Darmento v. Pacific Molasses Co., Inc.

• Decision Date: 21 May 1992
• Citation: 183 A.D.2d 1090,583 N.Y.S.2d 688
• Parties: Anthony M. DARMENTO et al., Appellants, v. PACIFIC MOLASSES COMPANY INC. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 688

583 N.Y.S.2d 688

183 A.D.2d 1090

Anthony M. DARMENTO et al., Appellants, v. PACIFIC MOLASSES COMPANY INC. et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 21, 1992.

Peter W. Mitchell, Cazenovia, for appellants.

Mackenzie, Smith, Lewis, Michell & Hughes (Stephen S. Davie, of counsel), Syracuse, for respondents.

Before WEISS, P.J., and MIKOLL, LEVINE, CREW and MAHONEY, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (Tait Jr., J.), entered July 30, 1991 in Madison County, which granted defendants' motion for summary judgment dismissing the complaint.

Viewed most favorably to plaintiffs, the evidence revealed that on January 20, 1989 plaintiff Anthony M. Darmento (hereinafter Darmento) was driving south on State Route 13 with his wife, plaintiff Matilda T. Darmento, in the Town of De Ruyter, Madison County. The road was icy, slippery and completely covered with snow. While plaintiffs were driving down Route 13 at about 30 miles per hour, defendant Walter J. Finlay Sr., who was employed by defendant Pacific Molasses Company Inc. as a truck driver, pulled up behind plaintiffs' vehicle with his tractor trailer. The distance between the two vehicles was about one car length for some three to four miles. Darmento was aware of the truck's presence and apparently disconcerted about the proximity of the truck behind him. When Darmento started into a right curve in the road, plaintiffs' vehicle slid from the southbound lane of traffic across the center line and into the northbound lane of traffic, crashed into and bounced off of a guardrail, and slid back across Route 13 into the southbound lane of traffic where it collided with the front of the rear tandem of the tractor trailer.

In April 1990, plaintiffs commenced this action against defendants seeking damages for personal injuries sustained by Matilda Darmento in the motor vehicle accident. After issue was joined and depositions were taken, defendants moved for summary judgment dismissing plaintiffs' complaint on the ground that there was no evidentiary proof which demonstrated that they were the proximate cause of the personal injuries sustained. Supreme Court granted defendants' motion and dismissed the complaint. This appeal by plaintiffs ensued.

We reverse. Defendants contend, and we agree, that there is no evidence from which a jury could reasonably conclude that Finlay's actions caused plaintiffs' vehicle to slide out of control into the guardrail on the opposite side of the road. There is, however, evidence that Finlay was following too closely and that he did not have his vehicle under control. Finlay testified that when he observed plaintiffs' vehicle sliding out of control, he attempted to stop his truck but could not do so because it began to "jackknife". In order to arrest that process, instead of bringing his vehicle to a stop Finlay accelerated, pulled his vehicle to the right and then came to a stop, during the process of which plaintiffs' vehicle collided with his. Thus, there are present factual and credibility issues with regard to whether Finlay was tailgating plaintiffs' vehicle and did not have his vehicle under control, thereby preventing him from stopping his vehicle in time to avoid the collision. Unquestionably, Finlay's alleged negligence is not the sole cause of the accident. The failure of Darmento to have his vehicle under proper control is a proximate cause of the accident, as found by Supreme Court. It is axiomatic, however, that there may be more than one proximate cause of an accident (see, e.g., Sweet v. Perkins, 196 N.Y. 482, 485, 90 N.E. 50). In the case at bar, we cannot say, as a matter of law, that Finlay's conduct did not contribute to the happening of the accident. Summary judgment was, therefore, not appropriate.

ORDERED that the order is reversed, on the law, with costs, and motion denied.

WEISS, P.J., and MIKOLL, J., concur.

LEVINE, Justice (dissenting).

We find no view of the evidence under which any possibly negligent conduct of defendant Walter J. Finlay Sr., the driver of the tractor trailer with which plaintiffs' car collided, contributed to the happening of this accident. Both drivers testified at their examinations before trial that they were proceeding south on State Route 13 at a speed of 30 to 35 miles per hour and that the road was slippery. The tractor trailer was 40 feet long, fully loaded with molasses and had a loaded gross weight of 63,000 pounds. We agree with the majority that there was no competent proof that the claimed tailgating by Finlay caused plaintiffs' vehicle to go out of control. Apart from purely conclusory averments, plaintiff Anthony M. Darmento (hereinafter Darmento) never actually testified that his attention was diverted to the tractor trailer following him at the point that he failed to negotiate the 45-degree right curve, after which his car went out of control and careened off the guardrail on the edge of the northbound lane to strike the rear left side of the trailer in the southbound lane.

Despite its conclusion that Finlay's conduct did not cause Darmento to lose control of his car, the majority nonetheless holds that there is evidence presenting a jury question as to whether Finlay's negligence in following too closely (see, Vehicle and...