The Rogak Report: 31 Jan 2005 ** Stop Sign - Right of Way **
- DRIVER WITH RIGHT OF WAY IS NOT LIABLE FOR INTERSECTION ACCIDENT
Tesoro v. Volpe, NYLJ 1/31/05 (Supreme Court, Kings County) (Schmidt,
On December 28, 2002, the infant plaintiffs, Daniel Tesoro and Lee
Anthony Ragusa, were allegedly injured in an automobile accident when
the automobile in which they were passengers was struck by a vehicle
owned by defendant New York Cheese and Pasta Corp. and operated by
defendant Joseph Volpe. The accident occurred at the intersection of
81st Street and 13th Avenue in Brooklyn. Thereafter, their mothers
commenced this negligence action on their behalf against Volpe,
Pasta, and Vicenzo Ragusa (the operator of the automobile in which
the infants were riding), among others.
In his motion, Vicenzo Ragusa contended that he was not negligent as
a matter of law since Volpe failed to stop at the stop sign located
at the subject intersection due to alleged brake failure and struck
the Ragusa vehicle. According to Ragusa's deposition testimony, he
had no traffic control devices at the subject intersection and, as he
approached the intersection, he was looking straight ahead. After he
had proceeded into the intersection, his vehicle was struck in the
rear right side by the Volpe vehicle.
According to Volpe's deposition testimony, as he neared the
intersection, perpendicular to Ragusa's direction of travel, he
observed a stop sign and applied his brakes. Volpe testified that the
brakes did not work. Movant argues that, since Volpe concededly
failed to stop at the subject intersection, he is negligent as a
matter of law and the complaint against him should be dismissed.
In opposition to the motion, plaintiffs contend that a question of
fact exists as to whether Ragusa operated his vehicle in a negligent
manner as he approached the intersection. Plaintiffs fault Ragusa for
his failure to look and observe the traffic to his left or his right
as any reasonable driver should have done.
The Court ruled that as a matter of law, "as between Joseph Volpe and
Vicenzo Ragusa, the cause of the accident was the negligence of
Joseph Volpe, who failed to obey the stop sign on 13th Avenue at the
intersection in question. Vicenzo Ragusa, who was driving on 13th
Avenue, where there was no stop sign had the right of way and was
therefore entitled to anticipate that other drivers would obey the
traffic laws requiring them to yield."
"Plaintiffs offer no evidence, for example, that Joseph Volpe stopped
at the stop sign or that Vicenzo Ragusa was traveling at a speed
greater than the speed limit." Accordingly, the motion was granted,
the complaint and all cross claims against defendant Vicenzo Ragusa
were dismissed and the action was severed and continued against the
Comment: I agree that Ragusa was not negligent, as he had the right
of way and was not required to anticipate that the other driver would
blow a stop sign. However, at Volpe's trial, if he can establish
that the car's brakes failed suddenly and without prior warning, he
should technically be able to avoid being found negligent.