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Thomas C. Cascio v. Robert J. Ferguson

December 10, 2012

THOMAS C. CASCIO, PLAINTIFF,
v.
ROBERT J. FERGUSON, DEFENDANT AND CROSS-CLAIMANT,
v.
MAREVA NETTLES; INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF DAVID C. NETTLES; AND THE ESTATE OF DAVID C. NETTLES, CROSS-DEFENDANTS.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court, in this personal injury action filed by Thomas C. Cascio ("Plaintiff"), are the following two motions: (1) a motion for summary judgment filed by Robert J. Ferguson ("Ferguson") (Dkt. No. 54) against Plaintiff; and (2) a motion for summary judgment filed by Mareva Nettles and the Estate of David C. Nettles ("the Nettleses") against Ferguson with regard to his cross-claim against them (Dkt. No. 56). For the reasons set forth below, both motions are granted; the motions are denied as moot to the extent they request other relief, which has already been provided by the Court's Decision and Order of August 30, 2011;*fn1 and this action is dismissed in its entirety.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint Against Ferguson, and Ferguson's Cross-Claim Against the Nettleses

Generally, liberally construed, Plaintiff's Complaint alleges that, on October 10, 2006, at approximately 7:51 a.m. in the Town of Keene, New York, David C. Nettles and Robert J. Ferguson recklessly operated their motor vehicles, which resulted in a "violent collision" between Nettles' motor vehicle and the motor vehicle operated by Plaintiff, causing Plaintiff to sustain serious and permanent bodily injuries, as defined by N.Y. INS. LAW § 5102, as well as property damage to his vehicle. (Dkt. No. 1.) More specifically, Plaintiff's Complaint alleges that, as Plaintiff's vehicle was properly overtaking Ferguson's vehicle from the passing lane, Ferguson caused Plaintiff's vehicle to collide with Nettles' vehicle, by "fail[ing] to yield and give Plaintiff a last clear chance to move to the right in order [for Plaintiff] to move his auto from the passing lane at a time when . . . Nettles was approaching from the opposite direction in the . . . passing lane." (Id. at ¶ 15.) Based on these factual allegations, Plaintiff's Complaint asserts the following two claims against Ferguson: (1) a claim of negligence; and (2) a claim of property damage. (See generally id.) Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

Generally, in his Answer, Ferguson asserts a cross-claim of negligence against the Nettleses. (Dkt. No. 36, at ¶¶ 25-26; see also Dkt. No. 56, Attach. 4 [Ex. A3 to Cross-Defs.' Motion].)*fn2 As relief with regard to its cross-claim, Ferguson requests indemnification and/or contribution from the Nettleses, in the event that Ferguson is found liable in any degree to Plaintiff. (Id.)

B. Parties' Briefing on Current Motions

1. Fergsuon's Motion for Summary Judgment Against Plaintiff

Generally, in support of his motion for summary judgment, Ferguson argues that he is not liable to Plaintiff for negligence as a matter of law because, based on the current record, the following four material facts are undisputed: (1) on the day in question, there were, affixed to Ferguson's vehicle, large towing mirrors to aid Ferguson in observing rear traffic; (2) immediately before the accident in question, as he was passed by non-party Walter Jakubowski's vehicle, Ferguson maintained a constant rate of speed under the posted speed limit, moved his vehicle to the right edge of his lane, and continued to provide as much passing room as possible following Jakubowski's pass; (3) a moment later, when Plaintiff attempted to pass Ferguson's vehicle, Ferguson maintained a constant rate of speed under the posted speed limit, and kept his vehicle to the right; (4) even if a genuine dispute of material fact exists as to whether Ferguson's vehicle was positioned at the right edge of his lane during Plaintiff's attempted pass, the collision between Plaintiff and Nettles occurred behind Ferguson's vehicle, not as Plaintiff was passing Ferguson (rendering it impossible for any failure by Ferguson to move his vehicle to the right to have been a proximate cause of the collision). (See generally Dkt. No. 54, Attach. 23 [Def.'s Memo. of Law].)

