Eunice Animah, Plaintiff, v. DTG ENTERPRISES INC

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Supreme Court, Bronx County, New York.

Eunice Animah, Plaintiff, v. Tabi Agyei and DTG ENTERPRISES, INC., Defendants.

302550/2016

Decided: March 27, 2019

James Newman, Esq., James Newman, P.C., Bronx, NY, for plaintiff Summer Tinnie, Esq., Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, NY, for defendants

This motion presents a fundamental, recurring issue in motor vehicle accident litigation: does an assertion that the driver of a rear-ended vehicle made a sudden stop immediately before the accident raise a triable issue of fact as to whether the defendant driver of the rear-ending vehicle has a non-negligent explanation for the accident? For the reasons that follow, the court concludes that an assertion that the driver of a rear-ended vehicle made a sudden stop on a local public roadway within the City of New York, standing alone, is insufficient to raise a triable issue of fact as to whether the defendant driver has a non-negligent explanation.1 In light of this conclusion, plaintiff's motion for summary judgment on the issue of defendants' liability is granted.

On June 28, 2017, plaintiff was a passenger in a taxi operated by a non-party driver. The vehicle occupied by plaintiff was traveling on East Tremont Avenue near its intersection with Castle Hill Avenue in the Bronx when the accident giving rise to this litigation occurred. There is no dispute as to the basic facts underlying the subject accident: (1) a vehicle operated by non-party Vinson was double parked in a lane of East Tremont Avenue; (2) the vehicle occupied by plaintiff stopped behind the double-parked vehicle; and (3) defendants' vehicle (operated by defendant Agyei and owned by defendant DTG Enterprises, Inc.) struck the rear of the vehicle occupied by plaintiff.

Plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as a result of the accident, and defendants interposed an answer.

Plaintiff seeks summary judgment on the issue of defendants' liability, invoking the familiar principle that a rear-end collision with a stopped (or stopping) vehicle gives rise to a prima facie showing that the operator of the rear-ending vehicle is liable for injuries sustained by a plaintiff in the vehicle that was struck in the rear (see, e.g., Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]). In support of her motion, plaintiff submitted an affidavit, which provides the facts necessary to trigger the prima-facie-case principle, and the police accident report generated as a result of the accident.2

Defendants oppose the motion, arguing that it is premature because depositions have yet to be conducted, and that triable issues of fact exist as to defendants' liability for plaintiff's injuries. With respect to the latter argument, defendants assert that a sudden stop by the vehicle that was rear ended can constitute a reasonable explanation for a hit-in-the-rear accident, and that a triable issue of fact exists as to whether the driver of the vehicle in which plaintiff was a passenger brought the vehicle to a sudden stop. Defendants provide the affidavit of defendant Agyei, who avers that the vehicle in which plaintiff was a passenger "stopped short in front of [defendants'] vehicle," causing the hit-in-the-rear collision between the two vehicles.

The operator of a motor vehicle is required to follow myriad rules when operating a vehicle. Among those rules are the fundamental obligations of a driver to make reasonable use of his and her senses (and, concomitantly, be aware of traffic conditions), drive at a safe rate of speed under the existing conditions, and maintain a safe distance from other vehicles under the existing conditions (see Miller v DeJouza, 165 AD3d 550 [1st Dept 2018]). In light of these fundamental obligations, "a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the second vehicle [i.e., the vehicle that struck the rear end of another vehicle]" (Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999]; see, e.g., Tutrani v County of Suffolk, supra; Bajrami v Twinkle Cab Corp., 147 AD3d 649 [1st Dept 2017]; Matos v Sanchez, 147 AD3d 585 [1st Dept 2017]; Maisonet v Roman, 139 AD3d 121 [1st Dept 2016]; Morgan v Browner, 138 AD3d 560 [1st Dept 2016]; Cruz v Lise, 123 AD3d 514 [1st Dept 2014]; Cabrera v Rodriguez, 72 AD3d 553 [1st Dept 2010]). After all, a driver making reasonable use of his or her senses, driving at a safe rate of speed under the existing conditions, and maintaining a safe distance from other motor vehicles should not hit the vehicle in front of him or her.

