Claimants' motion for summary judgment on the issues of negligence and serious injury as defined by Insurance Law 5102 (d) is granted. Claimants' motion to strike two affirmative defenses is granted as to the State's affirmative defense of culpable conduct and denied as to claimant's alleged failure to utilize a seatbelt. Vehicle driven by claimant was rear-ended at a high speed by a NYS Trooper, who later pled guilty to reckless driving in violation of Vehicle and Traffic Law 1212.
|Claimant(s):||In the Matter of the Claims of HARRY GIBBONS and JULIE GIBBONS|
|Claimant short name:||GIBBONS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The original claim lists State of New York, New York State Executive Department and New York State Police as defendants. The New York Executive Department and the New York State Police are departments or agencies of the State without the capacity to sue or be sued. The caption of the proposed claim has been amended sua sponte to reflect the only proper defendant.|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||CAMPBELL & ASSOCIATES
BY: R. Colin Campbell, Esq.
|Defendant's attorney:||HON LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 28, 2020|
|See also (multicaptioned case)|
Claimants Harry Gibbons and Julie Gibbons filed claim no. 133516 on August 20, 2019 alleging that on July 15, 2019 claimant Harry Gibbons (Claimant) was the driver of a 2019 Dodge Caravan who was seriously injured when a 2016 Dodge police cruiser operated by New York State Trooper Stephen C. Barker (Trooper Barker) collided with the rear of the vehicle in which Claimant was an occupant. The accident took place on the New York State Thruway (I-90) approximately five miles east of Exit 59. An answer was served by the State of New York denying the allegations in the claim on October 31, 2019. The claimants move for partial summary judgment on the issues of negligence, serious injury as defined by Insurance Law § 5102 (d), and to strike two of defendant's affirmative defenses alleging that Claimant engaged in culpable conduct and failed to utilize a seatbelt.FACTUAL BACKGROUND
On July 15, 2019 at approximately 1:08 p.m., a 2019 Dodge Caravan operated by Claimant was traveling westbound on the I-90 in the Town of Sheridan, New York. Claimant was employed by Enterprise Rent-A-Car and was traveling in the course of his employment to Jamestown, New York with four co-workers.
On May 15, 2020, Claimant testified at his deposition that he was the driver of the van and that the accident occurred near the Dunkirk exit of I-90. He testified that he was traveling in the left lane; that there was no traffic in the right lane as all traffic had merged left; and that there was stop and go traffic for about two to three miles prior to the Dunkirk exit which required him to often come to a complete stop. Claimant testified that immediately prior to the accident he had come to a complete stop and the next thing he remembered was a loud bang and that he was then rendered unconscious (Exhibit C).
On December 30, 2019, Trooper Barker was charged in the Sheridan Town Court with Reckless Endangerment in the Second Degree in violation of NYS Penal Law § 120.20 and Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212. On January 16, 2020, Trooper Barker pled guilty in the Town of Sheridan Court to Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212 (Exhibit D).DECISION AND LAW
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 ). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 ). It has been held that in a case involving a rear-end collision a prima facie case of negligence is established against the operator of the rear vehicle where the vehicle in front has stopped or is stopping (Baker v Savo, 142 AD3d 1368 [4th Dept 2016]; Barron v Northtown World Auto, 137 AD3d 1708 [4th Dept 2016]). In such instances, the operator of the rear vehicle has a duty to come forward with an adequate non-negligent explanation for the accident (Barron, Id. at 1709, citing to Borowski v Ptak, 107 AD3d 1498 [4th Dept 2013]).
The defendant does not contest that it would be liable for the acts or omissions of its employee, Trooper Barker, and has not come forward with any non-negligent explanation for his conduct. Trooper Barker pled guilty to a misdemeanor offense of reckless driving in violation of Vehicle and Traffic Law § 1212, which provides, in relevant part, that "[r]eckless driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." The guilty plea to reckless driving establishes the defendant's liability for negligence in causing the claimants' injuries (Bazazian v Logatto, 299 AD2d 433 [2d Dept 2002]; see Allstate Ins. Co. v Zuk, 78 NY2d 41). As such, the Court finds that claimants have met their burden of proof to establish that the defendant was negligent and that such negligence was the proximate cause of this accident. Accordingly, there is no question of fact to raise a triable issue and claimants' motion for partial summary judgment on the issue of negligence is granted.
The claimants also seek partial summary judgment on the issue of serious injury. In order for claimant to recover for non-economic loss resulting from the subject motor vehicle accident, Insurance Law § 5102 (d) requires that claimant first establish that he sustained a "serious injury". A serious injury is defined by Insurance Law § 5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The claimants contend that Claimant sustained a fracture and rely upon the certified records of UBMD Orthopaedics and specifically, the letter reports of Philip M. Stegemann, M.D., the Claimant's treating orthopedist. Claimants contend that these records establish that Claimant sustained a fractured right fibula as a result of the subject accident and that this fracture qualifies as a serious injury in accordance with Insurance Law § 5102(d). Dr. Stegemann first examined Claimant on July 26, 2019. He states in his report that Claimant went to Brooks Memorial Hospital (Brooks) with pain in both legs following the accident; that Claimant continued to experience discomfort and went to Urgent Care on July 24, 2019 where x-rays were taken of his tibia and fibula; and that repeat x-rays taken on July 25, 2019 disclosed a proximal third right fibula fracture minimally displaced. Dr. Stegemann reports that he reviewed the x-rays of Claimant's right tibia and found a minimally displaced proximal third fibular fracture and concluded that "[m]ost likely this was caused by a direct impact." Dr. Stegemann further states that the fracture will go on to heal uneventfully and he did not believe that his leg needed to be immobilized. Finally, Dr. Stegemann reported that Claimant was not working; could not perform his work activities without restriction; that in his opinion, the motor vehicle accident that Claimant described was the competent medical cause of his injuries; that Claimant's complaints were consistent with the history of his injury, the history of the injury was consistent with Dr. Stegemann's objective findings, and that Claimant had a 100% temporary impairment.
