Johnson v. First Student, Inc.

Kane, J. Appeal from a judgment of the Supreme Court (Donohue, J.), entered March 16, 2007 in Ulster County, upon a verdict rendered in favor of defendants. Defendant RA. Kristoferson (hereinafter defendant), who was driving a school bus owned by defendant First Student, Inc., rear-ended a vehicle driven by plaintiff Lizette Johnson (hereinafter plaintiff). Just prior to the accident, plaintiff, who had been driving in front of defendant, stopped her vehicle for traffic to pass so that she could make a left-hand turn. Plaintiff and her husband, derivatively, commenced this action to recover for injuries allegedly resulting from this accident. At the end of trial, the jury unanimously found that defendants were not negligent. Supreme Court denied plaintiffs’ oral motion to set aside the verdict. Plaintiffs appeal. The jury’s verdict cannot stand. Where a moving vehicle is involved in a rear-end collision with a stopped vehicle, a prima [493] facie case of negligence arises against the operator of the moving vehicle, requiring that driver to provide an adequate, non-negligent explanation for the collision (see Nichols v Turner, 6 AD3d 1009, 1012 [2004]; Rodriguez-Johnson v Hunt, 279 AD2d 781, 781-782 [2001]; Countermine v Galka, 189 AD2d 1043, 1044-1045 [1993]). A mechanical failure or sudden and abrupt stop of the vehicle in front can constitute a sufficient explanation to overcome the inference of negligence (see Rodriguez-Johnson v Hunt, 279 AD2d at 782). It is undisputed that plaintiffs vehicle was lawfully stopped when defendants’ bus approached from behind and collided with it, establishing a prima facie case of negligence. Defendants did not allege that the brakes failed; defendant testified that she inspected the brakes on the bus twice that day and did not notice any problems (see Pincus v Cohen, 198 AD2d 405, 406 [1993]). Testimony of plaintiff, her passenger and defendant negated any claim of an emergency situation or an abrupt stop. These witnesses all testified that plaintiff stopped and utilized her directional signal a sufficient distance prior to the turn, leaving adequate space and time for defendant to react. Defendant testified that when she came around a curve in the road, plaintiffs vehicle was 400 to 500 feet ahead of her and did not move after she first saw it. Defendant further testified that although she applied the brakes, the bus slid or skidded forward, possibly due to the wet roadway. This did not constitute an adequate explanation so as to rebut the inference of negligence, especially considering her awareness of the weather, the road conditions and the stopped vehicle some 400 feet in front of her (see Kosinski v Sayers, 294 AD2d 407, 408 [2002]; Sabbagh v Shalom, 289 AD2d 469, 469 [2001]; Downs v Toth, 265 AD2d 925, 925 [1999]; Pincus v Cohen, 198 AD2d at 406; Benyarko v Avis Rent A Car Sys., 162 AD2d 572, 573 [1990]; see also Tesiero v Kiskis, 263 App Div 171, 173-174 [1942], affd 288 NY 639 [1942]). Because the only explanation for the accident involved negligence by defendant, the verdict must be set aside. Although we agree with the dissent’s determination that Supreme Court’s jury instructions did not adequately provide the jury with the proper legal standard, we decline to base our decision on that argument as it was not raised on appeal (see Matter of County of Sullivan [Basile], 43 AD3d 598, 599 [2007]). Even under the charge as given, however, the evidence so preponderated in favor of plaintiffs that the jury’s verdict in defendants’ favor could not have been reached on any fair interpretation of that evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). [494] Had plaintiffs moved for a directed verdict, we would reverse and enter a judgment in their favor on the issue of liability. By failing to move for a directed verdict on the issue of liability, however, plaintiffs conceded that the question was one for the jury and could not be decided as a matter of law (see Miller v Miller, 68 NY2d 871, 873 [1986]). We are thus relegated to determining whether the verdict is against the weight of the evidence; finding that it is, we must remit for a new trial (see Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]). Mercure, J.P., and Malone Jr., J., concur.