Of course, though, non-tortious accidents do happen. Thus, the law recognizes that the presumption of liability on the part of the driver of the rear-ending vehicle is rebuttable: that driver may avoid liability if he or she provides a non-negligent explanation for the accident (see, e.g., Johnson v Phillips, supra). Does an assertion that the driver of the rear-ended vehicle made a sudden stop raise a triable issue of fact as to whether the defendant driver of the rear-ending vehicle has a non-negligent explanation for the accident? Generally, such an assertion is not sufficient to raise a triable issue of fact.

"A claim that the lead driver came to a sudden stop, standing alone, is insufficient to rebut the presumption that the rearmost driver was negligent and the stopped vehicle was not negligent" (Ly Giap v Hathi Son Pham, 159 AD3d 484, 485 [1st Dept 2018]; see, e.g., Bajrami v Twinkle Cab Corp., supra; Morgan v Browner, supra; Cruz v Lise, supra; Cabrera v Rodriguez, supra; Francisco v Schoepfer, 30 AD3d 275 [1st Dept 2006]; Woodley v Ramierez, 25 AD3d 451 [1st Dept 2006]; Johnson v Phillips, supra).3 This is because, as noted above, a driver has a duty to maintain a safe distance between his or her vehicle and the vehicle ahead so as to avoid a collision with the latter should it stop (see, e.g., Morales v Consolidated Bus Transit, Inc., 167 AD3d 457 [1st Dept 2018]; Chame v Kronen, 150 AD3d 622 [1st Dept 2017]; Tejeda v Aifa, supra; Corrigan v Porter Cab Corp., 101 AD3d 471 [1st Dept 2012]; Dattilo v Best Transp. Inc., 79 AD3d 432 [1st Dept 2010]; Dicturel v Dukureh, 71 AD3d 558 [1st Dept 2010]; Soto-Maroquin v Mellet, 63 AD3d 449 [1st Dept 2009]). The contours of that duty in a given situation depend on the prevailing conditions (e.g., density of traffic, condition of roadway, weather) (see Renteria v Simakov, 109 AD3d 749 [1st Dept 2013]; Mitchell v Gonzalez, 269 AD2d 250 [1st Dept 2000]). If a driver fulfills that duty, he or she should not hit the rear end of the vehicle in front of the driver's vehicle, even if the lead vehicle stops suddenly.4

The general rule that a sudden stop by the driver of the rear-ended vehicle, standing alone, is insufficient to raise a triable issue of fact as to whether the defendant driver of the rear-ending vehicle has a non-negligent explanation for the accident is not absolute. The First Department has made it clear that a sudden stop by the driver of the rear-ended vehicle may, under certain circumstances, provide the driver of the rear-ending vehicle with a non-negligent explanation.

In Baez-Pena v MM Truck and Body Repair, Inc., 151 AD3d 473 (2017), the plaintiff was operating his motor vehicle on the Major Deegan Expressway when a collision occurred between his vehicle and a box truck owned by defendant Sajo Transportation and operated by defendant Pena, who was employed by defendant MM Truck and Body Repair, Inc. The accident occurred at approximately 3:45 p.m. on a dry roadway when the plaintiff's vehicle and the defendants' box truck reached the Willis Avenue Bridge overpass in the right lane of the south-bound Major Deegan Expressway. Traffic at that time was "medium." According to the plaintiff, he was driving at a speed of no greater than 35 miles per hour and was approximately two car lengths behind defendants' truck, which was travelling at a similar speed. The container attached to the defendants' truck struck the overpass, and the truck came to a complete and sudden stop. The plaintiff applied his brakes with strong pressure but was unable to avoid hitting the rear of the truck.

The plaintiff commenced an action against the defendants (and entities responsible for a construction project on the Willis Avenue Bridge) to recover damages for personal injuries he allegedly sustained as a result of the accident. The defendants sought summary judgment dismissing the complaint (and all cross claims) as against them, contending that the plaintiff rear-ended the defendants' truck and had no non-negligent explanation for the collision. The plaintiff opposed the motion, "argu[ing] that the manner in which [defendant] Pena operated the box truck created the chain of events that caused the accident, as the truck came to a sudden stop while [the plaintiff's] vehicle was two car lengths behind it" (151 AD3d at 475).

The motion court granted the defendants' motion, finding that the plaintiff failed to maintain a reasonably safe distance between his vehicle and the defendants' truck.

