SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT

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FELIPE GONZALEZ and JOYCE GONZALEZ, as
Co-administrators of the Goods and Chattels and Credits
of JOSEPH GONZALEZ, deceased,
Plaintiffs-Respondents,
-against-
STEFANO LIOTTA,
Defendant-Appellant,

- and -

THE COUNTY OF SUFOLK, ALEJANDRO RODRIGUEZ, and RAMONA RODRIGUEZ,
Defendants-Respondents.

AD # 00-02871 Supreme Court Suffolk County Index # 94-28892
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RESPONDENT'S BRIEF

Counter Statement of the Preliminary Statement

In a wrongful death and survival action, defendant Stefano Liotta appeals from an Order of the Supreme Court, Suffolk County (Doyle J) dated February 2, 2000 denying his motion for summary judgement.

Counter Statement of Facts

The Nature of the Action

This is an action brought to recover damages for the wrongful death of Joseph Gonzalez, age nine.

Facts

Placed in foster care at the Rodriguez home in Bay Shore, New York, Joseph Gonzalez age nine, proved to be "a loveable boy" (R138, 148), until his brother joined him in the Rodriguez household. (R140). Fighting broke out among the boys. (R148). In school Joey's performance plummeted. (R163). Joey mentioned to the teacher that he was going to run. (R164). Suspended from school on December 9, 1993 (R163), Joey spent the afternoon with his foster mother's adult son. (R168-170). At 3:00 p.m., when his foster mother returned, Joey changed his clothes and went outside. Joey was last seen sitting on the neighbor's porch. (R170, 171). When the foster mother called Joey to supper at 5:00 p.m. he was no where to be found. (R171). The foster mother did not recall exactly what Joey was wearing that day, but did recall that the newspaper had rendered an accurate report. (R186). The Newsday article referred to by the foster mother, reported Joey to have been wearing green pants. (R382). Seventy year-old Mr. Stefano Liotta was travelling eastbound in the center lane on Sunrise Highway at 5:00 p.m. (R52). There is a viaduct at Udall Road. (R300). His wife and her friend were chatting in the car when he felt a blow to the front. Mr. Liotta turned off on the left shoulder. (R57). Behind the car near the sidewalk on the right was what appeared to be a bag of clothes. (R63-64). Blood was splattered on the front of the car. (R67). Action was commenced against the foster parents and the County of Suffolk on a theory of negligent supervision and against Mr. Liotta the driver of the deadly vehicle. (R18).

Motion for Summary Judgment

Defendant Liotta, moved for summary judgment on the affirmation of counsel claiming the accident was regrettable but not the fault of the driver of the death causing instrumentality. (R11-12). In opposition, plaintiff offered several theories of liability:

h. That [defendant Liotta] never saw the plaintiff's decedent prior to the impact; However when subsequently asked if he'd testified that he never saw the child prior to the impact he answered "No." (See Exhibit "F" at p. 14, 1.24 to p 15, 1.5 and p 30, 1.9-11).

* * * * * * *

10. Generally the operator of a motor vehicle has a duty to keep a proper lookout and to keep his vehicle under proper control. Premo, et. al. v. Lam, et. al., 222 A.D.2d 872, 635 N.Y.S.2d 319 (3rd Dept. 1995); Pedersen, et. al. v. Balzan, et. al., 117 A.D.2d 933, 499 N.Y.S.2d 239 (3rd Dept. 1986). In addition, a driver has a duty to observe and see that which by the proper use of his or her senses might have been seen. Anderson v. Kraus, et. al., 204 A.D.2d 1074, 612 N.Y.S.2d 521 (4th Dept. 1994). See also Conradi v. New York City Transit Authority, et. al., 249 A.D.2d 436, 671 N.Y.S.2d 506.

11. In the Anderson case the defendant driver, the sole witness to the accident, testified that he was driving at about 20 miles per hour on a rainy, foggy night when visibility was poor and heard "something" strike his vehicle. The defendant stopped his car and observed the plaintiff's decedent lying in the street. [I]mproperly deni[al] [of] the request[ed] instruction that the driver had a duty to look and that failure to see what was there constituted negligence [mandated] revers[al][of] the jury verdict for defendant.

