posted yellow warning sign that indicated that there would be an `easy’ curve to the left and then back to the right.” He also observed that the speed limit was reduced from 30 miles per hour to 20 miles per hour. Approximately four-tenths of a mile after the sign, the roadway had a “hairpin turn to the left.” He states that the road first curved right and then “hard” left, without warning. Because he was not familiar with the roadway, the sign completely confused him and caused him to be unprepared for the sharp turn to the left inasmuch as the sign warned of a curved roadway but was placed four-tenths of a mile before any curve and the curves of which it warned — a “slight” turn to the left followed by a “slight” turn to the right — were virtually the opposite of the actual roadway configuration — “an easy right but with a hard almost 90 degree turn to the left.” The plaintiff states that “if the road had been properly marked, I would have had proper warning and I would not have had the accident.”
The affidavit of a licensed engineer:
In an affidavit, Steven Cane, a licensed engineer in the State of New York, avers that he reviewed the police report, visited the scene of the accident, and performed scientific tests to determine within a reasonable degree of scientific certainty that the accident was caused by incorrect and inadequate road signs. He stated that a W1-7 curve sign was incorrectly placed at the accident site in violation of the New York State Manual of Uniform Traffic Control Devices…whereas a W1-9 sign would have been more appropriate, and at minimum, a W1-5 sign should have been used. The W1-7 sign incorrectly indicated a change of direction of less than 45 degrees; the last curve, where the accident occurred, however, encompassed over a 90-degree change in direction. Further, because “the terrain conceals the end of the turn,” there should have been single-arrow (W1-11) or chevron (W1-13) signs on the curve itself, to “provide additional emphasis” and “to indicate the abrupt nature of the curve.” Cane concluded that the Town’s incorrect and inadequate signage caused the plaintiff’s accident.
The testimony of the highway superintendent:
At a deposition, Scott King testified that he was the highway superintendent for the Town, and in that position — to which he was elected subsequent to plaintiff’s accident — he was responsible for the maintenance of the roads and signs for the Town. He further testified that although at the time of plaintiff’s accident, he was the Town’s Deputy Highway Superintendent, his responsibilities at that time did not include roadway signage. He testified that if the Town received a complaint about a roadway, it would “investigate and correct, if necessary,” and that the [Manual] would be used to determine the proper curve warning signs for roadways within the Town. The Town had not, however, received any complaint about the subject roadway prior to the plaintiff’s accident.
The legal template:
“Although the State[, county, or municipality] is not an insurer of the safety of persons using its highways, it may be held liable for injuries arising by reason of its failure to give adequate warning, by signs or otherwise, of dangerous conditions and hazards on its highways”…“Generally, the absence of a warning sign cannot be excluded as a cause of an ensuing accident unless it is found that the accident would nevertheless have happened”…A finding that the accident would have happened regardless of a warning sign “can only be made if the driver’s awareness of the physical conditions prescribed the same course of action as the warning sign would have”…Additionally, if the driver, by reason of his recollection of prior trips over the same road actually had the danger in mind as he approached it on the highway, or if other signs gave adequate warning of the danger, the absence of a warning was not the proximate cause of the accident…Importantly, “[t]he liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria”[.]
Here, the Town has failed to make a prima facie showing of entitlement to judgment as a matter of law. Although it is the Town’s contention that on the undisputed facts, the Town’s alleged failure to provide proper roadway signage was not the proximate cause of plaintiff’s accident and resulting injuries, plaintiff’s allegation is not solely that the signage was insufficient or inadequate, but that it was materially incorrect and misleading, misdescribing both the direction and the severity of the roadway’s curves, particularly the direction and severity of the curve upon which plaintiff lost control of his motorcycle, which, he avers, “completely surprised” him and for which he “was not prepared” as a result of the allegedly incorrect and inadequate signage. Thus, although the Town argues, in effect, that it is irrelevant, with respect to proximate cause, whether or not the posted signage was accurate and proper because, in its view, “the sign that was posted provided warning and notice of the danger ahead” — i.e., a “bend in the roadway” — and that therefore plaintiff was provided with “`all the warning, all the notice of danger’”…that proper signs would have provided, that argument does not address plaintiff’s contention that it was the misdepiction of the direction and severity of the roadway’s curves, and not the fact that the roadway curved, to which he attributes his inability to maintain control of his motorcycle …[T]he issue of proximate causation in the current action is more akin to that posed in…also involving an injured motorcyclist, where the appellate division found that “the absence of the curve sign was a substantial causative factor in the sequence of events which led to claimant’s injury”…As the court observed, in answer to the State’s contention that other safety devices — delineators, reflectors and pavement markings — were sufficient to guide plaintiff, who had traveled the same route twice before during daylight hours, but never at night, along the unilluminated curved entry ramp to the point where it merged with another ramp:
The State failed in its duty to protect claimant against the event which in fact took place. A curve sign would have given claimant notice and reminded him of the oncoming curve while he was still a few hundred feet from the danger. It would have jogged his memory as to the severity and general configuration of the curve and alleviated the claimant’s momentary confusion as to the highway layout immediately prior to the accident.
