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Franchino v. Hertz Vehicle

June 23, 2006


The opinion of the court was delivered by: Brieant, J.

Memorandum and Order

Before the Court in this diversity personal injury action is a motion for summary judgment (Doc. No. 10) filed on April 24, 2006, by defendant Hertz. Plaintiff is a New York resident who filed suit in the New York State Supreme Court, claiming that he sustained "serious injury" as defined in the Insurance Law. Defendant Hertz Corporation removed the case to District Court, based on diversity jurisdiction, as defendant Hertz is a Delaware corporation with its principal place of business in New Jersey. The individual Defendants are citizens of Pennsylvania. Defendant Daniel A. Mitchell rented the vehicle from Hertz and was a passenger in the vehicle during the incidents relevant to this case. Defendant Cheryl A.Wiley was driving the vehicle.

Unless otherwise noted, the following facts are undisputed or presumed true for purposes of this motion only. On April 3, 2004, plaintiff Robert Franchino was a police officer on duty for the Town of Clarkstown, in Rockland County, New York. At approximately 5:30 or 6:30 pm, Plaintiff was operating a Ford police cruiser and was assisting several other police officers who were investigating a report of ongoing criminal activity at the "BJ's Wholesale Club" store in the Palisades Mall. Plaintiff was waiting in his vehicle in the parking lot of the Mall, and received a call on the police radio that a Toyota Highlander with Pennsylvania plates DGK5494, was occupied by the suspects, and was attempting to leave the parking lot.

Plaintiff spotted the vehicle, and became positioned behind it on the ring road surrounding the Mall. Plaintiff avers that when he activated his siren and lights, the Toyota reduced its speed. Franchino pulled to the left of the Toyota, into the oncoming traffic lane and at that time, the driver of the Toyota, defendant Cheryl A.Wiley, swerved suddenly into that lane and collided with Franchino's vehicle, for the first time. Franchino avers that his "impression" was that Wiley swerved into his lane to avoid colliding with a third vehicle, a Plymouth, which had stopped in front of the Toyota. It was in this first collision that Plaintiff was injured.

After the first collision, the Toyota continued on in the parking lot and Plaintiff continued to pursue or follow it. Franchino contends that defendant Wiley was driving erratically, weaving into and out of lanes, and then suddenly attempted to go to her left around a concrete island in the parking lot. Plaintiff went to the right around the island, and contends that Wiley then abruptly changed direction, attempting to go right around the traffic island, and because it was directly in the path of Plaintiff's car, Plaintiff hit the Toyota, constituting a second collision between these two cars.

Defendant Wiley exited the vehicle, and appeared to be confused and disoriented.

Shortly before the accident, defendants Wiley and Mitchell had stolen property from BJ's Wholesale Club by using one or more forged credit cards. As noted below, criminal liability resulted from their actions.

Plaintiff sues Defendants for "serious injury" incurred during the incident, allegedly due to Wiley's negligence in operating the vehicle.

New York Vehicle and Traffic Law provides the following, in pertinent part. Negligence in use or operation of vehicle attributable to owner: [] Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.

NY CLS Veh & Tr § 388 (emphasis added).

Hertz argues that it cannot be held vicariously liable for what it claims were intentional acts of Wiley, because an owner of a vehicle in New York State is vicariously liable only for the negligence of a permitted operator of a vehicle, and not for intentional acts. Hertz contends that the actions of defendant Wiley were undeniably intentional and were conducted in her deliberate and admitted attempt to evade arrest. It contends that Wiley deliberately struck Plaintiff's police cruiser, in order to avoid apprehension.

Hertz relies heavily on the fact that Wiley and Mitchell were arrested, charged and indicted for multiple felonies, including assault in the second degree of plaintiff Sergeant Franchino, criminal mischief in the third degree, and reckless endangerment in the first degree.

In June 2004, defendant Daniel Mitchell pled guilty to crimes including forgery in the second degree and was sentenced to five years probation. In July 2004, defendant Wiley pled guilty to crimes charged including assault in the second degree and forgery in the second degree, and was sentenced to one to three years in jail. Wiley admitted during her plea allocution that she intended to prevent another officer, PO Nicholas Veltri from performing a lawful duty, and in so doing, caused him physical injury, and that she was trying to get away from the police and prevent them from arresting her. Hertz, Exh. H at p. 6, 8.

Plaintiff contends that his claim is not precluded by law, because issues of material fact exist as to whether Wiley acted negligently or intentionally when the ...

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