12. In the Pedersen case the Appellate Court reversed a jury verdict for the defendant [who] struck the plaintiff riding a bike across a highway The Appellate Court held that the trial court erroneously refused to give a "proper lookout" charge.

13. The testimony of defendant, LIOTTA, is contradictory as to whether he saw plaintiff's decedent prior to the accident.

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15. the body of plaintiff's decedent was thrown over 400 feet upon impact raises an issue of whether defendant, LIOTTA, was operating his vehicle negligently, that is, speeding, at the time of the accident. It is respectfully submitted that defendant, LIOTTA, must have been traveling at more than 45 miles per hour to throw the body over 400 feet.

* * * * *

17. There is even an issue of whether defendant, LIOTTA, Could keep a proper lookout. There is no evidence Concerning whether he was required to or did wear Prescription glasses on the night of the accident. The Evidence does establish that [Mr. Liotta] couldn't even see that a pile of clothes behind his car was actually a body and had trouble describing traffic conditions directly in front of him. These facts raise an issue as to his ability to see clearly at night while driving.

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23. Further, where an infant plaintiff is involved, as in the instant case, whether said infant was [comparatively] negligent by virtue of his or her violation of VTL Section 1152(a) is a question of fact which must be determined by considering the minor's age, experience, intelligence and development "to understand the meaning of the statute and to comply therewith." Hicks v. Demascole, et. al., 25 A.D.2d 487, 266 N.Y.S.2d 959 (4th Dept. 1966). See also Velez v. Cullinan, et. al., 251 A.D.2d 496, 674 N.Y.S.2d 428 (2nd Dept. 1998) and Pedersen, supra, at 242.

24. In the instant case the evidence indicates plaintiff's decedent, JOSEPH GONZALEZ, was a troubled foster child whose age and emotional condition precluded him from fully understanding the meaning and purpose of VTL Section 1152(a). Thus the issue of whether [plaintiff's deceased] was negligent by violating that statute should be submitted to the jury and precludes granting defendant's instant motion.

25. Alternatively, even if it is found that plaintiff's decedent was negligent in his violation of VTL Section 1152(a), there is a question of whether his violation was the sole proximate cause of the within accident, especially in light of defendant LIOTTA's contradictory testimony as to whether he saw the minor decedent prior to impact notwithstanding that he had a clear view of the entire highway. See Pedersen, supra at 241.

The Court's Decision

The court denied the motion in memoranda opinion:

Liotta testified at his deposition that immediately prior to the accident he was driving eastbound on the Sunrise Highway in the middle lane at approximately forty to forty five miles per hour. It was dark and he had his headlights on. The weather was dry and the traffic flow was "normal" and not "stop and go". Prior to the accident he was looking straight ahead. He realized he had been in an accident after he felt a "blow" to the front of the car. He did not see Gonzalez prior to his contact with the car. After Liotta felt this contact he pulled his vehicle over to the left hand side of the eastbound lanes and stopped at a point fifty to one hundred feet past the point of contact. He did not know if at the time of impact there were any vehicles to his right, but stated that there were no vehicles to the left and that the vehicles in the front were five to six car lengths ahead. After Liotta pulled over, he exited his vehicle and looked to the rear where he saw "something that looked like a piece of cloth". Liotta realized, after the police arrived at the scene, that the pile of cloth was a person.

Ramona testified at her deposition that she and her husband, Alejandro, were Gonzalez's foster parents. On the day of the accident she had seen him come into their house from the front yard at approximately 4:00 to 4:30 PM. Ramona's granddaughter told her that Gonzalez had gone upstairs to change his clothes and then went out again. Ramona did not see Gonzalez leave the house and at approximately 4:45 to 5:00 PM she realized that he was not around the house. She then called the police but was not able to give a description of what clothes Gonzalez was wearing when he left the house nor did she identify his clothes for the police after the accident. On the first day Gonzalez came to Ramona's house he was wearing a black shirt and pants. Upon being asked if she learned that the clothes Gonzalez changed into on the day of the accident were the same clothes he was wearing on the first day he came to Ramona's house, she responded "You ask me, I remember the newspaper said".

