Bailey v. County of Tioga

• Decision Date: 28 October 2010
• Citation: 77 A.D.3d 1251,910 N.Y.S.2d 230
• Parties: Michelle R. BAILEY et al., Respondents, v. COUNTY OF TIOGA et al., Appellants.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 230 77 A.D.3d 1251 Michelle R. BAILEY et al., Respondents, v. COUNTY OF TIOGA et al., Appellants. Supreme Court, Appellate Division, Third Department, New York. Oct. 28, 2010.

Hickey, Sheehan & Gates, P.C., Binghamton (Gregory A. Cascino of Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger of counsel), for County of Tioga, appellant.

Levene, Gouldin & Thompson, L.L.P., Binghamton (David F. McCarthy of counsel), for Daniel C. Nickerson, appellant.

Ziff Law Firm, L.L.P., Elmira (Adam M. Gee of counsel), for respondents.

Before: MERCURE, J.P., ROSE, MALONE JR., KAVANAGH and STEIN, JJ.

ROSE, J.

Appeal from an order of the Supreme Court (O'Shea, J.), entered June 25, 2009 in Tioga County, which, among other things, denied defendants' motions for summary judgment dismissing the complaint.

[910 N.Y.S.2d 231, 77 A.D.3d 1252]

Plaintiff Michelle R. Bailey (hereinafter plaintiff) was traveling northbound on County Route 5 (also known as Crumtown Road) in the Town of Spencer, Tioga County on a clear, sunny day in June when she crested a hill and collided with a vehicle owned and operated by defendant Daniel C. Nickerson. Nickerson had been traveling southbound on Crumtown Road and was attempting to execute a left-hand turn onto Lang Road, which intersects with Crumtown Road just to the north of the crest of the hill on Crumtown Road. Although the speed limit on Crumtown Road is 55 miles per hour, some distance south of the intersection with Lang Road there is a sign advising a speed of 35 mile per hour for northbound drivers and warning of the upcoming intersection, but not that it is hidden by the crest of the hill.

Plaintiff was familiar with the intersection and testified that she slowed down to 40 miles per hour as she approached it. She could not see it, however, until after she crested the hill and, when she did, Nickerson's vehicle was there in her lane and she had no time to do anything to avoid the collision. For his part, Nickerson also was familiar with the intersection. He testified that he slowed down as he approached it to commence his left turn onto Lang Road, he did not see plaintiff's vehicle until it crested the hill from the south, but by then he had already commenced his turn and he also was unable to avoid the collision.

Plaintiffs commenced this action against Nickerson and defendant County of Tioga seeking to recover damages based on Nickerson's alleged negligent operation of his vehicle and the County's alleged negligent design of the intersection and failure to place appropriate signs and traffic control devices. After joinder of issue and discovery, motions for summary judgment were filed by the parties and denied by Supreme Court. Defendants appeal.

The County argues that the alleged inadequate design and lack of appropriate warning signs on the road cannot beconsidered proximate causes of the accident because of the parties' admitted familiarity with the intersection. We are not persuaded. "Proximate cause is ordinarily a factual issue for resolution by a jury and therefore it is 'only [when] one conclusion may be drawn from the established facts [that] the question of legal cause ... [may] be decided as a matter of law' " ( Dupell v. Levesque, 198 A.D.2d 712, 713, 603 N.Y.S.2d 369 [1993], quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ). Further, "there may be more than one proximate cause of an accident" ( Ayotte v. Gervasio, 186 A.D.2d 963, 964, 589 N.Y.S.2d 372 [1992], affd. 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 [1993] ).

While it is generally true that the failure to provide additional warnings regarding a road condition will not be deemed a proximate cause of an accident where the drivers in question are "well acquainted" with the intersection ( Atkinson v. County of Oneida, 59 N.Y.2d 840, 842, 464 N.Y.S.2d 747, 451 N.E.2d 494 [1983] ), familiarity will not preclude liability as a matter of law where there is...