Dowling v. Consolidated Carriers Corp.

Order, Supreme Court, New York County (Robert E. White, J.), entered August 1, 1983, which granted the motion of defendants-respondents for summary judgment dismissing the complaint, reversed, on the law, with costs, and the motion for summary judgment is denied, ¶ On July 14, 1980, the driver of a truck owned by J.H.T. Leasing Corp. and leased to Consolidated Carriers Corp. experienced recurrence of a mechanical problem with the truck in which the accelerator pedal occasionally sticks, does not elevate automatically when the driver’s foot is off it, and which the driver is able to correct only by tapping the pedal with his foot. The driver called the mechanics responsible for the maintenance of the truck who instructed him to drive the truck back into Manhattan. K At about 5:30 p.m. the truck was traveling westbound on the Long Island Expressway when the pedal stuck again as the truck was descending an incline. At that point the expressway curved slightly to the left. The driver looked at the pedal for a moment, during which period the truck swerved on to the shoulder of the expressway, striking two parked buses. The plaintiff, a passenger in the truck, suffered very severe injuries to his legs. H This action for damages was brought against what might be called in general terms the “truck defendants” and the “bus defendants”. Accepting for purposes of the motion that the presence of the buses on the shoulder of the Long Island Expressway violated section 1202 (subd [a], par 1, cl j) of the Vehicle and Traffic Law and subdivision d of section 80 of the Traffic Regulations of the City of New York and was therefore negligence, the bus defendants moved for summary judgment on the single ground that as a matter of law the negligence of the buses was not a proximate cause of the injuries sustained by the plaintiff. Finding dispositive the decision of the Court of Appeals in Sheehan v City of New York (40 NY2d 496, 499), Trial Term granted the motion to dismiss the action against the bus defendants. We disagree, and accordingly reverse and deny the motion for summary judgment dismissing the complaint. H Section 1202 of the Vehicle and Traffic Law provides in pertinent part: 11 “(a) Except when necessary to avoid conflict with other traffic, or when in compliance with law or the directions of a police officer or official traffic-control device, no person shall: 1i “1. Stop, stand or park a vehicle * * * H “j. On a state expressway highway or state interstate route highway, including the entrances thereto and exits therefrom, which are a part thereof, except in an emergency.” 11 Subdivision d of section 80 of the 676 Traffic Regulations provides: “Stopping or parking or operation of a motor vehicle is prohibited on the berm or shoulder adjacent to a parkway or an expressway as specified in § 79 of these regulations except for emergency purposes.” 11 Although section 1202 (subd [a], par 1, cl j) of the Vehicle and Traffic Law and subdivision d of section 80 of the Traffic Regulations appear to be addressed to the same problem, it becomes apparent on analysis that the Vehicle and Traffic Law section has a broader scope. As defined in the Vehicle and Traffic Law, the word “highway” includes both the roadway, the portion “ordinarily used for vehicular travel”, and the shoulder. (Vehicle and Traffic Law, §§ 118, 140; see, also, Darling v Village of Herkimer, 11 Misc 2d 593.) That the word “highway” was used in section 1202 (subd [a], par 1, cl j) with the explicit intent that the prohibitions of that section were to apply equally to the shoulder as well as to the roadway is underlined by the circumstance that the immediately preceding clause in section 1202 refers only to the word “roadways”. 11 In short, section 1202 (subd [a], par 1, cl j) appears clearly to embody a legislative judgment that stopping, standing or parking a vehicle either on the roadways or shoulders of State express highways or State interstate route highways, highways designed for fast-moving vehicular traffic, presents, except in carefully specified circumstances, an unacceptable danger of accidents. It is difficult to see how an event of the kind intended to be avoided by this inclusive statutory prohibition can reasonably be considered an unforeseeable, intervening event. 1i Trial Term’s reliance on Sheehan v City of New York (supra) seems to us misplaced. The differences between the Sheehan situation and that presented here are far more substantial than the similarities. Sheehan involved an accident occurring on the streets of the city. As described in the Court of Appeals opinion, a bus had come to a slow and gradual stop at an intersection, the driver having signaled his intent to stop through his brake lights, which had been observed by a following truck 150 feet behind the bus. The truck brakes did not hold, causing a collision in which a bus passenger was injured. A factual issue was raised by the contention that the bus, in violation of a section of the New York City Traffic Regulations, had failed to bring the bus to the indicated bus stop for the purpose of picking up or discharging passengers, the bus driver claiming that the bus stop was occupied by other vehicles. The Court of Appeals observed (at pp 502-503) that if the bus driver had pulled into the bus stop and picked up or discharged passengers, it could properly have pulled back into the traveling lane in which the accident occurred before proceeding across the intersection, in which event “it would, properly, have been in exactly the same position at which it found itself when it was hit. Or, if observing no prospective passengers in the stop and having none who wished to alight at that corner, the bus driver had decided not to go through the proper practice of pulling in and out of the stop, but, preparatory to crossing, had merely stopped in the traveling lane at the corner before doing so, his bus would have been in precisely the same position. In short, the bus at the time of the accident appears merely to have been at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop). The result of the sanitation truck’s brake failure would have been no different, if, perchance, a pedestrian or a vehicle other than the bus had been using the street at that point at that time and had instead become the target of the truck’s faulty brakes.” 11 The situation here is fundamentally different. On the facts accepted in the motion papers of the bus defendants, the buses were stopped where they had no right to be, in direct violation of statute and regulation, and where vehicles would have a right to be only in unusual, carefully limited circumstances. H As was observed by Presiding Justice Hopkins in what remains one of the ablest judicial discussions in this State of the issue: “The definition of proximate 677 cause has been elusive, probably because the public policy underlying the concept cannot be described other than in general terms.” (Pagan v Goldberger, 51 AD2d 508, 509.) The threshold question, of course, is whether the negligence alleged in fact caused the claimed injuries. (See Prosser, Law of Torts [4th ed], § 41.) There can be no doubt here on the facts conceded for purposes of the motion that the negligence of the bus defendants was a substantial cause of the injuries sustained by the plaintiff. Applying the several guidelines identified by Presiding Justice Hopkins in Pagan v Goldberger (supra, p 511) as relevant tools of analysis, we see little room for doubt that a factual issue as to proximate cause is presented. 11 The negligence of the bus defendants was closely, indeed immediately, connected in time and space to the injuries sustained by the plaintiff. The public policy is here embodied in both a statute and regulation which explicitly prohibit the conduct that we must assume to have been established for purposes of this motion. A legal relationship between the operators of the bus and other vehicular traffic, imposing a duty of care, is apparent in the circumstances, and implicit in both the statute and the regulation. Nor can there be perceived any basis for a finding that the event was not of a kind that was reasonably foreseeable. 11 The statute and the regulation were clearly designed with an awareness, based on general experience, that from time to time vehicles on high-speed State highways go on to the shoulder under circumstances that make the presence of standing or parked vehicles a source of danger. It matters not whether the driver of the truck here intended to go on to the shoulder because of mechanical failure, or in an effort to avoid another vehicle, or whether the truck did so because a steering wheel misfunctioned or as a result of driving error. As the Court of Appeals observed in Derdiarian v Felix Contr. Corp. (51 NY2d 308, 315) with regard to intervening causes: “Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.” (See Somersall v New York Tel. Co., 52 NY2d 157; Sewar v Gagliardi Bros. Serv., 51 NY2d 752; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Naeris v New York Tel. Co., 6 AD2d 196; Restatement, Torts 2d, § 446.) Concur — Sandler, Asch and Alexander, JJ.