It is the duty of operators of automobiles to maintain a reasonably safe rate of speed, to keep their automobiles under reasonable control, to keep a proper lookout under the circumstances then existing to see and be aware of what was in their view and to use reasonable care to avoid an accident (1A New York Pattern Jury Instructions, Third Edition, Sec. 2:77, p369). Drivers are also charged with the duty to see that which under the facts and circumstances they should have seen by the proper use of their senses (Conradi v New York City Transit Authority 246 AD2d 436, 671 NYS2d 506 [1998]; 1A New York pattern Jury Instructions, Third Edition, Sec. 277.1, p371).

Under these circumstances, Liotta has failed to demonstrate, prima facie, his entitlement to judgment. The testimony of Liotta raises triable issues of fact as to whether he had sufficient time to observe Gonzalez and avoid the accident. His testimony was that although it was dark the road was dry, that he was in the middle lane of the three lanes of eastbound traffic, that there was no traffic to his left or in front and did not know if there was traffic to his right, that he had his headlights on, that he was looking straight ahead and that he was traveling at a speed of only forth to forty-five miles per hour (See Conradi v. New York City Transit Authority supra; Andersen v. Krauss 204 Ad2d 1074, 612 NYS2d 521 [1994]; Ryczko v. Klenotich 204 AD 693, 198 NYS2d 473 [1923]. Liotta's testimony also raises triable issues of fact as to whether he did see Gonzalez prior to impact (Fury v De Robertis 40NYS2d 197 [1943]) and whether the infant decedent's conduct constituted negligence (Pedersen v Balzan 117 AD2d 933, 499 NYS2d 239 [1986]; Shulman v Roseth Corporation 227 AD 577, 238 NYS 575 [1930]). Ramona's deposition testimony does not establish as a matter of fact that Gonzalez was wearing black clothes at the time of the accident. She testified that she did not see Gonzalez leave the house and any knowledge of what Gonzalez might have been wearing appears to be based on Ramona's recollection of a newspaper account of the accident. The hospital report offered by plaintiff's in opposition to the motion also raises triable issues of fact as to the speed of Liotta's automobile at the time of the accident. Accordingly, defendant Liotta's motion for summary judgment dismissing the complaint is denied.

(R5-6)

The Appeal

In taking this appeal, Appellant has not designated defendants County of Suffolk, Alejando Rodriguez and Ramona Rodriguez as respondents even though their right to contribution (CPLR 1401) is affected by the disposition of the appeal. CPLR 5511. In the court below, those municipal and individual defendants opposed the motorist's motion for summary judgment. (R325-328). They are thus indispensable parties to this appeal. cf CPLR 1001.

Question Presented

Does the defendant driver who equivocates on the most critical issue of whether he saw the boy before the accident show exemplary prudence in all circumstances?

