Alexandra R. v. Krone

• Decision Date: 20 August 2020
• Docket Number: 105,CA 19-00761
• Citation: 186 A.D.3d 981,129 N.Y.S.3d 579
• Parties: ALEXANDRA R., Alexis R., Sr., as Parent and Natural Guardian of Alexis R., Jr. and Yamaris R., and as Administrator of the Estate of Christieann G., and Demaris M., as Guardian of Jaicob G. and Jaiden G., and as Administrator of the Estate of Luis a., Jr., Deceased, Plaintiffs-Respondents, v. Eric J. KRONE, Defendant-Appellant, et al., Defendants. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 981

129 N.Y.S.3d 579

ALEXANDRA R., Alexis R., Sr., as Parent and Natural Guardian of Alexis R., Jr. and Yamaris R., and as Administrator of the Estate of Christieann G., and Demaris M., as Guardian of Jaicob G. and Jaiden G., and as Administrator of the Estate of Luis a., Jr., Deceased, Plaintiffs-Respondents,

v.Eric J. KRONE, Defendant-Appellant, et al., Defendants. (Appeal No. 1.)

105

CA 19-00761

Supreme Court, Appellate Division, Fourth Department, New York.

August 20, 2020

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment insofar as appealed from is reversed on the law without costs and the amended complaint is dismissed against defendant Eric J. Krone.

Memorandum: On a morning in April 2013, a minivan carrying 10 occupants on the New York State Thruway drifted from the left travel lane to the shoulder and collided with the back of a dump truck operated by Eric J. Krone (defendant), a New York State Thruway Authority (Thruway Authority) employee, who had parked the truck on the shoulder during a cleanup operation in which two other employees were picking up debris in the median. Three of the occupants died, and the remaining occupants, as well as defendant, sustained injuries. Plaintiffs, consisting of the occupants and their representatives, commenced these actions alleging, inter alia, that the collision was caused by defendant's recklessness. In these consolidated appeals, defendant appeals from judgments entered upon a nonjury verdict finding him partially liable for the collision on the ground that he acted with reckless disregard for the safety of others.

In each appeal, defendant challenges the verdict on the ground that Supreme Court's finding that he acted with reckless disregard for the safety of others is against the weight of the evidence. As a preliminary matter, we conclude that defendant was not required to preserve his contention that the nonjury verdict is contrary to the weight of the evidence by making a postverdict motion. Such a requirement is inconsistent with the principle that, "[f]ollowing a nonjury trial, the Appellate Division has ‘authority ... as broad as that of the trial court ... and ... may render the judgment it finds warranted by the facts’ " ( Sweetman v. Suhr , 159 A.D.3d 1614, 1615, 72 N.Y.S.3d 756 [4th Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152819 [2018], quoting Northern Westchester Professional Park Assoc. v. Town of Bedford , 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983] ; see Baba-Ali v. State of New York , 19 N.Y.3d 627, 640, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012] ). To the extent that any of our prior decisions suggest otherwise, they should no longer be followed (see e.g. Gaiter v. City of Buffalo Bd. of Educ. , 125 A.D.3d 1388, 1389, 999 N.Y.S.2d 786 [4th Dept. 2015], lv dismissed 25 N.Y.3d 1036, 10 N.Y.S.3d 519, 32 N.E.3d 956 [2015] ).

Upon our review of the record, we conclude that the weight of the evidence does not support the court's determination that defendant acted with reckless disregard for the safety of others as required to impose liability against him under Vehicle and Traffic Law § 1103 (b), the applicability of which is not disputed by the parties. "[T]he unambiguous language of Vehicle and Traffic Law § 1103 (b), as further supported by its legislative history, [makes] clear that the statute exempts from the rules of the road all vehicles ... which are ‘actually engaged in work on a highway’ ..., and imposes on such vehicles a recklessness standard of care" ( Deleon v. New York City Sanitation Dept. , 25 N.Y.3d 1102, 1105, 14 N.Y.S.3d 280, 35 N.E.3d 448 [2015] ). The imposition of liability under the recklessness standard, which the Court of Appeals has described as a "minimum standard of care" ( id. at 1106, 14 N.Y.S.3d 280, 35 N.E.3d 448 [internal quotation marks omitted]; see Riley v. County of Broome , 95 N.Y.2d 455, 466, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000] ), "demands more than a showing of a lack of ‘due care under the circumstances’—the showing typically associated with ordinary negligence claims" ( Saarinen v. Kerr , 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994] ). Rather, "liability under [the recklessness] standard is established upon a showing that the covered vehicle's operator has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" ( Deleon , 25 N.Y.3d at 1105, 14 N.Y.S.3d 280, 35 N.E.3d 448 [internal quotation marks omitted]; see Riley , 95 N.Y.2d at 466, 719 N.Y.S.2d 623, 742 N.E.2d 98 ).

