Bixby v. Eddy

167 A.D.2d 51, 571 N.Y.S.2d 339, 1991 N.Y. App. Div. LEXIS 7823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1991
• Status: Published

Opinions

OPINION OF THE COURT

Mercure, J.

Plaintiffs commenced this action alleging, inter alia, defendants’ negligence in causing physical injuries and property damage sustained when a motorcycle driven by plaintiff Jon P. Bixby slid off a curve and turned on its side. The matter came on for trial and, at the conclusion of plaintiffs’ case, Supreme Court dismissed the complaint pursuant to CPLR 4401. Plaintiffs appeal.

We affirm. The evidence adduced at trial, viewed in a light most favorable to plaintiffs (see, Hylick v Halweil, 112 AD2d 400), follows. Plaintiffs became involved in a verbal altercation with defendant Robert Eddy at the Ross Park Zoo in the City of Binghamton, Broome County. Plaintiffs and Eddy and his companions left the zoo grounds at closing time, and Eddy and his party drove from the zoo parking lot about a minute prior to plaintiffs’ departure on Bixby’s motorcycle. Eddy drove a short distance from the zoo, backed into a driveway and waited to see which way plaintiffs would go. When plaintiffs drove from the zoo, purposely selecting an unfamiliar alternate route to avoid a confrontation, Eddy followed them.

After driving 0.6 mile, Bixby came upon a curve in the road at the crest of a hill. Because of his preoccupation with the Eddy vehicle in his rearview mirror, lack of familiarity with the road, the presence of an oncoming car, excessive speed for the curve and overapplication of his foot brake, Bixby was unable to negotiate the curve. According to Bixby’s testimony, while the initial speed limit was 30 miles per hour, upon crossing the city line "a few hundred feet” from the park the speed limit increased to 40 miles per hour. When Bixby first saw the Eddy vehicle, it was 100 to 150 feet behind him. While Eddy initially gained upon him, Bixby accelerated at the point where the speed limit changed and the distance between them continued to widen thereafter. Bixby also testified that he never exceeded the posted speed limit and acknowledged that Eddy never physically interfered with his operation or the path of his motorcycle.

We conclude, from plaintiffs’ own account of the events leading up to the accident, that Eddy was driving his vehicle at less than the posted speed limit for nearly the entire distance from Ross Park to the location of the accident and that the gap between the vehicles was continuously widening. Thus, we cannot accept plaintiffs’ contention that Eddy was "pursuing” them; at most, he was following at a distance. Accordingly, we reject plaintiffs’ reliance upon Veverka v Metropolitan Cas. Ins. Co. (2 Wis 2d 8, 85 NW2d 782), where the car the plaintiff occupied was closely pursued by a gang of motorcyclists at speeds of up to 70 miles per hour and was actually struck by one of the pursuers.

We have no significant disagreement with the legal principles enunciated by the dissent and agree that liability may attach in a case where the actor’s conduct reasonably places another in fear or otherwise causes a reaction which, in turn, creates an unreasonable risk of harm. The cases relied upon by the dissent offer good examples of that kind of conduct. In Lujan v Reed (78 NM 556, 434 P2d 378), the plaintiff, a 16-year-old girl, was sitting in the passenger seat of a convertible with the engine running, waiting for her girlfriend to come out of the house. Without warning, two young men jumped in the car and drove it away, causing the plaintiff to open the car door and either jump or fall out in an attempt to escape. In LePoidevin v Wilson (111 Wis 2d 116, 330 NW2d 555), the plaintiff, also a 16-year-old girl, was on a lakeside pier and, reluctant to expose herself in her revealing swimsuit, held a towel in front of her. Two young men ridiculed, taunted and challenged the plaintiff to enter the water. Finally, when one of the men approached her from behind and suddenly grabbed the towel from her, the plaintiff dove head first into the three-foot-deep water, sustaining serious injuries. In Sparks v City of Compton (64 Cal App 3d 592, 134 Cal Rptr 684), the plaintiff drove away at high speed when undercover police officers exited their vehicle in a hostile, threatening manner, brandishing firearms. Clearly, these cases, respectively involving an apparent abduction, sudden physical contact and threat of death by a deadly weapon, cannot be compared to the fact pattern presented in this case. Neither the dissent nor the majority has located a case in this or, for that matter, any other State which would impose liability as a result of conduct as ambiguous and nonthreatening as that present here.

In a narrow class of cases we may determine foreseeability as a matter of law, and here it is our view that Eddy could not have reasonably anticipated that Bixby would respond to his actions by driving off the road (see, Danielenko v Kinney Rent A Car, 57 NY2d 198, 204). Plaintiffs have not "show[n] that the act as to [them] had possibilities of danger so many and apparent as to entitle [them] to be protected against the doing of it though the harm was unintended” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345). Accordingly, Supreme Court’s order dismissing the complaint should be affirmed.