Caban v. Vega

• Decision Date: 02 April 1996
• Citation: 640 N.Y.S.2d 58,226 A.D.2d 109
• Parties: Raymond CABAN, Plaintiff-Respondent, v. Fernando L. VEGA, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 58

640 N.Y.S.2d 58

226 A.D.2d 109

Raymond CABAN, Plaintiff-Respondent, v. Fernando L. VEGA, et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

April 2, 1996.

Norman Fraiden, for plaintiff-respondent.

Charles C. Keeney, Jr., Carol L. Schlitt, for defendants-appellants.

Before SULLIVAN, J.P., and RUBIN, KUPFERMAN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Alan J. Saks, J.), entered May 9, 1995, upon a jury verdict in favor of plaintiff and against defendants in the amount of $1 million which apportioned liability 95% against the Vega defendants and 5% against the Clarke defendants, unanimously modified, on the law, to vacate the jury's finding of 5% liability against the Clarke defendants and dismiss the complaint as against them, thus resulting in the apportionment of 100% liability against the Vega defendants, and, as so modified, the judgment is otherwise affirmed, without costs.

While there were conflicting accounts at trial of this three car accident, it is undisputed that plaintiff and defendant Barron R. Clarke were both driving westbound on White Plains Road near the intersection of Randall Avenue in the Bronx, while defendant Fernando Vega was proceeding in the opposite direction. There were two lanes of traffic moving in each direction. The accident occurred when Vega's vehicle crossed into the lane in which plaintiff was driving, striking the left side of his car and propelling it into Clarke's lane, where it was then struck by Clarke's automobile or, as Clarke maintains, it slammed into his car.

Clarke had no evidence to offer concerning the contact between the Caban and Vega vehicles, which he never saw. Rather, he testified that he was driving uneventfully along White Plains Road at 10 to 15 miles per hour with not much traffic on the road and nothing out of the ordinary happening until he heard a loud bang, which was the sound of two automobiles colliding. He then purportedly brought his car to an immediate stop, followed, in a "split second", by plaintiff's automobile spinning into his lane and hitting the left front corner of his vehicle. Plaintiff, who claimed to have suffered amnesia and had no recollection of the incident, insists, on the other hand, that Clarke, notwithstanding that the initial collision happened some five or six feet in front of him, failed to notice either the Caban or Vega vehicle and, thus, did not reduce his speed or stop his car in time to prevent the impact.

Regardless of what caused the collision between plaintiff's car and the Vega vehicle, and regardless of whether plaintiff's car then hit Clarke's car or vice versa, it is clear that Clarke under either version of the events was still confronted with an emergency situation that was not within his making or control. While a plaintiff who is entitled to an amnesia jury charge may prevail on a lesser burden of proof, he or she is still required to make a prima facie showing of defendant's fault (see, Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 333-34, 502 N.Y.S.2d 696, 493 N.E.2d 920).

The emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context", and, thus, cannot be expected to adhere to the same...