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The Rogak Report: 08 Sep 2010 ** Emergency Doctrine - Backing **

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  • Lawrence
    Message 1 of 1 , Sep 8, 2010



      Rodriguez v Consolidated Bus Transit, Inc. 
      2010 NY Slip Op 51563(U)
      Decided on September 1, 2010
      Supreme Court, Kings County
      Kramer, J.
      Edited by Lawrence N. Rogak

      Was the defendant bus driver faced with an emergency situation when the garbage truck that he had been following began to suddenly back up after being stopped?  This court holds that the defendant was not faced with an emergency situation and the action of backing up into the plaintiff's stopped vehicle was negligent as a matter of law.

      Plaintiff moved for summary judgment on the issue of liability. This action arises out of a motor vehicle accident. It is undisputed that both plaintiff and defendant were fully stopped prior to the defendant backing up and hitting plaintiff's car. Defendant alleges that he had been following a garbage truck when the garbage truck stopped to load garbage. Allegedly, the garbage truck suddenly began to reverse which forced the defendant to back up. Defendant did not see the plaintiff's vehicle prior to the collision. Defendant's vehicle was not hit by the garbage truck. Plaintiff testified that she was not aware of the alleged garbage truck in front of defendant's vehicle as her visibility was blocked due to the size of defendant's bus.

      On a summary judgment motion the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there are any triable issues of fact outstanding. Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]. The court must determine if the moving party's papers justify holding as a matter of law that the cause of action or defense has no merit. Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990]. It is well established that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a material issue of fact or where the issue is arguable. Stillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]. "It is necessary for the movant to establish her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgement in his favor (CPLR 3212, sub [b]) and she must do so by tender of evidentiary proof in admissible form." Lopez v. Senatore, 97 AD2d 787 [2nd Dept 1983] quoting Friends of Animals v. Associated Fur. Mfrs., 46 NY2d 1065 [1979].

      Summary judgment is rarely warranted in negligence actions. However in cases where there is no conflict in the evidence, the defendants driver's conduct falls below any permissible standard of due case and the plaintiff's conduct was not involved summary judgement may be granted. See Lopez v. Senatore, 97 AD2d 787 [1983].

      Plaintiff submits that as a matter of law the defendant was negligent in the operation of his vehicle. In support of the motion Plaintiff asserts that the collision is analogous to a hit in the rear collision which establishes a prima facie case of negligence on the part of the operator of the offending vehicle.See, Johnson v. Phillips, 261 AD2d 690 [1999]. When a rear end collision occurs with a stopped vehicle the injured parties of the first vehicle are entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form for the collision. Id.

      The evidence submitted in support of the motion are the deposition of both plaintiff and defendant, the police report and MV-104 form. The police report and MV-104 form have been submitted as party admissions and to in an attempt to cast doubt on defendant's credibility regarding the existence of the garbage truck. Credibility is not an appropriate issue to be resolved on a summary judgment motion. See, Nye v. Putnam Nursing & Rehabilitation Center, 62 AD3d 767 [2d Dept 2009]. Regardless, the admissibility of said documents is irrelevant to the determination that defendant was, as a matter of law, negligent in the operation of his vehicle. As the outcome of the motion would be the same whether the garbage truck was present or not and taking the evidence in the light most favorable to the party opposing the motion it is assumed that the garbage truck was present.

      Vehicle and Traffic Law ยง 1211 provides that the "driver of a vehicle shall not back up unless such movement can be made with safety and without interfering with other traffic." Where a driver backs up his vehicle into a stopped vehicle negligence is established as a matter of law. Lopez, 97 AD2d 787 [2d Dept 1983] see also Garcia v. Verizon New York, Inc., 10 AD3d 339 [1st Dept 2004]. Therefore, plaintiff has established her prima facie entitlement to summary judgment.

      Defendant opposes the motion and moves for summary judgment on liability based on the assertion that the emergency doctrine applies to the instant situation. "[T]he emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection...may not be negligent if their actions are reasonable and prudent in the context of the emergency" Bello v. Transit Auth.of N.Y.City, 12 AD3d 58 [2d Dept 2004]. Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues "may in appropriate circumstances be determined as a matter of law" Vitale v. Levine, 44 AD3d 935 [2d Dept 2007].

      The emergency doctrine has been held to apply to situations where the defendant driver could not have reasonably anticipated the conditions or events which precipitated the collisions. For example, when a pedestrian's body was propelled into the defendant's lane due to a prior impact and was subsequently hit by the defendant. The court held it unreasonable for a driver to be expected to anticipate the sudden existence of a body on the roadway on which he was traversing and therefore the doctrine applied. Franco v. G. Michael Cab Corp., 71 AD3d 1082 [2d Dept 2010]. Similarly the doctrine applied when a vehicle had been hit on a highway and spun around coming to a stop [*3]perpendicular to the road. The vehicle was subsequently broad-sided by the defendant. The court held the emergency doctrine applicable due to a combination of a curve in the highway, the lack of illumination and the inability to change lanes. Brathwaite v. Rivera, 23 Misc.1134(A) [N.Y.Sup.2009][FN1].

      In contrast the emergency doctrine has been held inapplicable in cases where the defendant driver "fails to be aware of potential hazards presented by traffic conditions including stoppages caused by accidents up ahead (see Cascio v. Metz, 305 AD2d 354 [2d Dept 2003]) or where there is evidence showing that the defendant failed to maintain a safe distance, defendant simply strikes a completely stopped vehicle in the rear (see Campanella v. Moore, 266 AD2d 423 [1999])" Braithwaite, supra. Where the defendant drivers should reasonably anticipate and be prepared to deal with the situations in which they are confronted the emergency doctrine in inapplicable. Pincus v. Cohen, 198 AD2d 405 [2d Dept 1993].

      In the instant action the defendant was aware of the garbage truck in front of him and had been following it for some distance. Defendant assertion that the backing up of the garbage truck was an unforseen emergency situation cannot stand. The defendant should have reasonably anticipated that the garbage truck would require adequate girth to engage in its duties. Defendant's failure to leave adequate room for the garbage truck to maneuver without his belief that a collision was inevitable, does not invoke the emergency situation doctrine.

      Accordingly the plaintiff's motion is granted.This constitutes the decision and order of the court.


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