Barber v. Merchant, 1

• Decision Date: 27 February 1992
• Docket Number: No. 2,No. 1,1,2
• Parties: Robert P. BARBER, Individually and as Administrator of the Estate of Aimee J. Barber, Deceased, et al., Respondents, v. Gertrude MERCHANT et al., Respondents, and David W. Arnold, doing business as Brookview Dairy Farm, Appellant. (Action) Clifford MERCHANT, Individually and as Administrator of the Estate of Trisha M. Merchant, Deceased, Respondent, v. Geoffrey L. MacDONALD et al., Respondents, and David W. Arnold, doing business as Brookview Dairy, Appellant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 573

580 N.Y.S.2d 573

180 A.D.2d 984

Robert P. BARBER, Individually and as Administrator of the Estate of Aimee J. Barber, Deceased, et al., Respondents, v. Gertrude MERCHANT et al., Respondents, and David W. Arnold, doing business as Brookview Dairy Farm, Appellant.

(Action No. 1.)

Clifford MERCHANT, Individually and as Administrator of the Estate of Trisha M. Merchant, Deceased, Respondent, v. Geoffrey L. MacDONALD et al., Respondents, and David W. Arnold, doing business as Brookview Dairy, Appellant.

(Action No. 2.)

Supreme Court, Appellate Division Third Department.

Feb. 27, 1992.

Bouck, Holloway, Kiernan & Casey (Kevin F. Peartree, of counsel), Albany, for appellant.

McClung, Peters and Simon (Stephen J. Arlington, of counsel), Albany, for Robert P. Barber, respondent.

Connor, Curran & Schram (Paul M. Freeman, of counsel), Hudson, for Clifford Merchant, respondent.

Roemer & Feathersonhaugh (Elizabeth A. Graziane, of counsel), Albany, for Gertrude Merchant, respondent.

Maynard, O'Connor & Smith (Arete Kontogiannis, of counsel), Albany, for Geoffrey L. MacDonald and another, respondents.

Kelleher & Flink (Arieh Mezoff, of counsel), Latham, for Robert C. Schulerud, respondent.

Before WEISS, P.J., and MIKOLL, YESAWICH and CREW, JJ.

WEISS, Presiding Justice.

Appeal from an order of the Supreme Court (Keniry, J.), entered April 15, 1991 in Rensselaer County, which denied defendant David W. Arnold's motion for summary judgment dismissing the complaints and cross claims against him in actions Nos. 1 and 2.

On June 30, 1988, defendant Gertrude Merchant was driving her Dodge automobile north on State Route 9 in the Town of Schodack, Rensselaer County, and came to a stop in the passing lane at the intersection of Maple Hill Road with her left directional signal engaged preparatory to making a left turn to proceed west on Maple Hill Road. At the same time, defendant Robert C. Schulerud was driving his Chevrolet pick-up truck south in the right lane of Route 9 towing a self-unloading hay wagon. Schulerud was working as an employee of Brookview Dairy Farm, a proprietorship owned by defendant David W. Arnold. Arnold was a passenger in the truck. Schulerud brought his truck to a stop at the intersection of Maple Hill Road in preparation for a right turn to also proceed west on Maple Hill Road. Although the pick-up truck had the right-of-way, both Schulerud and Arnold made hand motions to Merchant to proceed with her turn and drive onto Maple Hill Road ahead of the truck. As Merchant was in the process of making her left turn a Chevrolet station wagon, operated by defendant Geoffrey L. MacDonald and owned by his employer, defendant Eden Park Management Inc., traveling south in the passing lane of Route 9, collided with Merchant's car causing fatal injuries to two children, both infants, who were passengers in the rear seat.

The instant wrongful death actions were commenced on behalf of the infants' estates against Merchant, MacDonald, Schulerud and Eden Park in their capacities as the owners and operators of all three vehicles. Arnold was also sued both individually and as owner of Brookview Dairy Farm, on the basis of his hand signal to Merchant and his vicarious liability for the acts of his employee Schulerud. Supreme Court denied a motion by Arnold for summary judgment dismissing the complaints and the cross claims interposed against him by the other defendants in both actions, which were consolidated for trial. Arnold has appealed.

Arnold contends that Merchant's independent visual check of the traffic conditions after the hand signals had been given constituted a superseding cause which, as a matter of law, relieved him of liability for any negligence in giving the signals. He further argues that her intervening negligence precludes a finding that his negligence was the proximate cause of the accident. We disagree. To establish a prima facie case of negligence a "plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666; see, Nallan v. Helmsley-Spear Inc., 50 N.Y.2d 507, 520, 429 N.Y.S.2d 606, 407 N.E.2d 451; Restatement [Second] of Torts § 431). When an intervening act of a third party also contributes to a plaintiff's...