Passos v. MTA Bus Co.

129 A.D.3d 481, 13 N.Y.S.3d 4

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 2015
• Docket: 300386/11 14010
• Status: Published

Opinions

Orders, Supreme Court, Bronx County (Barry Salman, J.), entered September 13, 2013, and October 21, 2013, which granted plaintiffs’ motions for summary judgment on the issue of liability, reversed, on the law, without costs, and the motions denied.

On May 3, 2010 three cars were involved in a double rear end collision on Second Avenue, between 78th and 79th Streets. The first vehicle was driven by nonparty DiPaoli, the middle vehicle, a truck, was driven by plaintiff Passos (plaintiffs Miranda and Mr. Brown were passengers), and the rear vehicle (an MTA bus) was driven by defendant Victor Moses. At his deposition, DiPaoli testified that he was at a complete stop at a red light, and that he was hit twice in the rear. He described the second impact as “substantially less [forceful] than the first impact.”

Plaintiffs moved for summary judgment against the MTA and the driver of the bus (MTA defendants), claiming that the driver of the bus failed to maintain a safe distance between the bus and the Passos truck. The motion court granted plaintiffs’ motions for summary judgment. We reverse, and deny the motions.

When approaching another vehicle from behind, drivers are required to maintain a reasonably safe rate of speed, maintain control over the vehicle, and use reasonable care to avoid a collision, by, among other things, including maintaining a safe distance (Vehicle and Traffic Law § 1129 [a]). Under the law applicable to rear end collisions, a presumption of negligence is established by proof that a stopped car was struck in the rear (Stalikas v United Materials, 306 AD2d 810, 810 [4th Dept 2003], affd 100 NY2d 626 [2003]). However, that presumption can be rebutted if the operator of the rear vehicle comes forward with an adequate non-negligent explanation for the accident (id.; Vavoulis v Adler, 43 AD3d 1154, 1155 [2d Dept 2007]).

The Court of Appeals decision in Tutrani v County of Suffolk (10 NY3d 906 [2008]) is instructive. In that case, a defendant police officer abruptly came to a near stop in the middle of a roadway (id. at 907). The plaintiff, traveling immediately behind the police vehicle, was able to stop “within a half a car length” of the vehicle without striking it (id.). Seconds later, a third car rear-ended the plaintiffs car (id.). The jury rendered a verdict apportioning liability 50% against the police officer and 50% against the third car (id.). The Second Department reversed, and found the rear car 100% liable for the accident (42 AD3d 496, 497 [2007], revd 10 NY3d 906 [2008]). The Court of Appeals reversed (10 NY3d at 907). Recognizing the presumption that a rear end collision with a stopped car establishes a prima facie case of liability on the part of the driver of the rear vehicle, the Court nonetheless concluded that the front driver/police officer was not absolved of liability because his actions “created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear end collisions. That a negligent driver may be unable to stop his or her vehicle in time to avoid a collision with a stopped vehicle is a normal or foreseeable consequence of the situation created by [the police officer’s] actions” (id. at 908 [internal citations and quotation marks omitted]).

Viewing this record, including DiPaoli’s deposition testimony, in the light most favorable to the MTA defendants, we cannot conclusively determine liability as a matter of law (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). DiPaoli, the driver of the front vehicle, testified that his vehicle was struck in the rear, in a manner he described as a “decent jolt.” He then testified to feeling a second “impact from behind.” Given uncontested evidence that Passos’s truck was directly behind the DiPaoli car, and that the MTA Bus was behind Passos’s truck, this testimony raises an issue of fact as to whether Passos hit DiPaoli before being rear-ended. In a multi vehicle accident, “where, as here, there is a question of fact as to the sequence of the collisions,” it cannot be said as a matter of law there was only one proximate cause of plaintiffs’ injuries (Vavoulis, 43 AD3d at 1156).

The police accident report, which the dissent cites as evidence that the bus precipitated a chain collision, conflicts with DiPaoli’s testimony, bolstering the conclusion that there are disputed issues of fact.

A jury question is presented — namely, whether Passos’s collision with the DiPaoli vehicle created a foreseeable danger that the MTA defendants would also have to brake aggressively, increasing the risk of a second rear end collision (Tutrani, 10 NY3d at 908; Vavoulis, 43 AD3d at 1156; Carhuayano v J&R Hacking, 28 AD3d 413, 414-415 [2006]; Schmidt v Guenther, 103 AD3d 1162, 1163 [4th Dept 2013]). Alternatively the jury may determine that the accident was the sole fault of the MTA defendants. In either event, our role on these motions is limited to issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

Concur— Gonzalez, P.J., Renwick, DeGrasse and Gische, JJ.