Dance v. Town of Southampton

• Decision Date: 26 September 1983
• Citation: 95 A.D.2d 442,467 N.Y.S.2d 203
• Parties: Samuel DANCE, et al., Appellants, v. TOWN OF SOUTHAMPTON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 203

467 N.Y.S.2d 203

95 A.D.2d 442

Samuel DANCE, et al., Appellants, v. TOWN OF SOUTHAMPTON, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1983.

Kelly & Jiras, Westhampton Beach, and David Jaroslawicz, New York City (Robert Kelly, Westhampton Beach, of counsel), for appellants.

Mulholland, Minion, Roe & Clifford, Williston Park (Michael Majewski and Joseph D. Ahearn, New York City, of counsel), for respondent.

Before DAMIANI, J.P., and LAZER, MANGANO and THOMPSON, JJ.

LAZER, Justice.

At the completion of a trial on the issue of liability in this negligence action against the Town of Southampton, the jury found the town free of fault and judgment was entered in the town's favor. We conclude that the gravity of certain trial errors and the interests of justice compel reversal and a new trial.

I

On October 7, 1979, plaintiff Samuel Dance drove his Ford Pinto southerly on a road that intersected Bridgehampton Turnpike at a narrow angle. Immediately after the Pinto entered the southbound lane of Bridgehampton Turnpike it was struck from behind by a Town of Southampton police car and the consequence to Dance was quadriplegia. Among the principal issues at the trial were the speed and manner in which the police car had been driven and whether Dance had stopped at a yield sign before entering the southbound lane of Bridgehampton Turnpike, which is a two-lane highway.

Dance testified that he stopped at the yield sign before entering the turnpike and that the police car did not come into his view until he was fully in the southbound lane of traffic. On cross-examination he admitted that prior to the collision several surgical procedures had been performed on his right knee, but he insisted that his ability to drive was unaffected. This contention was supported by Dance's orthopedist who testified that his patient's ability to drive was unimpaired by the knee injury. The town's orthopedist was of a contrary view, declaring that the range of motion of Dance's knee would have been substantially restricted, that leg movements between pedals would have caused pain, and that the ability to apply braking force would have been sharply diminished. The fact that Dance had not reported his condition to the Commissioner of Motor Vehicles became a major focus of the town's defense.

Dance's case was buttressed by the testimony of Roy Surprise who claimed to have been driving south on Bridgehampton Turnpike just prior to the accident when he saw a southbound police car pass a station wagon in a nonpassing zone. Upon the approach of a northbound vehicle, the police car--proceeding at about 65 miles per hour--made a hasty return to the southbound lane which Dance had just entered and the collision ensued. Surprise stopped at the accident scene but did not report his story until about a year after the occurrence. The driver of the station wagon testified that the police car passed her at least a half mile before the scene of the accident. Another witness, whose home was adjacent to the turnpike, testified that he saw Dance stop at the yield sign "for maybe a second or two" before entering the turnpike.

The driver of the police car, Officer William Beyer, presented yet another version of the incident when he told the court that Dance had entered the highway without stopping at the yield sign and then decreased the speed of his car until it almost came to a halt. Beyer claimed that his own speed was only 50 miles per hour, and that he had slammed on his brakes as soon as he saw Dance's car but was unable to avoid the collision.

The accident reconstruction experts were in partial conflict. Plaintiffs' engineer concluded that the police car had been traveling at 62 miles per hour before it started braking and that its speed at impact was 35 miles per hour, while Dance's was about 25 miles per hour. Defendant's expert agreed with the conclusion as to the impact speeds, but contended that the police car's speed before braking was between 49 and 55.4 miles per hour. It was his belief that Dance had not stopped at the yield sign because a Pinto could not have reached the point of impact at a speed of 25 miles per hour if it had stopped. The other evidence in the case was subject to conflicting inferences.

The jury determined that the town had not been negligent.

II

On appeal, plaintiffs argue that the trial court committed reversible error when, in dealing with Dance's failure to report his knee condition to the Commissioner of Motor Vehicles, it charged the jury that a violation of subdivision 4 of section 506 of the Vehicle and Traffic Law was negligence per se for which Dance was to be held liable if the violation was the proximate cause of the accident. Subdivision 4--which was read to the jury--provides that:

"Any person holding a license issued pursuant to this chapter who suffers permanent loss of use of one or both hands or arms or of one or both feet or legs, or one eye shall, before operating any motor vehicle or motorcycle make report thereof to the commissioner, who shall take such reasonable action as may be proper under the provisions of this section."

