LAURA D. STIGGINS, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF JOSHUA S. STIGGINS, DECEASED, PLAINTIFF-APPELLANT,
TOWN OF NORTH DANSVILLE, DEFENDANT-RESPONDENT. (APPEAL NO. 1.)
ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
& IACOVANGELO, LLP, ROCHESTER (JOSEPH B. RIZZO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND
from an order of the Supreme Court, Livingston County (Dennis
S. Cohen, A.J.), entered April 14, 2016. The order, inter
alia, granted the motion of defendant for summary judgment
dismissing the complaint.
hereby ORDERED that the order so appealed from is modified on
the law by denying defendant's motion seeking summary
judgment dismissing the complaint and reinstating the
complaint, and as modified the order is affirmed without
costs and the matter is remitted to Supreme Court, Livingston
County, for further proceedings in accordance with the
following memorandum: These consolidated appeals arise from
an accident in which nonparty Clayton Benedict lost control
of his vehicle while driving with four passengers on a road
maintained by defendant. The vehicle ultimately struck a tree
and flipped over, resulting in the death of Joshua S.
Stiggins, the plaintiff's decedent in appeal No. 1
(decedent), and injury to Jesse T. Galton, the plaintiff in
appeal No. 2. The road ended in a parking lot that was part
of a public park, and Benedict lost control of the vehicle at
a curve just past the park gate, which was open. Based on a
police diagram of the accident scene, it appears that the
gate was roughly 300 feet from the parking lot. A sign near
the gate stated that the park was open from dawn until dusk,
and the accident occurred at about 2:00 a.m. Benedict had
been drinking on the night of the accident, and he eventually
pleaded guilty to aggravated vehicular homicide, vehicular
assault, and driving while intoxicated. In separate
complaints, plaintiff Laura D. Stiggins, individually and as
administratrix of the estate of Joshua S. Stiggins, and
Galton (collectively, plaintiffs) alleged that defendant was
negligent in, inter alia, failing to close the park gate,
failing to provide adequate lighting for the road, and
failing to provide a speed limit sign or a sign warning of
the curve. Supreme Court, inter alia, granted defendant's
motions seeking summary judgment dismissing the complaints.
In view of its determinations, the court did not address the
alternative relief sought by defendant in its motions.
initial matter in both appeals, we note that plaintiffs do
not contend in their joint brief that the court erred in
denying their motions for summary judgment, and we therefore
deem any such contention abandoned (see Clark v
Perry, 21 A.D.3d 1378, 1379 [4th Dept 2005]).
agree with plaintiffs in both appeals, however, that the
court erred in granting defendant's motions seeking
summary judgment dismissing their complaints on the ground
that the road was reasonably safe as a matter of law. A
municipality has a duty to maintain its roads in a reasonably
safe condition "in order to guard against contemplated
and foreseeable risks to motorists, " including risks
related to a driver's negligence or misconduct
(Pinter v Town of Java, 134 A.D.3d 1446, 1447 [4th
Dept 2015]; see Turturro v City of New York, 28
N.Y.3d 469, 482 ; Stiuso v City of New York,
87 N.Y.2d 889, 890-891 ). In other words, a
municipality is not relieved of liability for failure to keep
its roadways in a reasonably safe condition "whenever
[an accident] involves driver error" (Turturro,
28 N.Y.3d at 482; see Dodge v County of Erie, 140
A.D.3d 1678, 1679 [4th Dept 2016]; cf. Tomassi v Town of
Union, 46 N.Y.2d 91, 97 ). Defendant's duty to
maintain the road was therefore not negated by Benedict's
intoxication or the fact that the park was closed when the
accident occurred (see Sirface v County of Erie, 55
A.D.3d 1401, 1401-1402 [4th Dept 2008], lv dismissed
12 N.Y.3d 797');">12 N.Y.3d 797 ; Cappadona v State of New York,
154 A.D.2d 498, 499-500 [2d Dept 1989]), and we conclude that
defendant did not establish as a matter of law that
Benedict's presence under those circumstances was
unforeseeable (see Turturro, 28 N.Y.3d at 483-484;
Sirface, 55 A.D.3d at 1402; cf. Palloni v Town
of Attica, 278 A.D.2d 788, 788 [4th Dept 2000], lv
denied 96 N.Y.2d 709');">96 N.Y.2d 709');">96 N.Y.2d 709');">96 N.Y.2d 709 ). Inasmuch as defendant
presented no evidence that the road was reasonably safe at
night in the absence of the safety measures proposed by
plaintiffs, we conclude that defendant failed to establish as
a matter of law that it was not negligent (see Purves v
County of Erie, 12 A.D.3d 1112, 1112 [4th Dept 2004];
cf. Pinter, 134 A.D.3d at 1447).
further agree with plaintiffs that the court erred in
determining as a matter of law that Benedict's actions
were the sole proximate cause of the accident. Although
defendant presented evidence that Benedict was intoxicated
and driving "at high speed, " we conclude that its
submissions did not establish as a matter of law that
Benedict's manner of driving "would have been the
same" if the safety measures proposed by plaintiffs had
been in place (Trent v Town of Riverhead, 262 A.D.2d
260, 261 [2d Dept 1999]; see Humphrey v State of New
York, 60 N.Y.2d 742, 744 ; Land v County of
Erie, 138 A.D.3d 1462, 1463 [4th Dept 2016]; Torelli
v City of New York, 176 A.D.2d 119, 122-123 [1st Dept
1991], lv denied 79 N.Y.2d 754');">79 N.Y.2d 754 ), particularly
in view of defendant's submission of evidence that
Benedict had never been on the subject road before the
accident (cf. Atkinson v County of Oneida, 59 N.Y.2d
840, 842 , rearg denied 60 N.Y.2d 587');">60 N.Y.2d 587 ).
