Spano v. Onondaga County

• Decision Date: 18 December 1987
• Citation: 135 A.D.2d 1091,523 N.Y.S.2d 310
• Parties: Leonard SPANO, as Administrator of the Goods, Chattels and Credits of Mark Anthony Spano, Deceased, Appellant, v. The COUNTY OF ONONDAGA, and Edward H. McAvoy, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 310

523 N.Y.S.2d 310

135 A.D.2d 1091

Leonard SPANO, as Administrator of the Goods, Chattels and Credits of Mark Anthony Spano, Deceased, Appellant, v. The COUNTY OF ONONDAGA, and Edward H. McAvoy, Respondents.

Supreme Court, Appellate Division Fourth Department.

Dec. 18, 1987.

Sullivan & Roman, Oswego by John Sullivan, for appellant.

O'Hara & Crough, Syracuse by Craig Niederpruem, for respondents.

Before DILLON, P.J., and DOERR, BOOMER, GREEN and DAVIS, JJ.

MEMORANDUM:

The trial court erred in deciding that plaintiff did not establish a prima facie case of negligence. The central issue at trial was whether defendant deputy sheriff caused decedent to lose control of his vehicle by shining a 75,000 candlepower spotlight into the rear window of the vehicle. The trial court, after reserving decision of defendant's motion to dismiss at the close of plaintiff's case and then granting the motion at the close of defendant's proof, found that "... there is no evidence from which it can be reasonably inferred that the deputy's spotlight reflected in the decedent's rear view mirror could blind the driver, thus causing the accident." We disagree.

It is well settled that a plaintiff is entitled to the most favorable view of the evidence and that there must be no rational basis whereby the jury might find in favor of a plaintiff before a trial court may dismiss a complaint at the close of the evidence presented ( Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 54 N.E.2d 809). There may be more than one proximate cause of a plaintiff's injuries and a plaintiff need not exclude every other possible cause of injury to recover ( Humphrey v. State of New York, 60 N.Y.2d 742, 744, 469 N.Y.S.2d 661, 457 N.E.2d 767). It is sufficient that facts and circumstances are shown from which causation reasonably may be inferred ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 829, 437 N.Y.S.2d 1030, 418 N.E.2d 694; Bolte v. City of New York, 22 N.Y.2d 817, 292 N.Y.S.2d 912, 239 N.E.2d 653). Moreover, this being a wrongful death case, the plaintiff is held to a lesser standard of proof since the decedent is unavailable to recount his version of the events ( Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744). Since there could be differing views as to when the deputy turned on the spotlight, how long he kept it on and how close his car was to decedent's car during this period of time, the court should have allowed the case to go to the jury (see, O'Neil v. Port Auth. of N.Y. & N.J., 111 A.D.2d 375, 376, 489 N.Y.S.2d 585; Horne v. Metropolitan Tr. Auth., 82 A.D.2d 909, 910, 440 N.Y.S.2d 695).

The only direct testimony regarding where, when and for how long the spotlight was turned on came from defendant Deputy McAvoy and, implicit in the court's findings, is that his testimony was credible. Issues of credibility, however, are for the jury. McAvoy testified that he turned on his spotlight for one to three seconds somewhere past the Church Road intersection which is approximately 1.9 miles from the tree plaintiff's decedent's vehicle struck. How far past the intersection McAvoy was when he turned on the spotlight and at what point he turned it off, were key questions of fact for the jury to resolve. Deputy McAvoy also testified that he never saw decedent's car hit the tree. The preponderance of the evidence, however, places McAvoy's car only five seconds or approximately 500 feet behind the decedent's car at the time it collided with the tree. At this point, McAvoy would have had a clear view of decedent's car and the tree. Thus, McAvoy's credibility was put in issue, as was the possibility that the spotlight remained on longer than three seconds.

Three hours after the accident, McAvoy gave a detailed sworn statement to an investigator hired by the sheriff reciting his version of the events preceding the accident. The document itself clearly demonstrates that before he executed it, he carefully and thoroughly reviewed it because he initialed it several times where he chose to make handwritten corrections. The affidavit recites that McAvoy turned on his spotlight and focused it on the rear window of the pursued vehicle at a point near the Church Road intersection but before the vehicle drove over a railroad crossing north of Kellogg Road. Nowhere in this affidavit, however, does McAvoy state when, if ever, he turned off the spotlight.

Moreover, the record reveals that four days following the accident the investigator prepared a "Follow up Investigation" report "to clarify information" in the statement the investigator had taken from McAvoy the day of the accident. This supplemental report included McAvoy's explanation that he turned off the spotlight at some point after decedent's car passed the intersection because McAvoy claimed he could not concentrate simultaneously on controlling the spotlight and driving his vehicle. This was the first reference to when McAvoy may have turned off the spotlight and the investigator acknowledged that McAvoy never stated in terms of minutes or seconds exactly how long the spotlight was turned on. It would not have been illogical or unreasonable for the jury to infer that the police, having reviewed McAvoy's original affidavit and realizing it omitted any mention of when he turned off the spotlight, may have directed their investigator to prepare the supplemental report to fill this void. The jury could further conclude that by attributing the correction for the omission to the investigator rather than having McAvoy himself supplement his prior statement, the police attempted to minimize this critical omission by characterizing it as merely a clerical or transcription error.

Plaintiff's claim at trial, based upon expert witnesses including an optometrist and an accident reconstruction expert, was that the jury could reasonably infer that the decedent had control of his vehicle until Deputy McAvoy negligently shone the spotlight into it. Moreover, even defense counsel acknowledged that the effect of a shining light in a rear view mirror is a question within the knowledge and province of the jury. In sum, the record in this case contains sufficient evidence of negligence for submission of that issue to the jury and, accordingly, the court erred in directing a verdict for the defendant. ( Sagorsky v. Malyon, 307 N.Y. 584, 586, 123 N.E.2d 79; McDonald v. Metropolitan St. Ry. Co., 167 N.Y. 66, 69-70, 60 N.E. 282).

Order and Judgment reversed on the law with costs and new trial granted.

All concur, except BOOMER and DAVIS, JJ., who dissent and vote to affirm, in the following Memorandum:

We agree with the trial...