The opinion of the court was delivered by: Manzanet-Daniels, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 10, 2012
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Angela M. Mazzarelli, J.P. John W. Sweeny Leland G. DeGrasse Rosalyn H. Richter Sallie Manzanet-Daniels, JJ.
In this case we address the interplay between the Noseworthy doctrine and the familiar presumption that applies in cases of rear-end collision. We hold that where a plaintiff has established, through medical evidence, that he has no memory of an accident, plaintiff's burden is to submit prima facie evidence of defendant's negligence. To hold otherwise, in a case involving a rear-end collision, would be to effectively deprive a plaintiff of the benefit of the Noseworthy doctrine with respect to his claims against the driver and the owner of the other vehicle.
It is not contested, for purposes of these motions, that plaintiff's significant head injuries plunged him into a coma and resulted in post-traumatic amnesia that rendered him unable to recall or relate the circumstances of the accident. Plaintiff, having presented medical evidence establishing the loss of memory and its causal relationship to defendant's fault, is entitled to the lesser standard of proof applicable to a party unable to present his version of the facts (see Noseworthy v City of New York, 298 NY 76 ).
In order to avail himself of the Noseworthy doctrine, it was incumbent on plaintiff to present prima facie evidence of defendants' negligence. This he has amply done. Plaintiff submitted, inter alia, the affirmed reports of accident reconstruction experts who opined that the driver of the truck, defendant Christopher Benton, was negligent in driving in the left lane; in bringing his vehicle to a stop in the right lane in contravention of the Vehicle and Traffic Law when he had sufficient momentum to steer onto the right shoulder; in failing to move his vehicle off the roadway once he was in the right lane; and in failing to deploy the required warning devices, including the setting off of flares and the placement of three reflective triangles around the disabled vehicle, at distances of approximately 10 feet, 100 feet and 200 feet behind the subject vehicle and in the center of the incident lane. Had these devices been properly placed at the appropriate distances, plaintiff would have had over 200 feet to avoid the stalled truck and to be warned of its presence, significantly increasing his ability to react and maneuver his vehicle so as to avoid the truck. Plaintiff's experts noted that placement of reflective triangles was especially critical because the roadway was straight and level, making it more difficult to judge the separation distance between plaintiff and the stopped truck, leaving plaintiff with no perceptual cues but a change in the truck image size. Plaintiff's experts noted that trucks are not permitted in the left lane of the Bruckner Expressway in the area where the accident occurred, and opined that if the truck driver had been traveling in any other lane he would have been able to stop on the shoulder since he in fact managed to travel the distance from the left to the far right lane. Both plaintiff's experts and the trucking company's expert opined that the repeated breakdown of the truck was the result of negligent repair and faulty service rendered by third-party defendant Truck King, and was an essential factor in causing the subject accident.
The truck driver testified that the vehicle stalled while he was driving in the left lane of the expressway. The driver testified that he placed the truck in neutral, tried several times, unsuccessfully, to restart it, and ultimately steered the truck partially onto the shoulder, with a portion of the vehicle still in the right lane. *fn1 The driver instructed his helper to "put out the triangles," in the rear of the truck and proceeded to call his boss. He testified that his helper brought two triangles with him and placed at least one of the triangles at the rear of the truck prior to the accident. (It may be noted that applicable safety regulations require placement of three emergency reflective triangles in the case of a stopped emergency vehicle.) The record does not indicate whether this triangle was placed at the required distance from the rear of the truck so as to apprise approaching vehicles of the truck's presence in the roadway in sufficient time to allow approaching vehicles to stop or otherwise avoid the truck; moreover, the police officer who responded to the scene testified that he did not observe any reflective triangles, broken or otherwise, in the roadway. The record similarly is unclear as to whether the truck's flashers were on at the time of impact,[FN2] and whether, in the gloomy weather, any such flashers would have apprised an approaching vehicle of the presence of the truck in adequate time to stop.
The driver testified that the helper did not know how to deploy the flares, and that he did not deploy the flares himself, even though the flares were contained in the same box as the triangles and nearly three minutes elapsed before the truck was struck in the rear by the vehicle driven by plaintiff. During this time the driver was apparently on the radio with his boss.
The trucking company's accident reconstruction expert cited as three "critical factors" in the happening of the accident the improper servicing of the truck by defendant/third-party defendant Truck King, the characteristics of the stall, which prevented the driver from driving the truck off the roadway, and the presence of the truck in the travel portion of the roadway, a happenstance precipitated by the improper servicing.
The weather conditions at the time of the accident were described as "hazy, ""misty" and "gloomy," and the roadway described as "wet" ...