Pawlukiewicz v. Boisson

—In an action to recover damages for personal injuries, the defendant Kent S. Rydberg appeals from an order of the Supreme Court, Kings County (M. Garson, J.), dated June 9, 1999, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him. Ordered that the order is affirmed, with costs. The plaintiff was a passenger in a vehicle driven by the defendant Patrick Taylor which crossed over into the oncoming lane of traffic and collided head on with a vehicle being driven by the defendant Ingver A. Nelson. The plaintiff was ejected from Taylor’s vehicle. The defendant Kent S. Rydberg, who was driving behind Nelson, drove through a space that opened up between the Taylor and the Nelson vehicle, and his vehicle allegedly came into contact with the plaintiff who was then in his path of travel. After issue was joined and various disclosure completed, Rydberg moved for summary judgment dismissing the complaint insofar as asserted against him based on the emergency doctrine. Rydberg argued that the accident created an emergency situation, and that his actions were reasonable under the circumstances. We affirm the Supreme Court’s denial of summary judgment. The emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance not of his or her own making, which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may [447] not be held negligent if the actions taken are reasonable and prudent in the emergency context, even if it later appears that the actor made a wrong decision (see, Rivera v New York City Tr. Auth., 77 NY2d 322, 327; see also, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923). “This is not to say that an emergency automatically absolves one from liability for his conduct. The standard then still remains that of a reasonable man under the given circumstances, except that the circumstances have changed” (Ferrer v Harris, 55 NY2d 285, 293). Here, Rydberg, unlike Nelson, was not directly confronted by the Taylor vehicle as it crossed over into oncoming traffic, a situation that Nelson was not required to anticipate and which presented Nelson with an emergency situation (see, Greifer v Schneider, 215 AD2d 354; see also, Fermin v Graziosi, 240 AD2d 365; Glick v City of New York, 191 AD2d 677). Rather, whether Rydberg had little or no time for thought, deliberation, or consideration before coming upon the accident scene and allegedly striking the plaintiff, or was unable to weigh alternative courses of conduct before acting, requires consideration of, inter alia, the distance and speed at which Rydberg chose to follow the Nelson vehicle (see, Mead v Marino, 205 AD2d 669; Pincus v Cohen, 198 AD2d 405). By statute, Rydberg was obliged to maintain a reasonable and prudent distance from the Nelson vehicle, with due regard for traffic and weather conditions (see, Vehicle and Traffic Law § 1129 [a]). Further, he was obliged to see that which he should have seen with the proper use of his senses (see, Mohamed v Frische, 223 AD2d 628). Thus, a reasonable jury could conclude that the emergency doctrine is not applicable (see, Rivera v New York City Tr. Auth., 77 NY2d 322, supra; Herbert v Morgan Drive-A-Way, 84 NY2d 835). Further, assuming that the emergency doctrine is applicable, Rydberg’s motion was still properly denied. In various sworn statements, Rydberg asserted that at the time of the collision he was traveling in a four-wheel-drive vehicle at a speed of approximately 15 miles per hour and was two to three car lengths behind the Nelson vehicle. Assuming that these allegations are credited, it cannot be said, as matter of law, that a reasonable jury could not conclude that Rydberg’s failure or inability to stop or turn his vehicle before coming upon the accident scene and allegedly coming into contact with the plaintiff was unreasonable, even under emergency circumstances (cf., Danza v Longieliere, 256 AD2d 434; Mascitti v Greene, 250 AD2d 821; DiPaola v Scherpich, 239 AD2d 459). In sum, whether Rydberg was negligent and, if so, whether such negligence was a proximate cause of the injuries alleged, present issues of fact for the jury. Ritter, J. P., S. Miller and Goldstein, JJ., concur.