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The Rogak Report: 31 Jan 2005 ** Stop Sign - Right of Way **

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  • Lawrence Rogak
    DRIVER WITH RIGHT OF WAY IS NOT LIABLE FOR INTERSECTION ACCIDENT Tesoro v. Volpe, NYLJ 1/31/05 (Supreme Court, Kings County) (Schmidt, j.) On December 28,
    Message 1 of 1 , Jan 31, 2005
      DRIVER WITH RIGHT OF WAY IS NOT LIABLE FOR INTERSECTION ACCIDENT

      Tesoro v. Volpe, NYLJ 1/31/05 (Supreme Court, Kings County) (Schmidt,
      j.)

      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
      remaining defendants.

      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.

      Larry Rogak
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