The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
Before the Court is the motion of Plaintiffs William and Elena
Speidel for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure in this action for negligence and loss
of consortium arising from an accident involving Plaintiff
William Speidel ("Speidel") and Defendant Joseph Akoto
("Akoto").*fn1 Plaintiffs seek judgment on the issue of
liability. Plaintiff was struck by an automobile owned by
Defendant Herminio Sierra ("Sierra") and driven by Defendant
Akoto ("Akoto"), an employee of Defendant Marriott Hotels
International ("Marriott"), outside a Marriott hotel in
The Court has jurisdiction of Plaintiffs' claims based on
complete diversity of citizenship of each party in accordance
with 28 U.S.C. § 1332. The matter was removed from the Supreme
Court of the State of New York, County of New York in accordance
with the removal provisions of 28 U.S.C. § 1441.
The Court has considered thoroughly all of the parties'
submissions and arguments relating to the motion. For the
following reasons, Plaintiffs' motion for summary judgment is
The following material facts are undisputed unless here
characterized as allegations or assertions. On January 19, 2003,
Plaintiff William Speidel was struck by a 1996 Lincoln motor
vehicle driven by Defendant Joseph Akoto, an employee of Marriott
Hotels International, Inc. Akoto was operating the automobile in
the course of his Marriott employment. (Joint Preliminary
Pre-Trial Statement ("JPPTS") ¶¶ 1-7.) Defendant Sierra, the
owner of the automobile, had given his daughter, Ariseli Aguilar
("Aguilar"), permission to drive it; Aguilar had, in turn, given
Marriott employees permission to operate the car for parking
purposes. (Id. ¶¶ 8-9.)
The accident occurred as Speidel stood behind his car loading
his luggage. The bumper of the 1996 Lincoln struck Speidel just
below the knees and pinned him between the Lincoln and his own
car. (Id. ¶¶ 2-3.) Following the accident, Speidel was
diagnosed with a comminuted fracture of the left tibia and
fibula. (Id. ¶ 11.)
Akoto testified in his deposition that he was moving the
Lincoln to make room for other vehicles. (Akoto Dep. at 16.)
Akoto asserts that he saw Speidel when Akoto was approximately
four feet away from Speidel's car. (Id. at 57.) Akoto alleges
that, at that point, he put his foot on the brake "hard" to stop
the car. (Id. at 58.) According to his deposition testimony,
the brakes did not function and the car did not stop. (Id.)
Akoto also alleges that, after Speidel was pinned between the two
cars, the brakes did not function when he backed the car away
from Speidel. (Id. at 71). Akoto stated that he "used the
gears" to stop the car. (Id.) Akoto further alleges that he
spoke briefly with Aguilar following the accident, and that
Aguilar said that there was something wrong with the brakes.
(Id. at 17-18, 59.) Sierra asserts that he did not have trouble with the brakes and that, following the
accident, he had the brakes inspected and that no problems were
discovered. (Sierra Dep. at 17.)
In addition to their claims against Akoto, Plaintiffs bring
claims against Defendants Sodexho, Inc. ("Sodexho") and Marriott
Hotels International, Inc. ("Marriott") on a theory of
respondeat superior, as well as claims against Herminio Sierra
("Sierra") on a theory of vicarious liability pursuant to New
York Vehicle and Traffic Law § 388 ("negligence in use or
operation of vehicle attributable to owner").
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). The Court's role is not to "weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). "A factual issue is genuine if it can
reasonably be resolved in favor of either party," and "[a] fact
is material if it can affect the outcome of the action based on
the governing law." David v. N.Y.P.D. 42nd Precinct Warrant
Squad, No. 02 Civ. 2581, 2004 WL 1878777, at *3 (S.D.N.Y. Aug.
23, 2004) (citing Anderson, 477 U.S. at 248, 250). Initially,
the burden is on the moving party to "demonstrate the absence of
any genuine issues of material fact." Harrison v. Potter,
323 F. Supp. 2d 593, 599 (S.D.N.Y. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the moving party
satisfies its burden, the burden then "shifts to the nonmoving
party to offer specific evidence showing that a genuine issue for trial exists." Am. Home
Assurance v. Zim Jamaica, 296 F. Supp. 2d 494, 498-99 (S.D.N.Y.
2003). In resolving a motion for summary judgment, "the Court
must view the evidence in a light that is favorable to the
non-moving party and draw all reasonable inferences in favor of
that party." Harrison, 323 F. Supp. 2d at 599 (citing Williams
v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
To establish that a defendant is liable for negligence, a
plaintiff must prove the existence of a duty flowing from the
defendant to the plaintiff, a breach of that duty, a reasonably
close causal connection between the breach and the resulting
injury, and actual loss, harm or damage. Febesh v. Elcejay Inn
Corp. 157 A.D.2d 102, 555 N.Y.S.2d 46 N.Y.A.D. (1st Dept. 1990).
In the case of a rear-end collision, the Appellate Division of
the New York Supreme Court, Second Department, has ruled that
"[a] rear-end collision with a stopped automobile creates a
prima facie case of negligence with respect to the operator of
the moving vehicle and imposes a duty on that operator to provide
a non-negligent explanation as to how the accident occurred."
Davis v. Quinones, 295 A.D.2d 394 (2d Dep't 2002). Failure to
provide a "non-negligent explanation, in evidentiary form,"
entitles the injured party to summary judgment. Johnson v.
Phillip, 261 A.D.2d 269, 271 (1st Dep't 1999).
In Kienzle v. McLoughlin, 202 A.D.2d 299 (1st Dept. 1994),
the First Department held that an emergency situation confronting
the driver of a vehicle which rear-ends another vehicle would
suffice as a non-negligent explanation that would rebut the
prima facie case established by the fact of the rear-end
collision. The Third Department has also ruled on emergency
driving situations, holding that, if a driver, "confronted with
an emergency not of his or her own making, reacts as a reasonable
person when faced with similar circumstances, no negligence will be found." Pettica v. Williams, 223 A.D.2d 987
(3d Dep't 1996); cf. Johnson, 261 A.D.2d 269 ("the emergency
doctrine typically is inapplicable to routine rear-end traffic
accidents"). Other non-negligent explanations for a rear-end
collision include such circumstances as "mechanical failure or
the sudden and abrupt stop of the vehicle ahead."
Rodriguez-Johnson v. Hunt, 279 A.D.2d 781 (3d Dep't 2001).
The duty of explanation is imposed upon the operator of the
moving vehicle "because he or she is in the best position to
explain whether the collision was due to a mechanical failure, a
sudden stop of the vehicle ahead, an unavoidable skidding on a
wet pavement, or some other reasonable cause." Stern v. Chang,
No. 03 Civ. 8147, 2005 WL 1223428 (S.D.N.Y. May 24, 2005) citing
Leal v. Wolff, 224 A.D.2d 392, 393 (2d Dep't 1996). Testimony
from the defendant in a rear-end collision can provide a
non-negligent explanation and thus rebut the prima facie case.
Kienzle, 202 A.D.2d 299 (defendant prevailed at trial based on
his testimony of how the accident occurred), See also, Morton
v. McCasland, 16 A.D.2d 781 (1st Dep't. 1962).
In the instant case, it is undisputed that the vehicle driven
by Defendant Joseph Akoto struck Speidel from behind. (JPPTS ¶
4.) Thus, Plaintiff Speidel has established a prima facie case
of negligence against Defendants. Davis, 295 A.D.2d at 394. The
burden of proving that a genuine material fact is in dispute
therefore shifts to Defendants. To defeat Plaintiffs' motion for
summary judgment, ...