Hayes v. State
| Citation | 362 N.Y.S.2d 994,80 Misc.2d 385 |
| Decision Date | 31 December 1974 |
| Docket Number | No. 57864,57864 |
| Parties | Ellen HAYES, natural mother and Administratrix of the Estate of Robert W. Hayes, Deceased, Claimant, v. The STATE of New York and Fred Schuster, Defendants. Claim |
| Court | New York Court of Claims |
This is a claim for damages in the amount of $250,000 for the wrongful death of Robert W. Hayes.
On June 15, 1973 at approximately 10:45 p.m., the deceased was struck by a Long Island State Parkway Police car operated by Patrolman Fred Schuster. Patrolman Schuster was proceeding west, at about fifty-five miles per hour, on Ocean Parkway in the vicinity of Oak Beach, Suffolk County, New York when the accident occurred. Ocean Parkway is a four-lane divided highway providing two lanes for eastbound traffic and two lanes for westbound traffic. No lights span the parkway, which has a posted speed limit of fifty-five miles per hour. Patrolman Schuster was travelling in the left lane behind several cars. In order to pass the cars, which were turning left, he pulled into the right lane. As he did so, he saw something lying lengthwise on the road in front of him. He immediately applied his brakes, but struck the object driving over it. He promptly turned his vehicle around to ascertain the identity of the object he had struck. When he returned to the scene of the collision he saw that the object was a person, namely, the decedent and he radioed for assistance.
A subsequent autopsy certified the cause of death as (See State's Exhibit 'A'.)
As can be seen, a portion of the autopsy report has been deleted. At the trial claimant's counsel moved to exclude from evidence any reference to the alcohol analysis of the deceased's blood or urine. The Court reserved decision on that motion. Having now reviewed County Law § 674, subd. 3 par. (b) and the Court of Appeals findings in Cook v. Town of Nassau, 33 N.Y.2d 7, 347 N.Y.S.2d 165, 300 N.E.2d 706, it is this Court's ruling that any reference to the alcohol analysis is inadmissible as evidence and shall be excluded from the trial record. Accordingly, that portion of the autopsy report referring to the alcohol analysis has been deleted.
The State is, of course, liable under the theory of 'respondeat superior' for the negligence of its agents or employees. Paige v. State, 269 N.Y. 352, 199 N.E. 617. Patrolman Schuster was an employee of the State on duty at the time of the accident. Hence the State can be held liable for his negligent acts committed within the scope of his employment.
Undeniably, a motorist has a duty to exercise ordinary reasonable care in the operation of an automobile to prevent injury to those lawfully on the highway. LoGiudice v. Riedel, 32 A.D.2d 950, 303 N.Y.S.2d 756; Spinelli v. Licorich, 24 A.D.2d 172, 265 N.Y.S.2d 117; Loeb v. United Traction Co., 24 A.D.2d 917, 264 N.Y.S.2d 571. Since an automobile is potentially a great danger to a pedestrian, a motorist must use that care which is commensurate with the dangers to be anticipated. Furthermore, he must exercise that care which a reasonably prudent man would use under similar circumstances. Yet, for actionable negligence to result a pedestrian must show that he exercised due care and that his injury was proximately caused by the motorist's negligence. Weber v. City of New York, 17 N.Y.2d 790, 270 N.Y.S.2d 759, 217 N.E.2d 839, aff'g, 24 A.D.2d 618, 262 N.Y.S.2d 222; Naeris v. New York Telephone Co., 5 N.Y.2d 1009, 158 N.E.2d 126, aff'g 6 A.D.2d 196, 175 N.Y.S.2d 683; Maloney v. Kaplan, 233 N.Y. 426, 135 N.E. 838; Goodman v. Gilligan, 280 App.Div. 767, 113 N.Y.S.2d 571; French v. Colamaio, 56 Misc.2d 471, 288 N.Y.S.2d 761.
A motorist is not an insurer of a pedestrian's safety and ordinarily the mere fact that a pedestrian is injured raises no presumption of negligence. Lenti v. Cohon, 16 N.Y.2d 796, 262 N.Y.S.2d 961, 210 N.E.2d 245. Therefore, a motorist is not liable for injuries to a pedestrian in an inescapable accident where he is unable to avoid striking the pedestrian. Wilson v. Maiello, 34 A.D.2d 221, 310 N.Y.S.2d 249.
After a thorough review of the evidence adduced at the trial, it is this Court's conclusion that Patrolman Schuster's action did not constitute negligence. Confronted with a situation which he could not have possibly foreseen, he reacted in a reasonable and prudent manner by immediately applying his brakes in an attempt to avoid collision. Taking into consideration the unlit condition of the roadway, the speed of the patrol car, the time of night and unlikelihood of finding a person lying in the roadway, it would appear that this unfortunate accident could not be avoided.
Possibly there was contemporaneous negligence. However, when the negligence of two persons is contemporaneous and the fault of each operated directly to cause the injury neither can recover from the other. Panarese v. Union Ry. Co., 261 N.Y. 233, 185 N.E. 84; Hernandez v. Brooklyn & Queens Transit Corp., 284 N.Y. 535, 32 N.E.2d 542.
At most there may have been an error of judgment in an emergency so sudden and immediate that seconds made a difference, but that alone does not constitute negligence. Wilson v. Maiello, supra, citing Woloszynowski v. New York Central R.R. Co., 254 N.Y. 206, 209, 172 N.E. 471, 472; Polk v. New York Central R.R. Co., 10 A.D.2d 703, 704, 198 N.Y.S.2d 84, 86, aff'd 8 N.Y.2d 1106, 209 N.Y.S.2d 786, 171 N.E.2d 873.
Even if this Court were to find negligence on the part of the officer, the facts presented certainly raise serious questions as to the proximate cause and contributory negligence. The deceased was lying on the roadway, late at night, in violation of the Long Island State Park Commission Ordinance, Rules and Regulations, which excluded pedestrians from the use of the parkway. His mere presence there is highly suggestive, if not indicative, of contributory negligence. This Court makes that statement being well aware that in a death case a claimant is not held to as high a degree of proof as in the normal negligence action and that he is entitled to the benefit of every favorable inference which can be drawn from the evidence. Andersen v. Bee Line Inc., 1 N.Y.2d 169, 151 N.Y.S.2d 633, 134 N.E.2d 457.
However, even if this Court were to go one step further and find the...
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