Furthermore, even assuming, arguendo, that defendant met its
initial burden with respect to causation, we conclude that
plaintiffs raised triable issues of fact by submitting
conflicting evidence with respect to the speed of the vehicle
and whether Benedict would have heeded visible traffic
signals (see O'Buckley v County of Chemung, 88
A.D.3d 1140, 1141 [3d Dept 2011]; see generally Race v
Town of Orwell, 28 A.D.3d 1112, 1113 [4th Dept 2006]).
contends, as an alternative ground for affirmance (see
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60
N.Y.2d 539, 545-546 ; Cleary v Walden Galleria
LLC, 145 A.D.3d 1524, 1526 [4th Dept 2016]), that these
actions are barred by the doctrine of primary assumption of
risk because decedent and Galton chose to ride with Benedict
even though they knew that he was intoxicated. We reject that
contention inasmuch as the accident did not arise from a
sporting event or an athletic or recreational activity to
which the doctrine may apply (see Custodi v Town of
Amherst, 20 N.Y.3d 83, 89 ; Trupia v Lake
George Cent. Sch. Dist., 14 N.Y.3d 392, 396 ;
Mata v Road Masters Leasing Corp., 128 A.D.3d 780,
781 [2d Dept 2015]).
therefore modify the order in each appeal by denying
defendant's motion seeking summary judgment dismissing
the complaint and reinstating the complaint, and we remit
each matter to Supreme Court for a determination of the
alternative relief sought by defendant in its motions, i.e.,
consolidation of the actions.
concur except Nemoyer, J., who dissents and votes to affirm
in the following memorandum: I respectfully dissent and would
affirm the order in each appeal.
have a duty to maintain their roads... in a reasonably safe
condition for people who obey the rules of the road'
" (Palloni v Town of Attica, 278 A.D.2d 788,
788 [4th Dept 2000], lv denied 96 N.Y.2d 709');">96 N.Y.2d 709');">96 N.Y.2d 709');">96 N.Y.2d 709 ,
quoting Tomassi v Town of Union, 46 N.Y.2d 91, 97
; see Pinter v Town of Java, 134 A.D.3d 1446,
1446-1447 [4th Dept 2015]). In this case, defendant
adequately established that the road in question was
reasonably safe (i.e., that defendant did not breach its
road-maintenance duty), and plaintiffs thereafter
"failed to sustain their burden of raising a triable
question of fact on the issue whether the road [was]
reasonably safe for [its] lawful, intended and foreseeable
use" (Palloni, 278 A.D.2d at 788-789).
"a defendant comes forward with evidence that the
accident was not necessarily attributable to a defect, the
burden shifts to the plaintiff to come forward with direct
evidence of a defect" (Portanova v Trump Taj Mahal
Assoc., 270 A.D.2d 757, 759 [3d Dept 2000], lv
denied 95 N.Y.2d 765');">95 N.Y.2d 765 ; see Sideris v Simon A.
Rented Servs., 254 A.D.2d 408, 409 [2d Dept 1998]).
Here, as Supreme Court found, defendant submitted compelling
evidence that the road in question "is a very short park
road that goes to a parking lot. It has very subtle
curvature... The area is basically flat and wide open."
There were no prior accidents on the road, nor were there any
safety complaints related to the road itself. This evidence
is sufficient to meet defendant's initial summary
judgment burden on the element of breach (see
Palloni, 278 A.D.2d at 788). In opposition, plaintiffs
tendered no expert affidavit calling the road's safety in
doubt, nor did they come forward with any direct evidence of
an unsafe condition in the road. Rather, they simply
speculated, from the fact of the crash alone, that the road
must have been unsafe. And that is insufficient to raise a
triable issue of fact on the element of breach (see
Portanova, 270 A.D.2d at 759; Sideris, 254
A.D.2d at 409).
certain risks are unavoidable... [A]ny public roadway, no
matter how careful its design and construction, can be made
safer" (Tomassi, 46 N.Y.2d at 97).
"Nevertheless, the [government] is not an insurer"
(Mesick v State of New York, 118 A.D.2d 214, 223 [3d
Dept 1986, Casey, J., dissenting], lv denied 68
N.Y.2d 611 ), and for purposes of assessing alleged
municipal negligence, it does not matter whether the road
could be marginally safer-it only matters whether the road is
reasonably safe. In this case, there can ...