Denying the motion to dismiss and concluding that:
Here, the actual configuration of the roadway was concealed from plaintiff’s view by the terrain…and plaintiff alleges that the accident would not have occurred had proper, and not allegedly improper and incorrect, signage been posted by the Town. Whether that is so, or whether the accident and plaintiff’s resulting injuries were entirely the result of other causes, and therefore would have occurred even if the signage plaintiff claims was required had been posted, involves contested factual issues that can only be resolved by the trier of fact. Thus, on the facts presented, the Town has failed to establish, prima facie, that its alleged negligence was not a proximate cause of plaintiff’s accident[.]
Ming-Fai Jon v. Wager, 2018 NY Slip Op 07304 (2nd Dept. October 31, 2018)
Supreme Court denied plaintiff’s motion for summary judgment on the issue of liability in an action to recover damages for personal injuries.
The Appellate Division described the prior proceedings:
The plaintiff Ming-Fai Jon…allegedly was injured when a motorcycle he was operating collided with a vehicle operated by the defendant Lucia Wager and leased by the defendant William Wager…The collision took place at the intersection of Avenue O and West 6th Street in Brooklyn. At the time of the collision, the injured plaintiff was traveling east on Avenue O, and Lucia Wager was traveling west on Avenue O and turning left onto southbound West 6th Street. Subsequently, the injured plaintiff, and his wife suing derivatively, commenced this action against the defendants and another party. The plaintiffs moved for summary judgment on the issue of liability insofar as asserted by the injured plaintiff. The Supreme Court denied the motion[.]
The legal template:
Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle that is within the intersection or so close to it as to constitute an immediate hazard[.]
Reversing and concluding that:
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that Lucia Wager violated Vehicle and Traffic Law § 1141 when she made a left turn directly into the path of the injured plaintiff’s motorcycle. Lucia Wager was negligent in failing to see what was there to be seen, and in attempting to make a left turn when it was hazardous…Regardless of who entered the intersection first, the injured plaintiff, as the driver with the right-of-way, was entitled to anticipate that Lucia Wager would obey traffic laws which required her to yield…In opposition, the defendants failed to submit evidence sufficient to raise a triable issue of fact as to whether Lucia Wager had a nonnegligent explanation for colliding with the injured plaintiff’s motorcycle…Contrary to the defendants’ contention, the statement contained in the injured plaintiff’s medical record as to how fast his motorcycle was traveling at the time of the collision was not admissible as an admission, since the source of the information was not identified and it did not contain information that was germane to his diagnosis or treatment[.]
Coward v. Consolidated Edison, Inc., 2019 NY Slip Op 50105(U) (Sup. Ct. Q. Co., January 25, 2019)
Supreme Court entertained various motions in an action in which Coward sustained serious physical injuries while operating his motorcycle on Springfield Boulevard in Queens.
Plaintiff was electrocuted by three overhead electrical wires owned and maintained by Con Edison that wrapped around his neck. Con Edison impleaded Verizon.
Supreme Court summarized the facts:
As noted, the plaintiff was severely injured by electrical wires owned and maintained by Con Edison. According to the plaintiff, an investigation revealed that a truck driving by Springfield Boulevard, near 109th Avenue, came in contact with an electric power line belonging to Con Edison. The plaintiff had the misfortune of driving his motorcycle through that location soon thereafter. The plaintiff contends that Con Edison was negligent in causing his injuries “because the utility wires did not meet the minimum height requirement for power lines in residential areas.”
