Shinder v. State

84 A.D.2d 252, 446 N.Y.S.2d 507, 1982 N.Y. App. Div. LEXIS 14916

Opinions

OPINION OF THE COURT

Kane, J.

Claimant was severely injured at about 10:00 p.m. Sunday evening, May 16, 1976, while operating his 1974 Dodge Colt sedan southerly along the New York State Thruway in the vicinity of New Paltz, New York. He was traveling in the rain at about 50 miles per hour with headlights and windshield wipers operating when suddenly and unexpectedly he collided with a black Brahma bull.

The critical issue to be resolved on this appeal is whether, under the circumstances presented, a hazardous condition existed, and whether the State, with knowledge thereof, failed to exercise reasonable care to prevent the subsequent injury to claimant. The facts are not in dispute. Accordingly, to determine whether ordinary care was exercised, the test is one of foreseeability (Le Roux v State of New York, 307 NY 397).

At 4:00 p.m. on the afternoon of May 16, 1976, a State trooper on patrol in the New Paltz area

Footnotes

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* was informed that “there was a bull or cow or some animal on the highway or in the vicinity of the highway around Milepost 75”. The trooper proceeded to that area, found nothing, and left. At about 8:00 p.m. the same trooper was again advised that there was an animal in the area of the Thruway at milepost 75. He immediately proceeded to that position in company with another trooper and, upon arrival, observed a black Brahma bull in the grass median separating the northbound and southbound lanes of the Thruway. It was now dusk and the traffic was very heavy. With the emergency lights operating on both vehicles, the two troopers drove their vehicles along the median in an attempt to keep the bull out of the traffic lanes. The bull suddenly maneuvered between their vehicles, crossed the two lanes of traffic, and disappeared in the wooded area along the west side of the Thruway. Several cars were required to slam on their brakes to avoid a collision with the bull. Both troopers remained at the scene for three to five minutes and then left without making any further effort to locate the bull, one trooper testifying, “I’m not going into the woods after a Brahma bull.”

At approximately 10:00 p.m. that night, this same trooper received a report of a car accident at milepost 74.6 of the southbound lane of the Thruway. Upon arrival at the scene, claimant was found lying on the grass off the shoulder of the road. His automobile was in an adjacent ditch with considerable damage to its front end. No other vehicles were involved in the accident. The next day, a dead black Brahma bull was found in the wooded area approximately 100 yards from the scene of the accident.

The Court of Claims found against the State on the issue of liability. In our view, this determination is proper. Initially, we note that the determination of liability on the part of the State does not rest upon an inference based upon an inference as urged by the State. The conclusion that claimant’s accident was caused by a collision with a black Brahma bull that had been sighted in the area of the accident on two prior occasions that day is not a remote or conjectural inference or based upon speculation. A determination that the same bull was found dead the next day 100 yards from the scene of the accident is one founded upon a series of natural and logical inferences drawn from the facts proven (Market v Spencer, 5 AD2d 400, 403, affd 5 NY2d 958). The evidence, though circumstantial, fully supports claimant’s version of the happening of the accident. Moreover, the theory of liability is based upon the violation of a duty imposed upon the State to either warn motorists of the existence of a hazardous condition or remove it from the scene (Rinaldi v State of New York, 49 AD2d 361). The rule is a rule of reason. Here, there was actual notice of the presence of a black Brahma bull on the Thru way premises. The trooper knew that the bull returned to the grass on the median once and it would be reasonable to assume that it might return again. The proper procedures to be followed were later outlined in the testimony of Trooper Hopper who assisted in the investigation of the accident the following day. He described a similar situation occurring two or three years before. On that occasion, he contacted a farmer in the area known to harbor Brahma bulls and obtained his assistance in capturing the animal, thus avoiding the obvious possibility of an accident such as the one that occurred this time. It further seems reasonable to assume that the owners of Brahma bulls would be within the knowledge of those in the area two or three years after the incident related by Trooper Hopper.

In our view, the conduct of the State trooper was, negligent, and that negligence was the proximate cause of plaintiff’s injury.

The judgment should be affirmed, with costs.

The New Paltz patrol area is between milepost 58 and milepost 76.