The First Department reversed the order granting the defendants' motion and denied the motion. The Court wrote, in pertinent part, that

"A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima facie case of negligence on the part of the operator of the rear-ending vehicle, which may be rebutted if that driver can provide a non-negligent explanation for the accident. The defendants argue that [the] plaintiff's contention that a sudden, unforeseeable stop by a lead vehicle can provide such a non-negligent explanation is contrary to this Court's consistent holding that an allegation that the lead vehicle suddenly stopped is insufficient to rebut the presumption of negligence on the part of the rear-ending vehicle. However, this is simply not accurate.

"This is not to say that there are not many cases in which this Court has held that a sudden stop is insufficient; there are. However, the Pena defendants do not cite any cases from this Court, nor are we aware of any, where a sudden stop by a vehicle on a highway, with normal traffic conditions, resulted in summary judgment in favor of that vehicle" (id. at 476 [internal citations and quotation marks omitted; emphasis added] ).

The Baez-Pena Court highlighted the Court of Appeals' decision in Tutrani v County of Suffolk (supra). The motor vehicle accident giving rise to the litigation in Tutrani occurred on the service road of the Long Island Expressway during morning rush-hour traffic. The defendant police officer was operating his marked police vehicle in the middle lane of the three-lane highway. As the Court of Appeals summarized the trial testimony,

"[the officer] abruptly decelerated from approximately 40 miles per hour to 1 or 2 miles per hour while changing lanes. Plaintiff, traveling immediately behind the officer, slammed on her brakes and was able to stop within 'a half a car length' of [the officer's] vehicle without striking it. Seconds later, [the] plaintiff's vehicle was rear-ended by a vehicle driven by [another defendant]" (10 NY3d at 907).

A jury apportioned half of the fault for the plaintiff's injuries to the defendant officer and half to the driver of the vehicle that rear-ended the plaintiff's vehicle.

The Second Department reversed the judgment entered on the verdict, determining that the defendant officer's conduct was not a proximate cause of the plaintiff's injuries because the plaintiff was able to come to a complete stop behind the officer's vehicle without making contact with it (42 AD3d 496, 497 [2007]).

The Court of Appeals disagreed with the Second Department's conclusion. The trial evidence, held the Court of Appeals, permitted the jury to find that the defendant officer's conduct was a proximate cause of the plaintiff's injuries; the jury rationally found that the defendant officer's conduct set into motion a foreseeable chain of events that resulted in the hit-in-the-rear accident between the plaintiff's vehicle and the vehicle that struck it (10 NY3d at 907-908). The Court of Appeals stressed that the defendant officer "abruptly slowed his vehicle to a near stop in a travel lane of a busy highway where [drivers of] vehicles could reasonably expect that traffic would continue unimpeded" (id. at 907).

The sudden stop in Baez-Pena was sufficient to raise a triable issue of fact as to whether the rear-ending driver had a non-negligent explanation for the accident because that driver "could have 'reasonably expected that traffic would continue unimpeded' " (Baez-Pena v MM Truck and Body Repair, Inc., 151 AD3d at 477, quoting Tutrani v County of Suffolk, 10 NY3d at 907). The expectation of a driver operating a motor vehicle on a highway with normal conditions — that traffic will continue unimpeded — is not shared by one operating a motor vehicle on a local public municipal roadway, particularly within the City of New York. The operator of a motor vehicle traveling on a local public roadway within the City of New York must anticipate a variety of events, including a sudden stop by a vehicle in front of the operator's vehicle. Put simply, sudden stops on local public roadways within the City of New York are immanently foreseeable, and the operator of a vehicle travelling on such a roadway should therefore expect that the flow of traffic will be interrupted.

Synthesizing the First Department case law reflecting the general rule that a sudden stop, standing alone, does not constitute a non-negligent explanation for an accident with that Court's decision in Baez-Pena, the undersigned concludes that an assertion that the driver of a rear-ended vehicle made a sudden stop on a local public roadway within the City of New York, standing alone, is insufficient to raise a triable issue of fact as to whether the driver of the rear-ending vehicle has a non-negligent explanation.5

