VALERIE KOVACH, AS ADMINISTRATRIX OF THE ESTATE OF WESLEY ALAN KOVACH, DECEASED, PLAINTIFF-RESPONDENT,
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
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.
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
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 )
and Manning v Brown (91 N.Y.2d 116');">91 N.Y.2d 116 ). 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.
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 ; La Page v Smith,
166 A.D.2d 831, 832-833 [3d Dept 1990], lv denied 78
N.Y.2d 855 ; 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 ).
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 ...