Hubbard  v. Cnty. of Madison

• Decision Date: 01 March 2012
• Citation: 93 A.D.3d 939,939 N.Y.S.2d 619,2012 N.Y. Slip Op. 01543
• Parties: Philip E. HUBBARD Jr. et al., Individually and as Parents and Guardians of Jamie L. Hubbard, an Incapacitated Person, Appellants, v. COUNTY OF MADISON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01543

93 A.D.3d 939

939 N.Y.S.2d 619

Philip E. HUBBARD Jr. et al., Individually and as Parents and Guardians of Jamie L. Hubbard, an Incapacitated Person, Appellants,

v.COUNTY OF MADISON et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

March 1, 2012.

Law Office of James G. DiStefano, Syracuse (James G. DiStefano of counsel), for appellants.

Martin & Rayhill, P.C., Utica (Kevin G. Martin of counsel), for County of Madison, respondent.

Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for Joseph H. Sadlowski, respondent.

Before: MERCURE, Acting P.J., PETERS, MALONEJR., KAVANAGH and McCARTHY, JJ.

PETERS, J.

Appeal from an order of the Supreme Court(McDermott, J.), entered September 1, 2011 in Madison County, which, among other things, granted defendants' motions for summary judgment dismissing the complaint.

In January 2008, Jamie L. Hubbard was driving westbound on Roberts Road in the Town of Lenox, Madison County when she lost control of her vehicle, crossed into the oncoming lane of traffic and collided with a vehicle driven by defendantJoseph H. Sadlowski.Hubbard sustained catastrophic injuries as a result of the accident, including traumatic brain injury and quadriplegia, and has no memory of the collision or any of the events preceding it.

Plaintiffs commenced this action alleging that Sadlowski was negligent in the operation of his vehicle and that defendantCounty of Madison negligently maintained, designed and constructed the subject roadway and failed to provide adequate signage.Following joinder of issue, Sadlowski moved for summary judgment dismissing the complaint, alleging that he was confronted with an emergency situation not of his making and acted reasonably in the face of the emergency.The County separately moved for summary judgment contending, among other things, that it had no prior written notice of any allegedly dangerous or defective condition on Roberts Road and that any alleged condition or defect was not the proximate cause of the accident.Supreme Court granted both motions, prompting this appeal by plaintiffs.

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’ ”( Caristo v. Sanzone,96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36[2001], quotingRivera v. New York City Tr. Auth.,77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432[1991] ).Such an emergency situation arises when a vehicle traveling in the opposite direction crosses into a driver's lane ( seeCancellaro v. Shults,68 A.D.3d 1234, 1236, 890 N.Y.S.2d 677[2009], lv. denied14 N.Y.3d 706, 899 N.Y.S.2d 754, 926 N.E.2d 259[2010];Mandel v. Benn,67 A.D.3d 746, 747, 889 N.Y.S.2d 81[2009];Dearden v. Tompkins County,6 A.D.3d 783, 784, 774 N.Y.S.2d 201[2004];Burnell v. Huneau,1 A.D.3d 758, 760, 767 N.Y.S.2d 163[2003] ).“Whether a driver's actions in an emergency situation were reasonable is ordinarily a question of fact, but summary judgment may be granted ‘when the driver presents sufficient evidence to establish the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue’ ”( Cancellaro v. Shults,68 A.D.3d at 1236, 890 N.Y.S.2d 677, quotingBurnell v. Huneau,1 A.D.3d at 760, 767 N.Y.S.2d 163;seeLamey v. County of Cortland,285 A.D.2d 885, 886, 727 N.Y.S.2d 551[2001];Smith v. Brennan,245 A.D.2d 596, 597, 664 N.Y.S.2d 687[1997] ).

Sadlowski testified that he was driving easterly along Roberts Road when he first observed Hubbard's vehicle as she was coming out of the second of two left curves on Roberts Road.He testified that he was driving at no more than 45 miles per hour and within the posted speed limit, and described the weather as cloudy and the road as flat, level and clear of snow.Sadlowski explained that, upon first observing Hubbard's vehicle as it came out of the second curve, it appeared to have “been off the shoulder of the road or on the shoulder off the edge of the highway.”Sadlowski testified that after he took his foot off of the accelerator to slow down because it appeared that Hubbard was attempting to get back onto the roadway, Hubbard's vehicle “came right across” into his lane of travel and collided with the front of his vehicle.According to Sadlowski, three seconds passed between the time he first observed Hubbard's vehicle and the collision.He testified further that when Hubbard's vehicle suddenly crossed into his lane, “it was too close” and there was no time to stop.A deputy sheriff trained in accident reconstruction who arrived at the scene shortly after the accident took various measurements, inspected the area and concluded, from his examination of all of the available evidence, that the point of impact between the two vehicles had taken place wholly within the eastbound lane in which Sadlowski was traveling.Notably, nothing contained in the police report or elsewhere in the record is inconsistent with Sadlowski's account ( seeCancellaro v. Shults,68 A.D.3d at 1237, 890 N.Y.S.2d 677).By his uncontradicted testimony, Sadlowski established that he“ ‘was confronted with an emergency and was not negligent in regard to the emergency,’ thereby shifting the burden to plaintiff[s] to establish the existence of issues of fact”( Cancellaro v. Shults,68 A.D.3d at 1237, 890 N.Y.S.2d 677, quotingCohen v. Masten,203 A.D.2d 774, 776, 610 N.Y.S.2d 385[1994], lv. denied84 N.Y.2d 809, 621 N.Y.S.2d 519, 645 N.E.2d 1219[1994];seeAlvarez v. Prospect Hosp.,68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572[1986] ).

