Roach v. Szatko

• Decision Date: 17 November 1997
• Citation: 664 N.Y.S.2d 101,244 A.D.2d 470
• Parties: , 1997 N.Y. Slip Op. 9700 James M. ROACH, et al., Appellants, v. John R. SZATKO, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 101

664 N.Y.S.2d 101

244 A.D.2d 470, 1997 N.Y. Slip Op. 9700

James M. ROACH, et al., Appellants, v. John R. SZATKO, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 17, 1997.

Cook, Tucker, Netter & Cloonan, P.C., Kingston (Robert D. Cook, of counsel), for appellants.

Spiegel, Brown & Fichera, Poughkeepsie (Joseph L. Spiegel, of counsel), for respondent John R. Szatko.

MacCartney, MacCartney, Kerrigan & MacCartney, Nyack (Christopher J. Walsh, of counsel), for respondent Hiddenbrook Estates Cooperative Corporation.

Before MILLER, J.P., and RITTER, ALTMAN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Jiudice, J.), entered August 28, 1996, which granted the defendants' separate motions for summary judgment dismissing the complaint and cross claims insofar as asserted against them.

ORDERED that the order is reversed, with one bill of costs, and the motions are denied.

The plaintiff James M. Roach was injured when he fell while riding on the open tailgate of a vehicle driven by the defendant John R. Szatko. Both Roach and Szatko lived at Hiddenbrook Estates, a residential complex owned by the defendant Hiddenbrook Estates Cooperative Corporation (hereinafter Hiddenbrook). Szatko was a member of Hiddenbrook's maintenance committee, which, as a cost-saving measure, decided to seek volunteers to replace light bulbs in the complex's common areas. Szatko volunteered for the job and solicited other volunteers, including Roach.

On the evening of the accident, Szatko, Roach, and two other individuals had been changing light bulbs in various areas of the complex. Szatko, who was driving himself and the others around the complex, testified at his examination before trial that he had opened the tailgate for Roach and the others to sit on. He explained that sitting on the open tailgate was convenient for the work they were performing. The record indicates that both Szatko and Roach had consumed some alcoholic beverages prior to and while working. As Szatko made a left turn, Roach and an individual named James Manfredi fell onto the roadway.

Roach and his wife subsequently commenced this action against Szatko and Hiddenbrook. The Supreme Court granted the defendants' respective motions for summary judgment on the grounds that Roach's assumption of risk and his failure to use a seat belt barred his recovery. It also held that Szatko was not an agent of Hiddenbrook so as to render it liable on the theory of respondeat superior. We reverse.

Under the circumstances, Roach's assumption of risk, if any, is but a factor to be taken into account in ascertaining the proportionate culpable conduct of the parties (see, CPLR 1411; Barker v. Kallash, 63 N.Y.2d 19, 27-28, 479 N.Y.S.2d 201, 468 N.E.2d 39). Further, whether Roach was intoxicated, and whether such intoxication was a factor in his fall, is a question of fact to be resolved at trial. His alleged intoxication would not absolve the defendants of liability if their negligence was one of the proximate causes of the accident (see, Humphrey v. State of New York, 60 N.Y.2d 742, 744, 469 N.Y.S.2d 661, 457 N.E.2d 767; Clark v. State of New York, 124 A.D.2d 879, 508 N.Y.S.2d 648).

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