Brust v. McDaniel

• Decision Date: 07 June 2018
• Docket Number: 526110
• Citation: 162 A.D.3d 1196,77 N.Y.S.3d 776
• Parties: Carol A. BRUST, Individually and as Administrator of the Estate of Lindsey J. Pou, Deceased, Appellant, v. Darryl D. MCDANIEL, Respondent.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1196

77 N.Y.S.3d 776

Carol A. BRUST, Individually and as Administrator of the Estate of Lindsey J. Pou, Deceased, Appellant,

v.Darryl D. MCDANIEL, Respondent.

526110

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

Calendar Date: May 1, 2018

Decided and Entered: June 7, 2018

Coughlin & Gerhart, LLP, Ithaca (Dirk A. Galbraith of counsel), for appellant.

Keith D. Miller, Liverpool, for respondent.

Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from an order of the Supreme Court(Faughnan, J.), entered October 12, 2017 in Tompkins County, which granted defendant's motion for summary judgment dismissing the complaint.

One evening in November 2015, defendant was driving northbound in the left lane of State Route 13 in Tompkins County.A vehicle operated by Lindsey J. Pou(hereinafter decedent) was backing out from the median and collided with defendant's vehicle.Decedent sustained personal injuries as a consequence of this accident and thereafter died.Plaintiff commenced this action and, following joinder of issue, defendant moved for summary judgment dismissing the complaint.Supreme Court granted defendant's motion and this appeal by plaintiff ensued.We reverse.

A driver confronted with an emergency situation will not bear liability if the actions taken by the driver are reasonable and prudent in the context of such emergency (seeHubbard v. County of Madison,93 A.D.3d 939, 940, 939 N.Y.S.2d 619[2012], lv denied19 N.Y.3d 805, 2012 WL 2036586[2012];Burnell v. Huneau,1 A.D.3d 758, 760, 767 N.Y.S.2d 163[2003] )."The reasonableness of a driver's actions ... is generally a question of fact and, thus, summary judgment is possible in such cases only when the driver has established that his or her actions were reasonable as a matter of law and no outstanding factual issues remain for jury resolution"( Dumas v. Shafer,4 A.D.3d 720, 722, 772 N.Y.S.2d 411[2004][citations omitted];seeSchlanger v. Doe,53 A.D.3d 827, 828, 861 N.Y.S.2d 499[2008] ).

Defendant testified at his deposition that decedent was moving slowly and that he noticed her move her vehicle from the median into his lane.Defendant tried to slow down, but before he could apply his brakes, decedent's vehicle struck his vehicle.Defendant stated that he was driving no faster than 60 miles per hour prior to the accident.An eyewitness, who was a passenger in a vehicle driving next to defendant, testified, however, that defendant was traveling approximately 70 miles per hour.In response to a question regarding the amount of time that defendant had to react to decedent, the passenger testified that "[a] few seconds" had passed from when decedent's vehicle moved from the median and the ensuing collision.In contrast, defendant stated, "anywhere from 30 seconds to like 15 seconds" elapsed from when he first saw decedent's vehicle and the moment of impact.Furthermore, although defendant could not specifically quantify how far he was when he first saw decedent's vehicle, he stated that "it wasn't far away."Meanwhile, another eyewitness to the accident, who was driving right next to defendant in the right lane, stated that when decedent's vehicle backed into defendant's lane, "maybe 50 yards" separated defendant's vehicle and decedent's vehicle.

Given the conflicting accounts about the distance and the elapsed time between when decedent's vehicle moved into defendant's lane and the collision and defendant's speed prior to the accident, we conclude that triable issues of fact exist as to whether defendant's actions, when confronted with an emergency situation, were reasonable and whether he could have taken...