Brown v. Muniz

61 A.D.3d 526, 878 N.Y.S.2d 683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2009
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 10, 2007, which granted defendants’ motion for summary judgment dismissing the complaint, affirmed, without costs.

Plaintiff, an infant, was struck by a vehicle driven by defendant driver on a street that has a parking lane on each side and one lane for westbound traffic. Plaintiff testified at his deposition that he was playing on the sidewalk on the south side of the street when he ran between two parked cars into the street. He did not look to his right before running into the street and, as he was running through the middle of the street, he looked to his right and saw defendants’ vehicle only inches away from him. The driver testified at his deposition that, before the accident, two other children had run from the sidewalk into the street in front of his vehicle and, therefore, he was traveling approximately five miles per hour when plaintiff “came suddenly from between the [parked] cars.” Asked when he saw plaintiff for the first time, the driver answered “[w]hen the accident happened”; asked to estimate the time that elapsed between his first seeing plaintiff and the accident, the driver answered “[l]ike a second”; subsequently asked “[d]id you actually see [plaintiff] come out from between the two parked cars,” the driver answered “[w]hen I felt the impact nothing more.”

Supreme Court correctly dismissed the action. The deposition testimony of both plaintiff and the driver establish that plaintiff, without warning and without looking in the direction of oncoming traffic, darted out between two parked vehicles directly into the path of defendants’ vehicle, leaving the driver unable to avoid plaintiff (see e.g. Afghani v Metropolitan Suburban Bus Auth., 45 AD3d 511 [2007]; Sheppeard v Murci, 306 AD2d 268 [2003]; Wolf v We Transp., 274 AD2d 514 [2000]; Miller v Sisters of Order of St. Dominic, 262 AD2d 373 [1999], lv denied 94 NY2d 763 [2000]).

In concluding that a triable issue of fact exists as to whether the driver was negligent, the dissent focuses only on an isolated snippet of the driver’s testimony. Thus, the dissent writes that the driver testified that “he saw plaintiff running out ‘seconds’ before the accident.” At one point during his deposition, the driver was asked, “[w]hen you say [plaintiff] came out running when did you see him come out running?”, to which the driver responded “[w]hen he was coming out, seconds.” This response, even assuming it was the only testimony on point and fairly must be taken literally, would not establish anything more than that the driver saw plaintiff two seconds before impact (see Miller, supra). In any event, it was clarified later when the driver testified that he saw plaintiff (1) “[l]ike a second” before the accident and (2) as the impact between plaintiff and the vehicle occurred. As is evident, we “interpret” and “usurp [ ]” nothing. Rather, we have recounted the relevant portions of the driver’s testimony and, viewing that testimony in its entirety and in context (see Mitchell v Route 21 Assoc., 233 AD2d 485, 486 [1996]; see also Hoverson v Herbert Constr. Co., 283 AD2d 237, 237-238 [2001]), we conclude that defendants’ submissions established as a matter of law that the driver did not have time to react to avoid plaintiff. “Any contention by the injured plaintiff that [the driver] failed to observe what he should have observed is merely an attempt ‘to ferret out speculative issues to get the case to the jury’ ” (Brown v City of New York, 237 AD2d 398, 399 [1997], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

The dissent labors to make plaintiffs case for him, suggesting that we can, and should, take judicial notice of the “fact” that a driver can react to an emergency situation in less than a second.

* A number of problems, however, plague that suggestion. First, fairness may require that we “afford the parties the opportunity to be heard as to the propriety of taking judicial notice in the particular instance” (Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]). Here, neither party requested that we take judicial notice of the “fact” that a driver can react to an emergency situation in less than a second, and thus the parties have not had the opportunity to address this issue. The resulting prejudice is particularly acute because of the novelty of the issue in this State—the dissent cites only a 1952 Eighth Circuit decision, a 1958 District Court decision from Delaware and a 1931 decision of the Supreme Court of Virginia. Second, and relatedly, the dissent cites no New York case law (and independent research has not disclosed any) indicating that we can take judicial notice of driver reaction time. In fact, New York authority cuts against the dissent’s position (see Murray v Donlan, 77 AD2d 337 [1980], appeal dismissed 52 NY2d 1071 [1981] [court cannot take judicial notice of stopping distance of an automobile traveling at certain rate of speed]). At bottom, whether human reaction time is a subject of which a New York State court may take judicial notice is unclear and, in the absence of any discussion of this issue by the parties, we decline to notice a particular response time.

The dissent’s “cf” cite to Ferrer v Harris (55 NY2d 285 [1982])—a case factually distinguishable from this one—is not persuasive. In Ferrer, the driver of a vehicle struck a young girl who ran into the street. At trial, the driver testified that, as he was driving 15 to 20 miles per hour, he saw the girl step off the sidewalk and run between two parked cars and into the street. The driver also testified that he stopped his vehicle several feet away from the girl but that she ran into the driver’s side door of the vehicle (id. at 290-291). Plaintiffs, the girl and her guardian, presented evidence that the girl was struck by the front of the vehicle and medical evidence that the injuries she sustained were not consistent with the driver’s claim that she had run into his door (id. at 291). Plaintiffs claimed, citing New York City traffic regulations, that, while the posted speed limit on the road was 30 miles per hour, the speed at which the driver was traveling (15 to 20 miles per hour) was unreasonable because of the presence of children in the area and a double-parked vehicle that reduced the driver’s maneuverability {id.). In light of these facts, the Court of Appeals determined that the questions of whether the driver was negligent and whether he was faced with an emergency situation were for the jury (id. at 292-293). In the case before us, however, the uncontradicted evidence is that the driver did not see plaintiff leave the sidewalk and enter the street. According to the driver, plaintiff “came suddenly from between the [parked] cars,” and plaintiff’s testimony is consistent with the driver’s account. Thus, unlike the facts in Ferrer, plaintiff darted into the street and the driver had no opportunity to avoid him. Concur—Gonzalez, P.J., Buckley, Catterson and McGuire, JJ.

Our quarrel is not with the dissent’s effort to make plaintiff s case for him, but only with the way the dissent endeavors to make that case.