POINT: SUMMARY JUDGMENT WAS PROPERLY DENIED. ISSUES OF FACT REQUIRE JURY TRIAL

Summary judgment is a process of "issue finding rather than issue determination." Francis v. Basic Metal, 144 AD2d 634, 544 NYS2d 697, 698. The Court's function on a motion for summary judgment is to determine whether issues of fact warrant trial. Vasilatos v. Chatterson, 135 AD2d 1073, 523 NYS2d 211, 212; Hourigan v. McGarry, 106 AD2d 845, 484 NYS2d 243. Since "resolution of justiciable issues by trial is preferred over summary disposition." (Hall v. I.G. Miller & Assoc, 167 AD2d 688, 563 NYS2d 270, 271), movant bears the initial burden of demonstrating lack of triable issue. Torraco v. All State Vehicles, 181 AD2d 882, 581 NYS2d 1012; Rodriguez v. Goldstein, 182 AD2d 396, 582 NYS2d 395. "Any reasonable doubt as to the existence of a triable issue" is decided against the movant. Hourigan v. McGarry, 484 NYS2d supra at 244; Jordan v. Goldstein, 129 AD2d 616, 514 NYS2d 252; Fields v. Green Bus, 124 AD2d 640, 514 AD2d 31, 32. Underlying the entire concept of justice is the preference of a determination in open court after full exposition of the case. Summary judgment, the exception, is approached with caution and imposed with reluctance in the clearest of cases when the lack of triable issue of fact is transparent. Andre v. Pomeroy, 35 NY2d 361, 262 NYS2d 131. The burden falls initially upon the moving party to demonstrate "evidentiary facts warran[ting] judgment as a matter of law." Lamberta v. LIRR, 51 AD2d 730, 379 NYS2d 139, 140. Negligence lacks that definitiveness that would easily make it subject to a few simple algorithms. KASSAL J dissenting in Meyers v. Fir Cab, 100 AD2d 29, 473 NYS2d 413, 417 Revd on Dissent 64 NY2d 806, 486 NYS2d 922. Its existence depends upon conclusions drawn from inferences based on facts and circumstances presented to human actors in less clinical situations. Ugarriza v. Schmeider, 46 NY2d 471, 475, 414 NYS2d 304, 306. The varying inferences determinable from the evidence must be left to a jury for its determination. Kahn v. Gates, 103 AD2d 438, 480 NYS2d 351, 356. Ordinarily "the idiosyncratic nature of most tort cases [leave so much] room for difference[s] in view" that "the court must [defer] to the jury. Havas v. Victoria Paper, 49 NY2d 381, 386, 426 NYS2d 233, 236. Unless defendant shows non-involvement in the accident as a matter of law or "exemplary prudence in the circumstances," the question remains one of fact for the jury "whether the defendant acted prudently in the circumstances." Ugarriza v. Schmeider, 46 NY2d supra at 475, 476, 414 NYS2d at 306. On this appeal, the appealing defendant chides learned Justice Doyle for having consulted the hoary tomes (Shulman v. Roseth Corp., 227 App Div 557, 238 NY Supp 575 and Fury v. DeRobertis, _____ Misc2d _____, 40 NYS2d 197) to divine from them the proposition that there is a duty on the part of a motorist to avert an accident if such is possible. (App Br, p7). This reflects an almost sophomoric attitude that the wisdom of mankind floated in on a cloud recently or at least within the last year or so. Yet it has been long the law, even in the days when contributory neglect was a total bar on recovery, that a motorist might be found negligent if he inflicts injury which his actions "could have avoided." Dino v. Eastern Glass, 231 App Div 75, 246 NY Supp 306, 308. A defendant aware that a danger is presented must act prudently, even if the danger was originally created by the plaintiff. Kumkumian v. City of New York, 305 N.Y. 167, 174, 111 NE2d 865. In the exercise of reasonable care to avoid accidents, "defendant must not run on inert and callous and cause an accident which might have been avoided." Elliot v. NY Rapid Transit, 293 N.Y. 145, 151, 56 NE2d 86; Gray v. Weir, 113 App Div 479, 99 NY Supp 252. The question becomes: could any thing the driver have done averted this tragic loss? The boy is dead and his side of the story will remain unspoken. (See Noseworth v. City of New York, 298 N.Y. 76, 80, 80 NE2d 744). We must look to reconstruct the events from the testimony of others and known facts to determine if anything the driver might have done could have avoided injury. In exercising this task, we are guided by a "lesser degree of proof [granting] greater latitude in drawing an inference of negligence," indefference to the silenced voice. Pedersen v. Balzan, 117 AD2d 933, 499 NYS2d 239, 242 quoting Franco v. Zingarelli, 72 AD2d 211, 220, 424 NYS2d 185, 191.

The blow hurled the boy 400' and twisted the cervical spine to "an extreme rotation." (R384). The driver identified the struck child as a pile of rags. While the driver made a claim that he had seen nothing before the "bump," he equivocated on this point and later conceded having seen the boy prior to the accident.

