Dillon v. Humphreys

• Decision Date: 08 March 1968
• Parties: Thomas J. DILLON et al., Plaintiffs, v. Edith HUMPHREYS, Defendant.
• Court: New York Supreme Court

Page 14

288 N.Y.S.2d 14

56 Misc.2d 211

Thomas J. DILLON et al., Plaintiffs, v. Edith HUMPHREYS, Defendant.

Supreme Court, Special Term, Suffolk County, Part I.

March 8, 1968.

Zinman & Chetkof, Hicksville, for plaintiffs.

Benson & Morris, Plainview, for defendant.

MEMORANDUM

STANISLAW, Justice.

Plaintiffs in a negligence action move to dismiss the answer and refer the matter to a trial term for assessment of damages. The motion, in effect, is for summary judgment and will be treated as such. The action is for personal injuries sustained by plaintiffs as a result of an automobile collision.

The facts and circumstances surrounding the accident are not in dispute. They were stated by defendant, during her examination before trial, as follows: On the evening of October 1, 1966, defendant was driving a 1953 Buick, which she had purchased about two weeks prior to the occurrence. She was alone in the car, drove about four miles in a northerly direction, along Saxon Road and then proceeded to enter Montauk Highway, which is a four lane roadway, with two eastbound lanes and two westbound lanes, divided by a solid white line. She made a right turn into Montauk Highway, heading in an easterly direction, and continued for about two car lengths. She then crossed over into the westbound lane, collided with a Volkswagen (driven by a person not a party to this lawsuit) and then struck plaintiffs' automobile, also in the westbound lane. Immediately prior to the impact, she was moving eastbound and observed plaintiffs' vehicle moving westbound. At the time of the occurrence it was dark and raining but her windshield wipers were not operating and her headlights were not on. Her brakes were in good operating condition, but she did not apply them, nor was she skidding. As stated in defendant's own words: 'I had never driven the car after dark. I was trying to get the windshield wiper on. Also I was fumbling to get the lights on because I didn't have the headlights on. I had my head down and I lost control of the car and I had my head down, trying to get the windshield wiper and right headlights on.'

Plaintiff Thomas J. Dillon, furnished the following facts at his deposition, which were not refuted: He was driving his Dodge Dart on Montauk Highway, in a westerly direction and well over in the westbound lane. His headlights were on and his windshild wipers were in operation. The only passenger in his vehicle was his wife, plaintiff Mary K. Dillon, who was seated beside him. His vehicle was traveling about fifteen or twenty feet behind the Volkswagen. He first observed defendant's car when it was ten to fifteen feet away, coming straight at him from the opposite direction. Defendant's car struck the front center of his vehicle, in the westbound lane. He and his wife were removed from the scene by ambulance and taken to a hospital. Plaintiff Mary K. Dillon testified, at her deposition, that she did not see defendant's car before the accident. The facts relating to the nature and extent of plaintiff's injuries will not be discussed, since this motion is directed only to the issue of liability.

The moving papers include an affidavit by the passenger plaintiff (realleging the facts of the accident), an affidavit by her attorney and the transcript of defendant's deposition. The answer admits ownership, operation and control but otherwise denies the material allegations of the complaint.

Defendant submits no opposing affidavit. The answering papers include only the transcript of plaintiff's deposition and a statement by defendant's attorney, in affidavit form. In essence, however, it is a memorandum of law. It does not refute the facts of the accident, but refers to admissions made by both plaintiffs in their depositions to the effect that they failed to wear the seatbelts, available in their car for their protection. He contends the motion must be denied since the following two questions should be decided by the jury: (1) does plaintiffs' failure to use the available seatbelts constitute contributory negligence; and (2) was the plaintiff driver guilty of contributory negligence in not observing defendant's vehicle until it was 10 to 15 feet away from him and directly in his path.

The question raised in the opposing papers relating to the issue of the plaintiff driver's contributory negligence in the operation and control of his vehicle may involve issues of fact unknown to defendant and peculiarly within the knowledge of the plaintiff driver, justifying submission to a jury (Rodriguez v. Gambetta, 52 Misc.2d 189, 274 N.Y.S.2d 563). Moreover, on a motion for summary judgment, the record must be looked at most favorably to the party asserting a right to trial and 'even where there is no dispute about how an accident occurred, the presence or absence of negligence (or contributory negligence) often remains a question of fact which requires a trial under traditional principles of the law of negligence' (Cooper v. Greyhound Bus Corporation, 13 A.D.2d 173, 174, 215 N.Y.S.2d 281, 283). The motion, therefore, is denied with respect to the plaintiff driver, Thomas J. Dillon. The second question, which relates to plaintiffs' failure to use seat belts, will therefore be confined to the passenger plaintiff's cause of action.

We know of no reported case, in this state, dealing with the effect of a plaintiff's failure to use seat belts, on the issue of contributory negligence in an automobile collision case. Defendant's counsel refers us to a South Carolina case (Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154, 15 A.L.R.3d 1423), involving a motion to strike certain allegations from the answer relating to plaintiff's failure to use an available seat belt. Reversing an order of the court below, the appellate court held that (p. 470, 148 S.E.2d p. 155): 'the ultimate questions raised by the alleged defense should be decided in the light of all of the facts and circumstances adduced upon the trial, rather than being decided simply on the pleadings'. In that case, however, plaintiff was a passenger in a car owned and operated by her husband and the claim was asserted against her husband. In the instant case, although plaintiff was also a passenger in her husband's car, the claim is asserted against the driver of another vehicle. There is no indication, in...