Campbell v. Central New York Regional Transportation Authority

28 A.D.3d 1083, 814 N.Y.S.2d 456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 2006
• Status: Published

Opinions

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered August 17, 2005. The order, insofar as appealed from, granted defendant’s motion for summary judgment in part, dismissing the claim for personal injuries.

It is hereby ordered that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the motion is denied in its entirety and the claim for personal injuries is reinstated.

Memorandum: While crossing a street in his highly customized wheelchair, plaintiff was struck by a bus owned by defendant and operated by one of its employees. The wheelchair was damaged beyond repair, and, as a result, plaintiff was forced to use a wheelchair loaned to him by a local medical center. That wheelchair was not customized for plaintiff’s “profound deformities” and, within two months, plaintiff developed “skin necrosis and abscess formation which required multiple surgical procedures to repair.” Plaintiff commenced this action seeking damages for those personal injuries as well as the replacement cost of his wheelchair. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for partial summary judgment on the issue of proximate cause. Supreme Court granted defendant’s motion in part, dismissing plaintiffs claim for personal injuries but left intact the complaint to the extent that plaintiff sought the replacement cost of his wheelchair. The court also denied plaintiff’s cross motion. Plaintiff appeals from that part of the order granting defendant’s motion in part but does not appeal from that part of the order denying his cross motion. We note that, in support of its motion and on appeal, defendant does not dispute that the skin necrosis and abscess formation were caused by plaintiff’s use of a temporary wheelchair not customized for plaintiffs body.

We agree with plaintiff that the court should have denied defendant’s motion in its entirety. “As a general proposition, liability for negligence turns upon the foreseeability of any harm resulting from the careless conduct, not upon the foreseeability of the exact nature and extent of the injury which does in fact ensue” (Poplar v Bourjois, Inc., 298 NY 62, 67 [1948]), and “[t]he concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314 [1980], rearg denied 52 NY2d 784 [1980]). Thus, the Court of Appeals has stated that, “[g]iven the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established” (id. at 315; see Ziecker v Town of Orchard Park, 75 NY2d 761, 762-763 [1989]).

In order to establish a prima facie case, a “plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian, 51 NY2d at 315; see Kush v City of Buffalo, 59 NY2d 26, 32-33 [1983]). Although there are times when “[a]n interruption of the nexus between a defendant’s negligence and the plaintiffs injury by the act of a third party may affect defendant’s liability” (Kush, 59 NY2d at 33), the intervening act must be “ ‘extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct’ ” (Maheshwari v City of New York, 2 NY3d 288, 295 [2004], quoting Derdiarian, 51 NY2d at 315). “When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist” (Kush, 59 NY2d at 33; see Derdiarian, 51 NY2d at 315). “Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, . . . these issues generally are for the fact finder to resolve” (Derdiarian, 51 NY2d at 315; see Kriz v Schum, 75 NY2d 25, 34 [1989]; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636 [1988]). Invariably, summary judgment is appropriate “where only one conclusion may be drawn from the established facts” (Derdiarian, 51 NY2d at 315; see Kriz, 75 NY2d at 34).

In our view, defendant failed to establish its entitlement to judgment as a matter of law with respect to plaintiffs claim for personal injuries because its submissions establish that there is a triable issue of fact whether the accident was a proximate cause of plaintiffs injuries or whether an intervening act broke the causal nexus.

All concur except Hurlbutt, J.E, and Gorski, J., who dissent and vote to affirm in the following memorandum.