Against this background, the appeal defendant relies upon DiCocco v. Center (264 AD2d 803, 695 NYS2d 612) and Brown v. City of New York (237 AD2d 398, 655 NYS2d 567) to make out the necessary showing of "exemplary prudence." Both the DiCocco and Brown courts would avoid weaving fanciful "speculative issues" to give the plaintiff an opportunity to reach the jury. Yet both turn on individualized facts presented. In DiCocco, the driver noticed the pedestrian and took evasive action. In Brown the driver had no indication that the pedestrian would appear suddenly from behind cars stopped in traffic. Here the appealing defendant's vision was not blocked by other vehicles. On the crucial issue defendant's testimony though originally firm muddied into equivocation. A jury might, thus, find defendant guilty of neglect. "One is bound to see what, by the proper use of his senses he might have seen." Crandall v. Lingener, 113 AD2d 529, 496 NYS2d 842, 844; Lee v. General Baking, 40 AD2d 687, 336 NYS2d 92, 94. If the defendant driver did see the boy before hand, the driver's failure to sound a horn, hit the breaks or utilize evasive maneuvers would be negligent. Kiernan v. Hendrick, 116 Ad2d 779, 497 NYS2d 171, 173. Whether that is a correct conclusion to be drawn from the evidence, "is inherently a questions for the fact-trier." Kiernan v. Henrick, 497 NYS2d supra at 173. Only a jury can determine if the accident was something that could have been avoided. Carter v. Smalls, 162 AD2d 431, 556 NYS2d 671, 672. The appealing defendant invokes VTL 1152(a) which requires pedestrians to yield to motorists at other than marked crosswalks. (App Br., p8). The rule of the road is not a bar on recovery in favor of an infant lacking the experience and capacity to comprehend the rationales and reason of the statute. Pedersen v. Balzan, 499 NYS2d supra at 242. Yet supposing that the statutory violation constituted contributory negligence per se, that is no defense to the defendant. Since contributory negligence has been abolished as a defense for over 25 years, a jury must assess "the culpable conduct attributed to the claimant." YESAWICH J, dissenting in Lenahan v. Goucher, 111 AD2d 546, 486 NYS2d 418, 419 Rev'd for reasons stated in dissent 65 NY2d 1034, 494 NYS2d 293; Promo v. Lam, 222 AD2d 872, 635 NYS2d 319; Crandall v. Lingener, 496 NYS2d supra at 844. The neglect of the plaintiff contributing to an injury is no longer a total bar on recovery. CPLR 1411; Ugarriza v. Schmeider, 46 NY2d supra 477 footnote, 414 NYS2d at 306; Dominguez v. MBSTOA, 46 NY2d 528, 533, 415 NYS2d 634, 636.

Conclusion

The order denying summary judgment should be affirmed.

Dated: July 20, 2000
Respectfully, JOHN F. CLENNAN, ESQ.
Appellate Counsel to Plaintiffs-Respondents
2206 Ocean Avenue
Ronkonkoma, New York 11779
(631) 588-6244

Appellate Counsel to: DONALD W. LEO, ESQ.
Attorney for Plaintiff-Respondent
625 Middle Country Rd.
Coram, New York 11727
(631) 698-2000


TO: Clerk of the Court Appellate Division: Second Department 45 Monroe Place Brooklyn, New York 11201 EPSTEIN, HILL, GRAMMATICO & GANN Attorneys for Defendant-Appellant Liotta 1393 Veterans Memorial Highway Suite 414 Hauppauge, New York 11788 (631) 265-9191 COUNTY ATTORNEY'S OFFICE Attorneys for Defendant-Respondent: County of Suffolk 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 CHESNEY & MURPHY Attorneys for Defendant-Respondent: County of Suffolk Department of Social Services s/h/a The County of Suffolk, Ramona Rodriguez & Alejandro Rodriguez 2305 Grand Avenue Baldwin, New York 11510 (516) 378-1700

Appellate Court's Decision