Noth v. Scheurer
| Decision Date | 24 May 1968 |
| Docket Number | No. 67-C-14.,67-C-14. |
| Citation | 285 F. Supp. 81 |
| Parties | Jeanne Parr NOTH as Executrix of the Last Will and Testament of Charles James Noth, Plaintiff, v. Kathleen T. SCHEURER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
McGovern, Vincent & Connelly, New Rochelle, N. Y., for plaintiff; Frank H. Connelly, New Rochelle, N. Y., of counsel.
David T. Walsh, New York City, for defendant; Alfred J. Brumme, New York City, of counsel.
In this diversity action by the plaintiff-executrix, a Connecticut resident, against the defendant, a New York resident, for pain and suffering prior to death and for the unlawful death of her husband (pursuant to Sections 119 and 130 of the New York Decedent Estate Law, McKinney's Consol.Laws, c. 13) arising out of an automobile accident, the plaintiff brings this motion for summary judgment.
Decedent, Charles James Noth, was on the night of March 4, 1966 a passenger in the front seat of a Chevrolet sedan owned and driven by the defendant, Kathleen T. Scheurer, who had picked him up in Manhattan at approximately eight o'clock for the purpose of driving him to his apartment in Stamford via the New England Thruway. It was a drizzly night and the defendant lost her way in the Bronx and did not arrive at the Thruway until a few minutes after 10 P.M. There was virtually no traffic on the Thruway and after travelling for approximately five minutes thereon at a speed of somewhere between 35 and 48 miles per hour, the defendant steered her automobile across the outside lane where she had been driving, then across the middle lane and finally into the left or inside lane. At this particular point her statements before the Department of Motor Vehicles and her testimony at her deposition are not identical. Before the Motor Vehicle Department she said she steered across these lanes for no particular reason and that "the road looked to like it was all full of these oil bubbles and I had just changed lanes and with that my wheel struck the abuttment"; that after she moved into the left lane the car started to skid, although she had complete control of the car at the time, and then "it hit the abuttment". She further testified at this hearing that the left front wheel of the car "must have hit that mall for me to go into the complete uncontrolled right turn"; that the car started to travel sideways; that she applied her brakes and held one hand on the steering wheel to try to bring it to the left and "I held on to my passenger with my other hand". She then added that the whole front of her car smashed into the wall in front of her, knocking her unconscious and causing serious injuries to the decedent, from which he subsequently died.
In her deposition resulting from her examination before trial she stated that the whole thing occurred when she went into the left-hand lane and although she felt no bump in the car, She made no statement about oil or anything else on the road, and offered as an excuse for proceeding into the left-hand lane (although she could not "swear to this") that she was looking for a familiar sign such as a Gun Hill Road sign. She made no statement about holding on to her passenger with one of her hands. She stated that she did not travel long in the left-hand lane but that the accident "happened as I was going into the left lane". She further added that she had straightened out in the left-hand lane and the car struck the curb on the side of the mall. Up to that time she said that her car had not skidded but after she hit the abutment the car did skid and that the thing that caused the skid was the contact between the front tire of the car and the curb and that thereafter she went clear across the road and struck the wall. Her testimony as to the cause of the skid was more or less her opinion. To use her phraseology, she stated that "the curb must have rubbed my tire and that's what caused the skid."
Although the automobile was equipped with seatbelts, neither the defendant nor the decedent was wearing the same at the time of the accident. Defendant knows of no eyewitnesses to the accident other than herself. On the day following the accident the car was inspected by the Police Department whose report describes the vehicle as "demolished" by collision with "bridge overpass support column at Connors Street", with "motor pushed in toward front seat".
Defendant submitted no personal affidavit in opposition to the summary judgment motion, although she did submit a transcript of the hearing held before the Department of Motor Vehicles on November 7, 1966, at which she testified under oath. Her attorney submitted an affidavit which, of necessity, is of little weight since he has no first-hand information about the accident. Plaintiff claims that this transcript would be inadmissible as evidence on the defendant's behalf, although it would be admissible against her if the plaintiff offered it, citing Fleury v. Edwards, 14 N.Y.2d 334, 251 N.Y.S.2d 647, 200 N.E.2d 550 (1964). It is true that although defendant's testimony at the Motor Vehicle hearing could not be introduced by her at the trial, it can by a liberal interpretation be considered as an affidavit submitted on behalf of the defendant. Since the defendant submitted no affidavit upon this motion in her own behalf but was content to rely upon her testimony before the Department of Motor Vehicles and her counsel's statements and conclusions, the Court is permitted to give greater weight to her statements at the examination before trial.
In essence, plaintiff claims that this is a case where the accident would ordinarily not have occurred without the negligence of the defendant and that in the absence of a satisfactory explanation by the defendant, an inference of negligence is inescapable.
The only explanation of the accident consistent with the lack of negligence on the part of the defendant lies in her brief statement at the Motor Vehicle Department hearing, otherwise undeveloped, that "Well first of all the road looked to like it was all full of these oil bubbles and I had just changed lanes and with that my wheel struck the abuttment". She does not state whether hitting the oil caused the wheel of the car to strike the curb or whether it prevented her efforts to regain control of the automobile after it started skidding as a result of hitting the curb or even whether she noticed the oil too late to take precautionary measures. The attorney for the defendant states that perhaps the defendant did not actually strike the curb at all but presumably skidded because of the oil or wetness of the highway. But his affidavit is an argument based upon...
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... ... The seat belt defense, however, is particularly problematic in a claim for wrongful death. In Noth v. Scheurer, 285 F.Supp. 81, Judge Bartels succinctly identified the issues as follows: ... "In accident cases involving the failure to wear ... ...
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