Frutchey v. Felicita

Crew III, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered October 20, 2006 in Chemung County, which denied a motion by defendants Michael V DeLosa and Allen’s Plumbing, Heating and Air Conditioning, Inc. for summary judgment dismissing the complaint against them. This action arises out of a three-car accident that occurred on Route 427 in the Town of Ashland, Chemung County. At the [1142] time of the accident, it was snowing and the roadway was covered with two to three inches of slush. Defendant Jacqueline Felicita was traveling eastbound when she lost control of her vehicle and entered the westbound lane of travel where she collided with a westbound vehicle operated by Linda Nichols. Defendant Michael V DeLosa was operating a westbound vehicle owned by defendant Allen’s Plumbing, Heating and Air Conditioning, Inc. (hereinafter collectively referred to as defendants) behind Nichols and, when he observed Felicita cross over into his lane of travel, he immediately turned into the eastbound lane in an effort to avoid the collision. Unfortunately, Felicita’s vehicle caromed off Nichols’ vehicle back into the eastbound lane and collided with the vehicle driven by DeLosa. At the time of the accident, plaintiff Damon Frutchey, an infant, was a passenger in the Felicita vehicle and was seriously injured. Consequently plaintiff Gregg Frutchey, the child’s father, commenced this action individually and on the child’s behalf. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint on the ground that Felicita’s conduct constituted the sole proximate cause of the accident. Supreme Court denied the motion, prompting this appeal. It is axiomatic that when a person is confronted with a sudden and unforeseen occurrence not of his or her own making that person will not be considered negligent for reasonable actions taken in response to such emergency (see e.g. Caristo v Sanzone, 96 NY2d 172, 174 [2001]). In that regard, we have held that a driver is faced with just such an emergency when an oncoming car crosses into the driver’s lane of travel (see Burnell v Huneau, 1 AD3d 758, 760 [2003]). While it ordinarily is a question of fact as to whether a driver’s response to an emergency is reasonable, where, as here, the evidence establishes the reasonableness of the driver’s response, summary judgment is appropriate (see Davis v Pimm, 228 AD2d 885, 887-888 [1996], lv denied 88 NY2d 815 [1996]). Here, DeLosa testified that after following Nichols for some distance without incident, he suddenly saw Felicita’s vehicle sliding into his lane of travel. In order to avoid a collision with Felicita and/or Nichols, he turned into the oncoming lane and was struck by Felicita after her vehicle caromed off Nichols’ vehicle and was propelled back into the eastbound lane. To be sure, there is an affidavit by an expert who opines that DeLosa should have pulled to the right onto the shoulder of the westbound lane and that, in so doing, he would have avoided a collision with the Felicita vehicle. This, of course, presumes that [1143] DeLosa should have appreciated that Felicita’s vehicle was going to veer off Nichols’ vehicle back into her own lane of travel instead of propelling Nichols’ vehicle into his vehicle had he turned to the right. Quite clearly, the law “presumes no such prescience” on the part of a person confronted with an emergency (Smith v Brennan, 245 AD2d 596, 598 [1997]). Cardona, P.J., and Rose, J., concur.