Ugarriza v. Schmieder

• Decision Date: 13 February 1979
• Citation: 386 N.E.2d 1324,46 N.Y.2d 471,414 N.Y.S.2d 304
• Parties: , 386 N.E.2d 1324 Magaly UGARRIZA, Appellant, v. Glenn R. SCHMIEDER et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 304

414 N.Y.S.2d 304

46 N.Y.2d 471, 386 N.E.2d 1324

Magaly UGARRIZA, Appellant, v. Glenn R. SCHMIEDER et al., Respondents.

Court of Appeals of New York.

Feb. 13, 1979.

Jack Weiss and Robert Topper, Melville, for appellant.

John J. Brant, Stephen W. O'Leary and Robert Devine, Jamaica, for respondents.

OPINION OF THE COURT

GABRIELLI, Judge.

The legal issue squarely presented is whether plaintiff in this automobile negligence action is entitled to summary judgment on the issue of liability, or whether there exist genuine and substantial triable issues of fact which serve to preclude summary judgment. Supreme Court, Suffolk County, granted plaintiff's motion to strike defendants' answer and set the case down for a hearing on the issue of damages only, stating that "there are no triable issues of fact". A majority of the Appellate Division reversed and denied plaintiff's motion, with one Justice dissenting. Plaintiff now appeals from that nonfinal order, pursuant to leave granted by that court, which certified the following question: "Was the order of this court, dated March 13, 1978, properly made?" For the reasons discussed below, the order appealed from should be affirmed and the certified question answered in the affirmative.

Although there once were significant limitations upon the type of action in which summary judgment was available (see Siegel, New York Practice, § 280), this is no longer true (see CPLR 3212). Indeed, as of January 1, 1979, the final prohibition was removed, and it is now possible for a plaintiff to obtain summary judgment even in a matrimonial action (L.1978, ch. 532). That summary judgment is an available remedy in an appropriate negligence case has been accepted since 1959 (see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.03). Summary judgment has been termed a drastic measure, however, since it deprives a party of his day in court and will normally have Res judicata effects (see Siegel, New York Practice, § 287). Thus, it may be granted without a trial only if no genuine, triable issue of fact is presented (Werfel v. Zivnostenska Banka, 287 N.Y. 91, 38 N.E.2d 382; CPLR 3212, subds. (b), (c)). Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. Only if it can be concluded as a matter of law that defendant was negligent, may summary judgment be granted in a negligence action. The matter before us is not such a case.

The parties are not in disagreement as to the pertinent underlying facts. Plaintiff, defendant Glenn Schmieder, and two other young people who had gathered at a local discotheque decided to travel to a diner several miles away in a car owned by defendant George Schmieder and operated by Glenn Schmieder. Plaintiff sat in the front passenger seat. It was then about 4 o'clock in the morning; the night was clear and traffic was light. Schmieder states that he was quite sober, having had only one drink during the course of the night, and plaintiff does not deny this. The driver had never been at the diner before, and was being given instructions by one of the other passengers. The diner was located on the south side of the highway, and to reach it, Schmieder was required to make a left turn off the road. For some reason, not specified in the record, it was impossible to turn directly into the diner. Instead at another passenger's instructions, defendant made a left turn into the parking lot of a shopping center adjacent to and just past the diner. He then turned left once again, and began to drive across the parking lot towards the diner at a speed of between 20 and 25 miles per hour. There were no other vehicles in the unilluminated and blacktopped parking lot. Defendant states that he was alert and paying attention to his path, and plaintiff does not dispute this. Suddenly, all four persons in the car simultaneously saw something a few feet ahead, and each uttered an appropriate exclamation. Defendant applied the brakes, but was unable to stop before striking an unpainted, concrete divider separating two sections of the parking lot. The divider is variously described as being between 1 foot and 18 inches high, about 6 feet wide, and extending almost the length of the parking lot. As a result of the collision, both plaintiff and defendant were thrown into the windshield, and plaintiff allegedly sustained serious injuries.

Plaintiff now contends that on the basis of these facts, essentially concurred in by all parties, she is entitled to summary judgment on the issue of liability. In other words, plaintiff argues that the actions and omissions of defendant as described above constitute negligence as a matter of law. We disagree. Plaintiff places considerable reliance upon our latest statement in this area of the law, Andre v....