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Kovach v. McCollum

Supreme Court of New York, Fourth Department

November 17, 2017

VALERIE KOVACH, AS ADMINISTRATRIX OF THE ESTATE OF WESLEY ALAN KOVACH, DECEASED, PLAINTIFF-RESPONDENT,
v.
KATHLEEN MCCOLLUM, AS CO-ADMINISTRATRIX OF THE ESTATE OF CALDON S. MCCOLLUM, DECEASED, AND DALE S. MCCOLLUM, AS CO-ADMINISTRATOR OF THE ESTATE OF CALDON S. MCCOLLUM, DECEASED, DEFENDANTS-APPELLANTS.

          FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

          LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

          PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

         Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered July 6, 2016. The order granted the motion of plaintiff for, inter alia, summary judgment dismissing the affirmative defense of culpable conduct on the part of plaintiff's decedent, and denied the cross motion of defendants for summary judgment dismissing the complaint.

         It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of plaintiff's motion with respect to the affirmative defense of culpable conduct on the part of plaintiff's son and reinstating that defense, and as modified the order is affirmed without costs.

         Memorandum: Plaintiff commenced this action seeking damages for the death of her son, who was a passenger in a pickup truck operated by defendants' son that went off the road and struck a tree, causing the death of both occupants. Plaintiff moved for, inter alia, summary judgment dismissing the affirmative defense of culpable conduct on the part of her son. Defendants cross-moved for summary judgment dismissing the complaint on the ground that the accident occurred during an "illegal street race" in which plaintiff's son participated, that his death was the direct result of his own serious violation of the law, and that recovery on his behalf was therefore precluded as a matter of public policy under the rule of Barker v Kallash (63 N.Y.2d 19');">63 N.Y.2d 19 [1984]) and Manning v Brown (91 N.Y.2d 116');">91 N.Y.2d 116 [1997]). In the alternative, defendants sought summary judgment on the issue whether plaintiff's son had been comparatively negligent. Supreme Court granted plaintiff's motion and denied defendants' cross motion, and defendants appeal.

         We agree with defendants that the Barker / Manning rule may apply to a high-speed street race between motor vehicles, i.e., "a drag race as that term is commonly understood" (People v Senisi, 196 A.D.2d 376, 381 [2d Dept 1994]; see Hathaway v Eastman, 122 A.D.3d 964, 965-967 [3d Dept 2014], lv denied25 N.Y.3d 904');">25 N.Y.3d 904 [2015]; La Page v Smith, 166 A.D.2d 831, 832-833 [3d Dept 1990], lv denied 78 N.Y.2d 855 [1991]; see generally Finn v Morgan, 46 A.D.2d 229, 231-232 [4th Dept 1974]), even if the participants did not plan a particular race course and the incident thus did not qualify as a "speed contest" within the meaning of Vehicle and Traffic Law § 1182 (a) (1) (see People v Grund, 14 N.Y.2d 32, 34 [1964]). The record here, however, supports conflicting inferences with respect to whether defendants' son was engaged in a race with other pickup truck drivers (see O'Connor v Kuzmicki, 14 A.D.3d 498, 498 [2d Dept 2005]; Merlini v Kaperonis, 179 A.D.2d 556, 556-557 [1st Dept 1992]) and, if so, whether plaintiff's son was a "willing participant" in the race (Manning, 91 N.Y.2d at 120; see Prough v Olmstead, 210 A.D.2d 603, 603-604 [3d Dept 1994]; cf. Hathaway, 122 A.D.3d at 966). Thus, the applicability of the Barker / Manning rule is an issue of fact (see generally Pfeffer v Pernick, 268 A.D.2d 262, 263 [1st Dept 2000]). In addition, there are issues of fact with respect to the alleged comparative negligence of plaintiff's son in choosing to ride with defendants' son, in view of evidence that defendants' son was under the influence of alcohol and had said that he intended to "chase... down" the other trucks (see ...


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