In Brannan v Korn, Second Department, May 24, 2011, an action to recover damages for personal injuries, The Court granted defendants’ motion for summary judgment dismissing the complaint based on the emergency doctrine. The plaintiff, while attempting to walk across Ring Road, in Garden City, New York, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant Joseph D. Korn. The Court held that while “… 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)…” The Court went on to hold that the defendants were entitiled to judgment as a matter of law.
“The evidence submitted by the respondents in support of their motion for summary judgment established that Korn was faced with an emergency situation, not of his own making, leaving him with seconds to react and virtually no opportunity to avoid a collision (see Lonergan v Almo, 74 AD3d 902). Under these circumstances, the respondents established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff’s speculative and conclusory assertions failed to raise a triable issue of fact as to whether Korn’s reaction to the emergency was unreasonable, or whether any negligence on his part proximately contributed to bringing about the emergency or the accident.”
One must wonder if plaintiff submitted a detailed affidavit of an accident reconstruction expert. In any auto accident case in which the emergency defense is applicable the plaintiff’s attorney must retain an experienced accident reconstruction expert, not a “generic” expert who will do a detailed site scene analysis, review all testimony, police reports, etc. and be able to state, not speculate, that to a reasonable degree of professional certainty, the defendant driver had time to react and avoid the accident. The affidavit must explain in minute detail the foundation for the expert’s opinion that the defendant had sufficient time to avoid the accident.
The case involved a car accident that took place at an intersection in Queens, New York City. The traffic proceeding in the same direction as the plaintiff’s vehicle was controlled by a stop sign, while the traffic proceeding in the same direction as the defendants’ vehicle was not controlled by any traffic device. The plaintiff’s decedent was sitting in the back seat of the automobile operated by the plaintiff. In reversing The Court held;
“Contrary to the Supreme Court’s determination, the defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427). Although a stop sign governed the intersection for traffic proceeding in the direction that the plaintiff’s vehicle traveled, triable issues of fact exist as to whether the defendant driver was free from negligence and, if not, whether that negligence was a proximate cause of the accident (see Myles v Blain, 81 AD3d 798; Kim v Acosta, 72 AD3d 648; Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.”
Our partner Ben Rubinowitz successfully resolved a claim against the New York City Transit Authority for $4 million. At the time of the accident, a young woman was crossing a New York City street when she was struck by a bus driven by a N.Y.C.T.A. employee. The defense claimed the accident was her fault asserting that she had not crossed in the crosswalk and that she failed to pay attention to the traffic conditions. The injured victim asserted that the bus driver failed to keep a reasonable and proper lookout failing to pay proper attention and in failing to avoid the pedestrian. As a result of the impact the woman suffered a degloving injury to her knee and pelvic fractures.
Rubinowitz, who recently won a $27.5 million verdict for another client struck by a bus said: “This successful result was part of a team effort. Howard Hershenhorn, Diana Carnemolla and Peter Saghir also worked timelessly for our client.” Rubinowitz continued: “We have the ability to secure the very best results for our clients because of two main reasons: We work harder and put in more effort than any other law firm.”
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf has had remarkable results for its clients in car accident, construction, premises liability, civil rights and medical malpractice cases. Ten of its lawyers have been listed in Best Lawyers and Super Lawyers.
The Court of Appeals on February 17, 2011, in a 4 to 3 decision has just written an extremely interesting and important opinion (Kabir v. County of Monroe) regarding New York Vehicle & Traffic Law, Section 1104(e).
The Court held that the reckless disregard standard of care in V & T Law 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by V & T Law 1104(b). Any other injury causing conduct of such a driver is now governed by the principles of ordinary negligence.
Jeffrey and Diana Acre have filed a wrongful death lawsuit against the Pennsylvania Department of Transportation over the 2009 death of their daughter. They allege that PennDOT’s poor design and maintenance of Route 366 in New Kensington was a contributing factor in the death of 16-year-old Kylee Jo.
In the lawsuit filed in Westmoreland County Court, the parents blame PennDOT for not filling in a steep, 4-inch rut between the road and the shoulder. The suit says the design flaw is even more dangerous because the dropoff is located on a curve.
Kylee Jo was a front-seat passenger in an SUV that slammed into a guardrail. She was not wearing a seatbelt. The driver of the vehicle, Jonathan Patrick O’Sullivan, was speeding and under the influence of alcohol at the time of the accident. He was charged with vehicular homicide, drunken driving, speeding and several related crimes.
Ford pleaded with the Illinois Supreme Court Justices last week in hope that they’d overturn the $43 million Madison County verdict awarded to Dora Mae Jablonski in 2005, as reported in The Madison Record.
Jablonski’s husband, John Jablonski, died after the fuel tank in their 1993 Lincoln Town Car exploded and she suffered severe burns across most of her body.
“We firmly believe that the parties received a fair trial in this case,” Fifth District Appellate Court Justice Bruce Stewart wrote in a February judgment.
The following is an extract from a report in The National Edition of Verdict Search, Vol. 8 Issue 6, June 2009.
Our Partner, Ben B. Rubinowitz represented the plaintiffs, Gloria Aguilar and Aristides Aguilar.
On Nov. 4, 2005, plaintiff Gloria Aguilar, 45, a homemaker and part-time housecleaner, was struck by a New York City Transit Authority bus. The incident occurred on West 50th Street, alongside its intersection at 10th Avenue, in Manhattan. Aguilar sustained injuries of her arms, head, legs and torso. Aguilar sued the bus’s driver, Andrew Monaco, and the bus’s operator, the New York City Transit Authority. Aguilar alleged that Monaco was negligent in his operation of the bus. She further alleged that the New York City Transit Authority was vicariously liable for Monaco’s actions.
Following a six week trial in New York Supreme Court before Judge Paul Feinman, our Partner, Ben B. Rubinowitz obtained a jury verdict of $27,500,000.00.
The plaintiff, Gloria Aguilar, was a 45 year old woman, returning from work. As she was crossing 50th St at 10th Ave, a New York City Transit Authority bus made a right turn into her. The bus knocked her down and then ran over her left leg. Although the leg was attached “by a thread”, the doctors at Bellevue Hospital were unable to perform microsurgery due to the crush injuries from the 40,000 pound bus. Ms Aguilar underwent multiple surgeries and eventually had an above-the-knee amputation.
The defendant Transit Authority claimed that Ms Aguilar was outside of the crosswalk at the time she was struck, that she failed to look and walked into the side of the Bus.
In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;
” Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). ”
“On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant.”