Montgomery L. Effinger ()
Even the safest drivers cannot eliminate the dangers that may be posed by other vehicle operators and pedestrians encountered on the road. Although the law sets forth a duty to avoid and respond to dangerous acts and omissions by other drivers and pedestrians that are outside of an operator’s control, various legal theories have been employed to limit the innocent driver’s responsibility. Perhaps most critically, even without taking judicial notice of driver reaction time, the courts of New York have restricted the duty owed by drivers who are faced with sudden dangers. Vehicle operators whose time to respond to unpredictable behaviors of other drivers or pedestrians is mere seconds or less may obtain summary judgment prior to trial under the common law “emergency doctrine.” The body of law that has developed around this doctrine is instructive to both defendants who seek relief from liability as a matter of law and to plaintiffs who wish to avoid the legal hazard of dismissal in automobile accident cases involving limited reaction time.
A Duty to Avoid and Respond
Pedestrians who unexpectedly dart out into traffic and fellow vehicle operators who fail to yield the right of way or fail to stay in their proper lane, or cross over into oncoming traffic, all pose challenges to a driver’s skills. Even where sudden behaviors give rise to a “qualifying emergency” for application of the emergency doctrine, drivers are still required to react and respond in a reasonable manner in order to reduce the risk of an accident. In other words, even though this doctrine may provide an opportunity for summary judgment where the conditions are sudden and unexpected, its application is limited to circumstances that are unforeseen and it only protects responses that are reasonable under circumstances that are not of the driver’s own making. Weston v. Castro, 138 A.D.3d 517, 518 (1st Dept. 2016), citing Caristo v. Sanzone, 96 N.Y.2d 172, 174 (2001).
Although an operator who is lawfully proceeding within the proper lane of traffic is entitled to assume that other drivers will obey traffic laws, the duty of vigilance does not stop there. Redd v. Juarbe, 124 A.D.3d 1274, 1275 (4th Dept. 2015). Thus, “the driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident.” Gobin v. Delgado, 142 A.D.3d 1134, 1136 (2d Dept. 2016). For example, in a situation where a vehicle traveling in the opposite direction unexpectedly crosses over into on-coming traffic, such an emergency circumstance will nevertheless require the responding driver to take reasonable and prudent action. Dawley v. McCumber, 48 A.D.3d 1270,1270-71 (4th Dept. 2008). Likewise, an unexpected turn across the lanes of traffic by a fellow driver still requires a responding motorist who confronts that danger
to keep a proper lookout and to see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles, and is negligent for [the] failure to do so. Calderon-Scotti v. Rosenstein, 119 A.D.3d 722, 723, 989 N.Y.S.2d 514, 515 (2d Dept. 2014).
Under this body of law, both the claimed existence of an emergency, and the reasonableness of the driver’s response generally present issues of fact for the jury. Green v. Metropolitan Transp. Auth. Bus Co., 26 N.Y.3d 1061 (2015) revg. 127 A.D.3d 421 (1st Dept. 2015). Therefore, drivers who assume that there will be an easy path to summary judgment based on their sudden encounter with the egregiously dangerous actions of a pedestrian or another driver may be disappointed. Even the presence of obvious misconduct that results when another vehicle operator fails to yield in violation of the Vehicle and Traffic law may not exonerate a driver since “there can be more than one proximate cause of an accident.” Padilla v. Biel, 143 A.D.3d 959, 959 (2d Dept. 2016). Thus, a defendant who seeks relief from liability will need to demonstrate that such violation was “the sole proximate cause of the accident” because “the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts.” Velez v. Mandato, 129 A.D.3d 945, 945-46 (2d Dept. 2015).
In the context of sudden accident cases, the road to summary judgment is far from certain since the question of “whether the emergency was dissipated by a lapse of time before injury was sustained may present factual issues.” PJI 2:14, December 2015, citing Mas v. Two Bridges Associates by Nat. Kinney, 75 N.Y.2d 680, 686 (1990). The analysis is further complicated because it remains unclear whether human reaction time to emergency situations is a subject of which a New York state court may take judicial notice. Brown v. Muniz, 61 A.D.3d 526, 528 (1st Dept. 2009), lv. den. 13 N.Y.3d 715 (2010). Despite these ambiguities, the courts of New York have recognized a flexible line beyond which all issues of fact give way to summary judgment relief for the faultless defendant.
The courts have resolved the issues of comparative negligence for failing to avoid a collision by granting summary judgment to drivers who establish that they had an “instant,” a “second,” or “only seconds” to react to the other drivers’ sudden and unforeseen dangerous actions. Noel v. Ambassador Foods, 83 A.D.3d 474, 474-75 (1st Dep’t 2011); Attl v. Spetler, 137 A.D.3d 1176, 1176 (2d Dept. 2016); Shetsky v. Corbett, 107 A.D.3d 1100, 1102 (3d Dept. 2013); Johnson v. Time Warner Entertainment, 115 A.D.3d 1295 (4th Dept. 2014). For example, relief from liability was granted to a driver who was faced with sudden misconduct by another driver “since he had no more than one second to react to the defendants’ vehicle.” Chen v. Heart Transit, 143 A.D.3d 945, 946 (2d Dept. 2016).