The court also charged that a violation of subdivision 9 of section 509 of the Vehicle and Traffic Law would constitute negligence. That subdivision provides that "[w]henever notice of disability is required to be given to the commissioner as required by this article, no person shall operate any motor vehicle unless such notice has been given." During its deliberations, the jury requested that both sections of the Vehicle and Traffic Law be repeated. Having failed to except to these charges at the trial, plaintiffs now assert that subdivision 4 of section 506 applies solely to the total loss of use of a limb and not a partial loss as was the case with Dance's leg. Whether a partial loss must be reported to the commissioner if it substantially affects a person's ability to drive (see, also, Vehicle and Traffic Law, § 404-a, subd. 3) is an issue we need not reach, for we conclude that the sections charged do not create a statutory duty of care for the benefit of individual motorists. Therefore, it was error for the trial court to invoke the doctrine of negligence per se in connection with either section.

Under common law, a person is negligent when he fails to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances. When a statute designed to protect a particular class of persons against a particular type of harm is invoked by a member of the protected class, a court may, in furtherance of the statutory purpose, interpret the statute as creating an additional standard of care (see Trimarco v. Klein, 56 N.Y.2d 98, 108, 451 N.Y.S.2d 52, 436 N.E.2d 502; Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814; Restatement, Torts 2d, § 286; 1 PJI [2d ed.], pp. 152-153). Violation of such a statutory standard, if unexcused, constitutes negligence per se so that the violating party must be found negligent if the violation is proved (see, generally, 2 Harper & James, Law of Torts, § 17.6; Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317; Lowndes, Civil Liability Created by Criminal Legislation, 16 Minn.L.Rev. 361; Morris, The Role of Criminal Statutes in Negligence Actions, 49 Col.L.Rev. 21; James, Statutory Standards and Negligence in Accident Cases, 11 La.L.Rev. 95). Negligence per se is not liability per se, however, because the protected class member still must establish that the statutory violation was the proximate cause of the occurrence (see Martin v. Herzog, supra; Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn.L.Rev. 105, 111).

Whether a statutory requirement creates a standard of care is frequently a matter of judicial construction (see Morris, The Relation of Criminal Statutes to Tort Liability, 46 Harv.L.Rev. 453). Where a regulatory statute contains no reference to a civil remedy for its violation, the method most frequently used by the judiciary to justify recognition of a standard of care is to discern an implied or presumed legislative intent to create such a standard. A more satisfactory explanation for judicial recognition of such a standard, however, is furtherance of the statute's underlying policy for the protection of certain individuals (see Prosser, Torts [4th ed.], p. 191; 2 Harper & James, Law of Torts, § 17.6, pp. 994-995). Where the statute codifies an already existing common-law rule or where the conduct prohibited is closely related to common-law negligence, a violation of the statute is often regarded as negligence per se (Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn.L.Rev. 105, 109-110). But where the statutory requirement constitutes a departure from common-law standards, the doctrine of negligence per se should be applied flexibly rather than rigidly, for rigid application may impose liability upon violators who are free from fault in any real sense and the result may be substantial civil damages totally disproportionate to the relatively small penalty prescribed by statute (James, Statutory Standards and Negligence in Accident Cases, 11 La.L.Rev. 95, 108; Morris, The Relation of Criminal Statutes to Tort Liability, 46 Harv.L.Rev. 453, 458). Thus, the terms of a regulatory statute should not receive automatic construction as a standard of care in negligence litigation, for judgment should be exercised as to the appropriateness of the statute for that purpose (James, Statutory Standards and Negligence in Accident Cases, p 119).

A prime illustration of flexibility of application is to be found in the judicial attitude toward vehicular licensing statutes. Almost universally, licensing statutes are not regarded as creating a duty to individual highway travelers or pedestrians (see Prosser, Torts [4th ed], p 193; Gregory, Breach of Criminal Licensing Statutes in Civil...