In opposition to Sadlowski's motion, plaintiffs presented the affidavits of an engineer, a body shop owner and their attorney.The body shop owner's “estimate” that Sadlowski's vehicle was traveling 55 miles per hour upon impact with Hubbard's vehicle constitutes pure speculation ( seeCancellaro v. Shults,68 A.D.3d at 1237, 890 N.Y.S.2d 677;Bavaro v. Martel,197 A.D.2d 813, 814, 602 N.Y.S.2d 971[1993] ), and the affidavit of plaintiffs' attorney, who had no personal knowledge of the salient facts, was likewise without evidentiary value and insufficient to defeat the motion ( seeZuckerman v. City of New York,49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718[1980];DiBartolomeo v. St. Peter's Hosp. of the City of Albany,73 A.D.3d 1326, 1327, 901 N.Y.S.2d 389[2010];Haire v. Bonelli,57 A.D.3d 1354, 1357, 870 N.Y.S.2d 591[2008];Prince v. Accardo,54 A.D.3d 837, 838, 863 N.Y.S.2d 819[2008] ).Plaintiffs' engineer opined that Sadlowski could have done something to avoid the accident, such as slow down, stop immediately upon seeing Hubbard's car cross into his lane or swerve into the open, oncoming lane of traffic.These conclusions, however, are both speculative and grounded upon incorrect facts.For instance, the engineer's opinion was based on his assumption that the road was dry at the time of the accident, but this assumption finds no support in the record and is contradicted by the deposition testimony of the three officers who first responded to the scene, all of whom testified that the road was slippery.Moreover, while the engineer opined that Sadlowski could have avoided the accident given his sight distance from when he observed Hubbard's vehicle “reenter” the roadway from the shoulder, he expressed no opinion regarding when Hubbard's vehicle crossed the center line and how long Sadlowski then had to react.It is well settled that “[a] driver in his [or her] proper lane of travel is not required to anticipate that a car going in the opposite direction will cross over into that lane”( Lamey v. County of Cortland,285 A.D.2d at 886, 727 N.Y.S.2d 551[internal quotation marks and citations omitted];seeCancellaro v. Shults,68 A.D.3d at 1236, 890 N.Y.S.2d 677;Wasson v. Szafarski,6 A.D.3d 1182, 1183, 776 N.Y.S.2d 423[2004];Burnell v. Huneau,1 A.D.3d at 760, 767 N.Y.S.2d 163).As “ ‘[s]peculation regarding evasive action that a defendant driver should have taken to avoid a collision, especially when the driver had, at most, a few seconds to react, does not raise a triable issue of fact’ ”( Cancellaro v. Shults,68 A.D.3d at 1237, 890 N.Y.S.2d 677, quotingDearden v. Tompkins County,6 A.D.3d at 785, 774 N.Y.S.2d 201;seeBurnell v. Huneau,1 A.D.3d at 761, 767 N.Y.S.2d 163;Lamey v. County of Cortland,285 A.D.2d at 887, 727 N.Y.S.2d 551), the complaint was properly dismissed as against Sadlowski.¹

Supreme Court properly awarded summary judgment to the County.Local LawNo. 3(1978) of the County of Madison provides that no civil action for damages or injuries to person or property arising out of alleged highway defects may be maintained against the County in the absence of prior written notice.Here, it is undisputed that no such notice was given to the County.With respect to plaintiffs' claim that the accident was caused by a “lip” of more than two inches from the paved portion of the highway to the shoulder, they contend that no prior written notice was required because the County created the defect through an affirmative act of negligence ( seeOboler v. City of New York,8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270[2007];Amabile v. City of Buffalo,93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104[1999] ).However, the affirmative negligence exception to prior written notice statutes applies only where the action of the municipality “ ‘immediately results in the existence of a dangerous condition’ ”( Yarborough v. City of New York,10 N.Y.3d 726, 728, 853...