The third-party action:
In bringing this third-party action, Con Edison maintains that Verizon is either directly or partially responsible for this incident. Specifically, Con Edison alleges that “various Con Ed employees [can] testify that the Con Ed wires had been pulled down because communication wires which are lower on the utility pole had been improperly tied to the higher Con Edison wires.” Con Edison further contends that a passing truck came into contact with and “pulled down the communication wire, [which], in turn, pulled down the Con Ed wire to which it was attached.”
The pending motion:
The plaintiff contends that Con Edison has “delayed in bringing this third-party action for almost four years despite being aware of a potential claim against Verizon . . . since the date of this accident on July 3, 2014, and purposefully did not start [this] third-party action until the eve of trial.” Plaintiff further contends that he would be severely prejudiced because he would be required to appear for a second deposition and have to respond to multiple discovery demands. In support of the claim that Con Edison delayed this case intentionally, the plaintiff’s attorney represents that Con Edison’s attorney contacted her by telephone on January 17, 2017, and by e-mail on January 24, 2017, to inform her that the wire of a cable company, whom he had not yet identified, had been improperly tied to Con Edison’s electrical wire, and that this entity was responsible, in whole or, in part, for this incident.
Con Ed’s response:
In response, Con Edison claims that the communication was intended to alert the plaintiff’s attorney, before the expiration of the statute of limitations, of the existence of a necessary defendant in this case. Con Edison’s attorney further represents that the third-party action was not filed with the intent to prejudice the plaintiff.
Instead, Con Edison represents that it took time to identify the responsible communications provider. Specifically, Con Edison’s counsel notes that depositions had not yet been conducted in this case and that he did not learn that Verizon owned and/or maintained the subject cable wire until, May 2, 2018, at which time the latter responded to a subpoena issued on April 26, 2018. On July 30, 2018, almost three months after learning that Verizon was the cable company responsible for tying the cable wires to the power line, Con Edison commenced the instant third-party action.
In the case before this Court, it took Con Edison almost four years before it filed the third-party action. The Court finds that the delay in this case “rise[s] to the level of . . . knowing and deliberate delay . . .” by Con Edison…Here, Con Edison was on notice on the date of the instant accident that a third-party cable or communications company had tethered its cable lines to Con Edison’s power lines. Although Con Edison claims that the identity of this entity was not known until May 9, 2018, when Verizon disclosed certain information pursuant to a subpoena, the Court finds that this excuse does not reasonably explain the excessive delay in commencing the third-party action.
Here, Con Edison does not disclose what efforts, if any, were made prior to May 9, 2018 to ascertain the identity of that cable provider. Given the length of the delay, Con Edison was required to explain why it took so long to identify Verizon as the party responsible for this accident. The Court, therefore, finds that Con Edison has not provided a reasonable justification for bringing the third-party action almost fours years after the main action was commenced…In the absence of a reasonable excuse, this Court can only conclude that Con Edison knowingly and deliberately delayed filing the third-party action…For this reason, dismissal, albeit without prejudice, is warranted…In making this determination, the Court notes that this is not the first time in this case that Con Edison has engaged in the delay of this trial. In that respect, the Court notes a pattern of delay in Con Edison’s conduct. Specifically, this Court had to issue a previous order compelling Con Edison to comply with discovery as to information it had, in fact, previously agreed to provide the plaintiff, pursuant to two separate so-ordered stipulations. In addition, Con Edison failed to comply with its obligation of notifying the plaintiff before it served the subpoena on Verizon, as required by law.
Con Edison excuses its conduct as an “oversight.” The Court might be willing to accept such an excuse under different circumstances. In this case, however, Con Edison obtained information from Verizon, and then waited two months before filing the third-party action. In sum, instead of providing notice of the subpoena it was going to serve on Verizon, Con Edison filed a third-party action. This is another example of Con Edison’s intentional conduct toward delaying the trial of this action, to the prejudice of the plaintiff.
This case has been in the trial scheduling part since August 20, 2018. Thus, this case is trial-ready. Discovery, however, has not yet been completed on the third-party action. The plaintiff will be subjected to further discovery and Verizon will be entitled to depose the plaintiff…In that respect, the Court notes that the plaintiff has shown that the third-party action has, prejudiced his rights to a reasonably swift trial.