On September 9, 2019, Claimant returned to Dr. Stegemann, who reported that Claimant's physical condition had improved; that his fibular fracture was healing, as well as the contusions to both calves; and Claimant can now perform his own physical therapy. Dr. Stegemann stated that Claimant was still not working and would not be able to perform his work activities without restrictions and that in his opinion, the motor vehicle accident was the competent medical cause of his injuries. Claimant was next examined by Dr. Stegemann on November 4, 2019, who indicated that Claimant was still completely disabled and that he would follow-up in six weeks. The last report with Dr. Stegemann in Exhibit E was the letter report of December 16, 2019. Dr. Stegemann reported that x-rays indicated healing of his right proximal fibular shaft fracture. Dr. Stegemann did not, however, believe that he could return at that time to work as a professional driver and that he would follow-up with him in two months.
In opposition, the defendant attaches the certified records of Brooks and Western New York Immediate Care (Immediate Care). The Brooks records of July 15, 2019 (Exhibit A) state that upon arrival from the subject accident, Claimant's complaints consisted of an abrasion to his left forearm, pain behind both calves and left lower anterior rib pain. The Brooks records indicate that Claimant sustained two rib fractures that were confirmed by x-rays. The Brooks radiology report of that date concluded that Claimant had possible anterior seventh and tenth rib fractures. Claimant was discharged the same day and no x-rays were taken of his right fibula. The Immediate Care records dated July 17, 2019 (Exhibit B) state that Claimant complained of continuing left rib pain and bruising, that he had been experiencing calf pain since the accident, and was concerned that no x-rays of his legs had been taken when he was treated at Brooks. The x-rays taken of his legs by Immediate Care were evaluated by Dale Sponaugle, M.D., who concluded that there was no tibia or fibula fracture in either leg.
The Court has before it conflicting certified medical records which create an issue of fact as to whether a fracture existed in the right tibia that was proximately caused by the subject accident. However, the certified contemporaneous hospital records submitted by the defendant in opposition to this motion also disclose a finding that Claimant complained of left rib pain immediately upon presentation at Brooks and that x-rays taken the day of the accident confirm the existence of two fractured left ribs. The certified records of Immediate Care also indicate that Claimant complained of left rib pain. The Brooks records and x-ray reports confirm the existence of two left side rib fractures proximately caused by the subject motor vehicle accident. As a result, the Court agrees with claimant's counsel that I may consider the certified medical records offered by defendant in opposition to this motion that indicate the presence of multiple rib fractures. These records support a finding that Claimant sustained rib fractures as a result of the subject motor vehicle accident and these fractures do qualify as a serious injury (Kearse v New York City Tr. Auth., 16 AD3d 45 [2d Dept 2005]; Elias v Mahlah, 58 AD3d 434 [1st Dept 2009]). Accordingly, claimants have sustained their burden to establish the existence of a serious injury within the meaning of Insurance Law § 5102(d) and claimants' motion for partial summary judgment on the issue of serious injury is granted.
Claimants also seek to strike defendant's affirmative defenses that Claimant failed to utilize a seatbelt and engaged in culpable conduct. The defendant correctly argues that the issue of whether Claimant was wearing a seatbelt goes to the issue of damages and not to liability and may be pled and introduced into evidence at trial in mitigation of damages (Brabham v City of New York, 105 AD3d 881, 883 [2d Dept 2013]). Accordingly, claimant's motion to strike this affirmative defense is denied without prejudice. I find that claimants have met their burden to establish that Claimant was rear-ended by Trooper Barker, that Trooper Barker was negligent as defendant did not offer a non-negligent explanation for Trooper Barker's conduct. Accordingly, the Court finds that Claimant had no culpable conduct for the cause of this crash and I therefore grant claimants' motion to strike the defendant's affirmative defense (Herdendorf v Polino, 43 AD3d 1429 ( 4th Dept 2007]).
Based on the foregoing, claimant's motion no. M-95685 for summary judgment with respect to the issues of liability as they relate to negligence and serious injury are granted and the defendant's affirmative defense of culpable conduct is stricken.
August 28, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1) Notice of motion and affidavit of R. Colin Campbell, Esq., sworn to on July 9, 2020 with annexed Exhibits A-E;
2) Affirmation in opposition of Assistant Attorney General, Carlton K. Brownell, III, Esq., dated July 28, 2020 with annexed Exhibits A-B; and
3) Reply affidavit of R. Colin Campbell, Esq. sworn to on August 6, 2020.