Plaintiff's affidavit established, prima facie, that the vehicle in which she was a passenger was stopped when it was struck in the rear by defendants' vehicle. Because the hit-in-the-rear accident occurred on a local public roadway within the City of New York, defendants were required to offer an explanation for the accident that entailed more than a claim that the vehicle in which plaintiff was a passenger stopped suddenly. Defendant Agyei merely averred, however, that the vehicle in which plaintiff was a passenger "stopped short in front of [defendants'] vehicle." Because an assertion that the driver of a rear-ended vehicle made a sudden stop on a local public roadway within the City of New York, standing alone, is insufficient to raise a triable issue of fact as to whether the defendant driver has a non-negligent explanation, plaintiff is entitled to summary judgment on the issue of defendants' liability. Moreover, as an "innocent passenger" in a rear-ended vehicle, plaintiff is entitled to summary judgment on the issue of comparative fault (see Oluwatayo v Dulinayan, 142 AD3d 113 [1st Dept 2016]), and dismissal of defendants' third affirmative defense.

The court rejects defendants' contention that plaintiff's motion concerning defendants' liability is premature because depositions have yet to be taken. "Depositions are unnecessary [before the court determines the liability motion], since defendants have personal knowledge of the facts, yet failed to meet their obligation of laying bare their proof and presenting evidence sufficient to raise a triable issue of fact" (Thompson v Pizzaro, 155 AD3d 423 [1st Dept 2017]). Defendant Agyei has personal knowledge of the facts relevant to defendants' liability and submitted an affidavit. The contents of that affidavit are simply insufficient to raise a triable issue of fact as to defendants' liability. Issues relating to plaintiff's damages, including the issue of whether plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102(d), remain open and are proper subjects for disclosure.

Accordingly, it is hereby ordered that plaintiff's motion is granted, and plaintiff is entitled to summary judgment on the issues of defendants' liability and comparative fault; and it is further,

ORDERED that defendants' third affirmative defense is dismissed.

This constitutes the decision and order of the court.

Date: March 27, 2019

Bronx, NY

_________________________

Hon. John R. Higgitt

Acting Supreme Court Justice

FOOTNOTES

1.   The court's conclusion is based on its review and application of case law from the Appellate Division, First Department.

2.   The police report is largely hearsay, and contains no party admissions.

3.   A sudden stop by the driver of the rear-ended vehicle coupled with some other circumstance that increased the likelihood of an accident can raise a triable issue of fact as to whether the defendant driver of the rear-ending vehicle has a reasonable explanation for a hit-in-the-rear accident (see, e.g., Tejeda v Aifa, 134 AD3d 549 [1st Dept 2015] [triple rear-end-collision accident]; Passos v MTA Bus Company, 129 AD3d 481 [1st Dept 2015] [double rear-end-collision accident]; Hernandez v Advance Transit Co., Inc., 101 AD3d 483 [1st Dept 2012] [abrupt lane change coupled with sudden stop by driver of rear-ended vehicle]; see also Cabrera v Rodriguez, supra [suggesting that sudden lane change into lane of rear-ending vehicle coupled with sudden stop by driver of rear-ended vehicle would raise triable issue of fact as to non-negligent explanation]; Stringari v Peerless Importers, Inc., 304 AD2d 413, 413 [1st Dept 2003] ["Wet, slippery roadway conditions do not, alone, constitute an adequate non-negligent explanation, absent proof that the condition was unanticipated"]; Schuster v Amboy Bus Co., 267 AD2d 448, 448—449 [2d Dept 1999] ["where the operator of the moving vehicle alleges that the accident was the result of brake failure and presents evidence that the brake problem was unanticipated, and that reasonable care had been exercised to keep the brakes in good working order, he or she has demonstrated a nonnegligent explanation for the happening of the accident"] ).

4.   Because a driver has a duty to maintain a safe distance between his or her vehicle and the vehicle ahead so as to avoid a collision, the emergency doctrine generally is not a viable defense for a hit-in-the-rear accident (see Maisonet v Roman, 139 AD3d 121, 122 [1st Dept 2016] ["The sudden emergency doctrine defense is frequently interposed in motor vehicle cases involving rear-end collisions. It is, however, usually not a viable defense unless the driver of the offending vehicle is faced with a sudden and unexpected circumstance that is not of his or her own making."] [emphasis added] ).

5.   Sudden-stop defenses are common in motor vehicle accident litigation, and frequently raised in summary-judgment practice. The rule that the court has synthesized from the First Department's precedents promotes predictability and may curb seemingly inconsistent (and potentially arbitrary) decisions on summary judgment motions.

John R. Higgitt, J.