Here, at the time of the collision, defendant had parked the truck entirely outside of the travel lane approximately 18 inches to the left of the yellow fog line on or near the rumble strips located on the shoulder. Defendant had also activated multiple hazard lights on the truck, which consisted of regular flashers, two amber lights on the tailgate, beacon lights, and four flashing caution lights on the arrow board. Moreover, the undisputed evidence established that there were no weather, road, or lighting conditions creating visibility or control issues for motorists on the morning of the incident. Even if, as the court found, defendant knew or should have known that vehicles occasionally leave the roadway at a high rate of speed due to motorists being tired, distracted, or inattentive, we conclude that, here, it cannot be said that defendant's actions were of an "unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and ... done ... with conscious indifference to the outcome" ( Deleon , 25 N.Y.3d at 1105, 14 N.Y.S.3d 280, 35 N.E.3d 448 [internal quotation marks omitted] ), given the favorable weather and road conditions for motorists, as well as the safety precautions taken by defendant in positioning the truck completely off of the travel lane and activating various hazard lights (see Sullivan v. Town of Vestal , 301 A.D.2d 824, 825, 753 N.Y.S.2d 607 [3d Dept. 2003] ; Green v. Covington , 299 A.D.2d 636, 637-638, 750 N.Y.S.2d 162 [3d Dept. 2002] ; see also Vehicle and Traffic Law former § 1144-a [b]; see generally Roberts v. Anderson , 133 A.D.3d 1384, 1385, 19 N.Y.S.3d 843 [4th Dept. 2015] ).

Plaintiffs nonetheless contend, and the court agreed, that defendant was reckless because Thruway Authority safety regulations require vehicles parked on the shoulder to be positioned "as far from traffic as feasible," and defendant could and should have parked the truck farther to the left on the grassy median and his positioning also rendered the rumble strips useless. We reject plaintiffs' contention and the court's conclusion. Even if defendant, despite his belief that he was in compliance with the regulation by positioning the truck as far from traffic as feasible without getting stuck in wet ground on the median, could have positioned the truck even farther to the left and off of the rumble strips, that failing establishes, at most, a lack of due care under the circumstances, which is insufficient to impose liability under the recklessness standard (see Green , 299 A.D.2d at 638, 750 N.Y.S.2d 162 ; Mitchell v. State of New York , 108 A.D.2d 1033, 1034-1035, 486 N.Y.S.2d 97 [3d Dept. 1985], lv denied 64 N.Y.2d 611, 490 N.Y.S.2d 1024, 479 N.E.2d 827 [1985], appeal dismissed and lv denied 64 N.Y.2d 1128, 490 N.Y.S.2d 189, 479 N.E.2d 825 [1985] ).

Based on the foregoing, we reverse, insofar as appealed from, the judgments in appeal Nos. 1, 2, and 3 and reverse the judgment in appeal No. 4.

All concur except Nemoyer and Curran, JJ., who dissent and vote to affirm in the following memorandum:

We agree with the majority that defendant-appellant (defendant) was not required to preserve his challenge to the weight of the evidence underlying Supreme Court's nonjury verdict (see Evans v. New York City Tr. Auth. , 179 A.D.3d 105, 108-111, 113 N.Y.S.3d 127 [2d Dept. 2019] ). We cannot, however, join the majority in holding the verdict to be against the weight of the evidence in light of the significant proof supporting the trial judge's conclusions. We therefore respectfully dissent and vote to affirm the judgment in each appeal.

We recognize, of course, that we should "set aside the trial court's findings if they are contrary to the weight of the evidence and [thereupon] render the judgment we deem warranted by the facts" ( Mosley v. State of New York , 150 A.D.3d 1659, 1660, 55 N.Y.S.3d 554 [4th Dept. 2017] [internal quotation marks omitted]; see e.g. Sweetman v. Suhr , 159 A.D.3d 1614, 1615, 72 N.Y.S.3d 756 [4th Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152819 [2018] ). When conducting our factual review power in a "close case," however, the Court of Appeals has instructed us to "tak[e] into account ... ‘the fact that the trial judge had the advantage of seeing the witnesses’ " ( Northern Westchester Professional Park Assoc. v. Town of Bedford , 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983] ). It has also been held that we should "view[ ] the evidence in the light most favorable to sustain the judgment" ( A & M Global Mgt. Corp. v. Northtown Urology Assoc., P.C. , 115 A.D.3d 1283, 1287, 983 N.Y.S.2d 368 [4th Dept. 2014] ), and that a civil bench verdict should be upheld "unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence" ( Thoreson v. Penthouse Intl. , 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992], rearg denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [1993] [internal quotation marks omitted] ).

In this case, the trial court found that defendant's "operation of the ... truck on the shoulder of the road only 18 inches from high-speed traffic was intentional, unreasonable and in disregard of a known or obvious risk that was so great as to...