Generally, in response to Ferguson's motion for summary judgment, Plaintiff argues that, based on the current record, a genuine dispute exists as to whether Ferguson was negligent, for the following four reasons: (1) the fact that Ferguson had large towing mirrors affixed to his vehicle is immaterial given that he admits that he never saw Plaintiff's vehicle until it pulled out from behind his vehicle and attempted to pass his vehicle; (2) the fact that Ferguson was traveling under the posted speed limit is immaterial given the evidence that Ferguson failed to apply his brakes in order to give both Jakubowski's vehicle and Plaintiff's vehicle needed time and space to pass and exit the passing lane; (3) even if it were true that Ferguson had positioned his vehicle at the right edge of his lane during Plaintiff's attempted pass, that fact would not absolve him of liability, given that the accident could have been avoided if Ferguson had (a) kept a better lookout for Plaintiff, (b) moved his vehicle even further to right, onto the shoulder of the road, (c) applied his brakes and/or (d) sounded his horn; and (4) contrary to Ferguson's assertion that the collision between Plaintiff and Nettles occurred "behind" Ferguson's vehicle, admissible record evidence (e.g., the NYSP Accident Reconstruction Report) exists that the accident occurred not in the lane in which Ferguson was traveling (i.e., the eastbound lane) but in the lane in which Nettles was traveling (i.e., the northernmost westbound lane), as Plaintiff was attempting to pass Ferguson. (See generally Dkt. No. 60, Attach. 1 [Plf.'s Opp'n Memo. of Law].)

Generally, in his reply, Ferguson asserts the following three arguments: (1) Plaintiff's argument that Ferguson did not apply his vehicle's brakes while going downhill is supported by mere speculation (specifically, Ferguson's deposition testimony stating that was uncertain as to whether or not be applied his vehicle's brakes while proceeding downhill) and, in any event, is immaterial given that it is undisputed that Ferguson was traveling under the posted speed limit (and thus had no duty to slow down); (2) Plaintiff's argument that Ferguson is liable due to his failure to pull even further to the right (onto the shoulder of the road) is unavailing, given the uncontroverted evidence that Ferguson had moved his vehicle as far to the right as the road would safely accommodate and, in any event, that the accident occurred behind Ferguson's vehicle; and (3) Plaintiff's reliance on the fact that the accident occurred in the northernmost westbound lane is also unavailing, given that Plaintiff fails to dispute the fact the front of Plaintiff's vehicle had not yet become parallel to the rear of Ferguson's vehicle at the time of the collision (leaving Plaintiff time to pull back into the eastbound lane, regardless of how far to the right Ferguson's vehicle had been positioned). (See generally Dkt. No. 66, Attach. 1 [Def.'s Reply Memo. of Law].)

2. The Nettleses' Motion for Summary Judgment Against Ferguson

Liberally construed, the Nettleses' motion for summary judgment argues that Ferguson's cross-claim against them for negligence must be dismissed because (1) that cross-claim "presupposes some liability on the part of Mr. Nettles" and (2) based on the current record, no evidence of any such liability exists. (See generally Dkt. No. 56, Attach. 14, at 15-16 [attaching pages "10" and "11" of Cross-Defs.' Memo. of Law].)

Ferguson filed no response to the Nettleses' motion for summary judgment against him. (See generally Docket Sheet.)

Generally, in their reply, the Nettleses argue as follows: (1) Ferguson has not opposed the Nettleses' motion for summary judgment against him; and (2) for the reasons stated in the Nettleses' memorandum of law in chief, Mr. Nettles did not proximately cause the accident in question and thus the Nettleses cannot be liable to Ferguson for contribution or indemnification. (See generally Dkt. No. 68, at 2-3 [attaching pages "1" and "2" of Cross-Defs.' Reply Memo. of Law].)

C. Undisputed Material Facts

Generally, the following material facts have been asserted and supported by movants in their Local Rule 7.1 Statement of Undisputed Material Facts, and either admitted or denied without a supporting record citation by non-movants in their Local Rule 7.1 Response.*fn3

On the morning of October 10, 2006, Plaintiff left Jay, New York (in the vicinity of Lake Placid), and proceeded home in an easterly direction on Route 73, driving a 2003 Chevrolet Cavalier. Ahead of Plaintiff, Robert Ferguson, with Malcolm Ferguson as a passenger, proceeded home in an easterly direction from Fish Creek (also in the Lake Placid area). Ferguson drove a 2002 Dodge Ram 1500 pickup truck and towed a thirty-five foot camping trailer, which was equipped with ...


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