The Court notes that “a trial court’s discretion to sever [or dismiss] third-party claims should be sparingly exercised when the multiple claims share a close factual connection “and the interests of judicial economy and consistency of verdicts will be served by having a single trial.”…The plaintiff has been waiting over four years for his day in court. For this Court to allow this third-party action to continue would unduly delay this case, thus prejudicing the plaintiff…This is especially true given that the note of issue, previously stayed in this case to allow for discovery to continue, was lifted in August, 2018[.]
Under the circumstances of this case, the Court finds that the prejudice to the plaintiff resulting from the inevitable delay that will be caused by the completion of discovery, outweighs “the interests of judicial economy and consistency of verdicts that would be served by having a single trial.”…This is especially true where Con Edison has engaged in a pattern of delay in this case.
Jung v. Glover, 2019 NY Slip Op 01066 (2nd Dept., February 13, 2019)
In an action to recover damages for personal injuries, Supreme Court denied plaintiff’s motion for summary judgment and dismissed defendants’ affirmative defenses.
The Appellate Division summarized the facts:
The plaintiff was sitting on the passenger seat of a motorcycle operated by the defendant Harry Jung when the motorcycle collided with a van operated by the defendant David Glover. The van was owned by the defendant ARI Fleet LT…and leased to Glover’s employer, the defendant Daikin Applied Americas, Inc.…Prior to the collision, Jung was driving the motorcycle straight in a southerly direction, and Glover, who was driving the van in a northerly direction, was attempting to make a left turn.
The prior proceedings:
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in the accident.
Subsequently, the plaintiff moved for summary judgment on the issue of liability and dismissing various affirmative defenses asserted by the defendants. In an order entered July 10, 2017, the Supreme Court granted the plaintiff’s motion to the extent that it determined that the plaintiff was free from comparative fault, and denied the motion in all other respects. The plaintiff moved for leave to reargue those branches of her motion which were for summary judgment on the issue of liability against Glover, ARI, and Daikin, and dismissing various affirmative defenses raised by all of the defendants. In an order entered January 8, 2018, the court, among other things, upon reargument, adhered to the determinations in the prior order denying those branches of the plaintiff’s motion which were for summary judgment on the issue of liability against Glover, ARI, and Daikin, dismissing the first, second, fourth, sixth, and eighth affirmative defenses asserted by those defendants, and dismissing the second and fourth affirmative defenses asserted by Jung. The plaintiff appeals.
Upon reargument, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against Glover. In support of the motion, the plaintiff submitted, inter alia, the deposition testimony of Glover, Jung, and a nonparty witness. While there were some discrepancies between Glover’s account of the accident and the accounts of Jung and the nonparty witness, even under Glover’s account of the accident, he was negligent in attempting to make a left turn when the turn could not be made with reasonable safety, in violation of [the Vehicle and Traffic Law]. In opposition, Glover, ARI, and Daikin failed to raise a triable issue of fact. The right of the plaintiff, as an innocent passenger, to summary judgment is not “restricted by potential issues of comparative negligence” which may exist as between Glover and Jung[.]
Moreover, upon reargument, the Supreme Court also should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against Daikin under the theory of vicarious liability. Daikin, which leased the van at issue for more than 30 days, was an owner of the van within the meaning of [the Vehicle and Traffic Law] and Daikin did not dispute that Glover was operating the van during the course of his employment[.]
We agree with the Supreme Court’s determination, upon reargument, adhering to its prior determination denying that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against ARI. The plaintiff failed to establish, prima facie, that the Graves Amendment did not apply to this case…”The Graves Amendment provides, generally, that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle by reason of being the owner of the vehicle for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)’”…Contrary to the plaintiff’s contention, Glover’s deposition testimony did not unequivocally show that ARI was responsible for maintaining the subject van. Indeed, at one point during the deposition, Glover testified that he was responsible for maintaining the van, which had been assigned to him by Daikin. For the same reasons, we agree with the court’s determination, upon reargument, adhering to its prior determination denying that branch of the plaintiff’s motion which was for summary judgment dismissing the first affirmative defense asserted by Glover, ARI, and Daikin, which addressed the issue of the applicability of the Graves Amendment.
Upon reargument, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment dismissing the second affirmative defense asserted by Glover, ARI, and Daikin pursuant to [the Insurance Law]. The plaintiff established, prima facie, that as a passenger of a motorcycle, she was not a covered person who was entitled to recover first-party benefits under the Insurance Law, and that the issue of whether she had sustained a serious injury was immaterial…Glover, ARI, and Daikin failed to raise a triable issue of fact in this regard[.]