A time lapse of two or three seconds has been proposed as the line of demarcation below which a driver’s failure to take evasive action in response to an emergency situation “is generally insufficient to raise a question of fact requiring a trial.” Le Claire v. Pratt, 270 A.D.2d 612, 613 (3d Dept. 2000). Yet, summary judgment has sometimes been granted where even longer response times are evident, and factual scenarios involving lapses of up to five seconds of reaction time may still provide support for summary judgment. Yelder v. Walters, 64 A.D.3d 762, 763 (2d Dept. 2009). The logical theme underlying these decisions is that more time to react will weigh more heavily against summary judgment relief. Thus, lapses of 10 seconds (Liu v. Cheng, 82 A.D.3d 405, 405-06 (1st Dept. 2011)) and 20 seconds (Gaeta v. Morgan, 178 A.D.2d 732, 734 (3d Dept. 1991)) before a collision have been held sufficient to create issues of fact for a jury.
Interrelationship of Factors
Even when a time lapse of one to two seconds establishes that the driver played no role in creation of the underlying accident, other factors may be found to raise a question of fact as to the reasonableness of the driver’s response, thereby resulting in denial of summary judgment. Collins v. Suraci, 110 A.D.3d 1214, 1216 (3d Dept. 2013). Under circumstances where a relatively short five second response time is alleged, summary judgment may still be denied based on the totality of facts that reflect on whether the driver prudently responded to the emergency. Lopez-Viola v. Duell, 100 A.D.3d 1239, 1241 (3d Dept. 2012).
Indeed, courts also examine factors such as vehicle speed and distance traveled while deciding whether to grant summary judgment. Cahoon v. Frechette, 86 A.D.3d 774, 776-77 (3d Dept. 2011). Ultimately, whether a driver will be permitted to rely on the existence of an emergency as a defense will broadly depend on consideration of whether that person’s “actions or inactions were reasonable under the circumstances.” Wooley v. Coppola, 179 A.D.2d 991 (3d Dept. 1992). For example, in pedestrian “darting out” cases, it has been suggested that speeds between five and 20 miles per hour are sufficient to demonstrate that the defendant driver exercised due care. Ramirez v. Rosario, 44 Misc.3d 1204(A) (Bronx Co. Sup. Ct. 2014), citing, inter alia, DeJesus v. Alba, 63 A.D.3d 460 (1st Dept.2009), affd. 14 N.Y.3d 860 (2010). Obviously, the factors of time lapse and vehicle speed are inextricably interrelated. Thus, dismissal was granted in a darting out case where the vehicle was traveling about 20 to 25 miles per hour and the driver did not see the pedestrian until one or two seconds before the car struck him. Miller v. Sisters of Order of St. Dominic, 262 A.D.2d 373, 374 (2d Dept. 1999), lv. den. 94 N.Y.2d 763 (2000).
The broad spectrum of factors considered by courts while deciding whether to grant summary judgment in short reaction time scenarios is amply demonstrated in a case in which a deer charged into the roadway, thereby causing an accident between two vehicles. Hill v. Cash, 117 A.D.3d 1423, 1426-28 (4th Dept. 2014). Defendant’s attempt to obtain summary judgment relief based on the sudden occurrence was rejected by the court, which referred to various conventional factors such as distance and speed. The court’s application of a wide perspective that encompasses diverse factual elements is further illustrated by its consideration of the size of the deer, the height of the grass, the view of the field, and even whether it was a doe or a buck. The courts of this state thus reveal an inclination to embrace a “big picture” perspective of the facts when faced with such a motion for summary judgment relief.
Drivers in New York are required to avoid hazards that result from conduct that they did not control, and negotiate unanticipated risks they did not create. Courts have sought to temper this duty of extreme vigilance by granting summary judgment where there is very little time or distance for reaction to the sudden dangerous conduct of another driver or pedestrian. To accomplish this, they have employed the interval of a second or mere seconds as the summary judgment threshold while declining to take judicial notice of an empirical scientific driver reaction time. Without the certainty of a bright line time frame for guidance, plaintiffs and defendants alike must diligently pursue all forms of evidentiary, testimonial and expert proof to support or oppose the motion that will likely be made in automobile cases where the moving party had a very short time to respond to unforeseen dangerous circumstances. A defendant who fails to address the wide array of factual elements that surround the occurrence of a sudden accident may forfeit an opportunity for relief from liability. Likewise, plaintiffs who disregard the need to submit facts contradicting the defense that there was insufficient time to respond may also suffer serious consequences, including the dismissal of their case.