Wolfe v. County of Cattaraugus

239 A.D.2d 914, 659 N.Y.S.2d 634

Opinions

Order affirmed with costs. Memorandum: We affirm for reasons stated at Supreme Court (Feeman, Jr., J.). Furthermore, for the dissent to maintain that James H. Tingue, Sr. (defendant), owed no duty to plaintiffs’ decedents and plaintiffs’ infants is tantamount to a determination that one who creates a dangerous condition is not responsible for the foreseeable consequences of his conduct. That theory was rejected long ago (see, Palsgraf v Long Is. R. R. Co., 248 NY 339, rearg denied 249 NY 511).

"There is no basis on this record for concluding, as a matter of law, that a superseding cause or other factor intervened to break the nexus between defendant’s negligence and plaintiff’s injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312, rearg denied 52 NY2d 784). The record establishes that the accident occurred at night on an unlit country road, at a time when the visibility was impaired due to foggy conditions and apparently some traffic control signs were obscured by foliage. Defendant therefore created a dangerous condition when he knocked down the double arrow sign warning motorists that the highway ended and it was necessary to turn left or right. Thus, plaintiffs’ decedents and plaintiffs’ infants, who were traveling on that road within the hour after the prior accident, were within the zone of foreseeable harm so as to give rise to a reasonable duty of care (see, Di Ponzio v Riordan, 89 NY2d 578). Under the factual circumstances herein, defendant’s negligence may have been a proximate cause of the injuries. Resolution of that issue is for the jury.

All concur except Lawton and Doerr, JJ., who dissent and vote to reverse in the following Memorandum.