New York State Court of Claims

New York State Court of Claims

KENNY v. THE STATE OF NEW YORK, #2002-009-106, Claim No. 101959


Claimants sought damages for personal injuries suffered in a passenger side collision with a vehicle operated by a State employee. The Court apportioned liability 50% against the State and 50% against claimants, finding that claimants failed to provide any warning of their impending right-hand turn, and that the State employee failed to maintain a reasonably safe distance behind claimants in operating his vehicle.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
BY: Joseph L. Lucchesi, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants Paula and John Kenny seek damages for personal injuries suffered by Paula Kenny[1]
as a result of an automobile accident which occurred on January 20, 1999, allegedly caused by the negligence of John Hicks, a Regional Director for the New York State Department of Environmental Conservation. The trial of this claim was bifurcated, and this decision relates only to liability.
On the morning of the day of the accident, Mr. and Mrs. Kenny were proceeding in an easterly direction on New York State Route 5 in the Town of Waterloo, Seneca County. Mr. Kenny was operating the vehicle, and Mrs. Kenny, the owner of the vehicle, was seated in the right, front passenger seat. In the area where the accident occurred, Route 5 is a two-lane highway, with one lane running east and the other lane running west, separated by double-solid yellow lines. Although it was January, the weather conditions at the time were clear, and the pavement was dry and clear. Claimants reside on the south side of Route 5, a short distance east of its intersection with County Route 112, also known as Packwood Road. At approximately 10:00 a.m., claimants were driving to their home, heading east on Route 5. Mr. Hicks, driving a State-owned vehicle, was also proceeding east on Route 5, as he was planning to attend a public hearing being held in the Village of Waterloo. While Mr. Kenny was in the process of turning right into their driveway, claimants' vehicle was struck on the right side by the vehicle operated by Mr. Hicks, with impact occurring near the passenger-side door at a perpendicular angle.

Frank E. Schmitter, a New York State Trooper, responded to the accident and prepared a police accident report.

Claimant John Kenny testified that as he approached his driveway, he signaled his upcoming right-hand turn, and slowed his vehicle. As he turned to the right to enter his driveway, he was struck on the rear right side of his vehicle by the vehicle operated by Mr. Hicks.

The testimony of Mr. Hicks, however, was substantially different. He testified that as he approached the Packwood Road intersection, he was following the Kenny vehicle, at a speed of approximately 40-45 miles per hour. He testified that he then saw the Kenny vehicle pull left, across the double-solid lines, into the oncoming traffic lane. He did not observe any directional lights, but did notice the brake lights come on. Mr. Hicks remained in the right-hand lane, when the Kenny vehicle suddenly turned right, into his path. The two vehicles then collided, as described above.

Trooper Schmitter, who was called to the scene, arrived shortly after the accident. Upon his arrival, he observed the relative location of the vehicles, and noted that they had not been moved subsequent to the accident. Based upon his observations at the scene, and his investigation, he prepared an accident report (Exhibit 10) indicating that at the point of impact, the Kenny vehicle was facing south, perpendicular to the Hicks vehicle, which was shown to be in the eastbound driving lane. The front of the Kenny vehicle was depicted as just entering the Kenny driveway on the south side of Route 5.

Vehicle and Traffic Law, § 1129(a) provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

The courts of this State have generally held the following vehicle to a higher standard of care than the forward vehicle in such situations (see,
Crannell v Serrano, Jr., 194 AD2d 641; Mead v Marino, 205 AD2d 669; Kastanis v Del Fuoco, 241 AD2d 541). The driver following the vehicle slowing down or stopping has a better vantage point to assess and predict the movements of the vehicle in front. The following vehicle, when using due care, has the absolute ability to prevent any and all accidents from occurring by maintaining a safe distance as required by § 1129(a) of the Vehicle and Traffic Law.
That having been said, however, the party driving the following vehicle cannot be expected to assume full responsibility for the irrational and illegal maneuvers of the vehicle he is following. Where the driver of the lead vehicle fails in his duty to proceed with due care, the liability arising from § 1129(a) must be re-evaluated.

In this case, the Court finds, based upon the position of the vehicles following the accident, that Mr. Kenny had swung wide, past the double-solid traffic lines and into the oncoming traffic lane, before making the right turn into his driveway. The Court notes that Vehicle and Traffic Law, § 1166(a), requires that such approaches be made "as close as practicable" to the right-hand edge of the roadway.

The Court further finds, after a full consideration of the testimony presented, that Mr. Kenny also failed to engage his right turn signal as he approached his driveway, as required by Vehicle and Traffic Law, § 1164(a). Had he done so, the Court cannot believe that Mr. Hicks would have attempted to pass the Kenny vehicle on the right if there been any indication whatsoever that the Kenny vehicle was preparing to turn right.

In a situation where the driver of the lead car gives the appearance, to a reasonable person following his vehicle, that he is leaving his lane to the left, the lead driver must bear some responsibility for the harmful outcome of his subsequent travels to the right.

Based on the above findings, the Court concludes that Mr. Kenny failed to provide any warning whatsoever to Mr. Hicks of his impending right-hand turn. However, the Court also finds that Mr. Hicks failed to keep a reasonable safe distance from the claimants in anticipation of any unforeseen actions, and his impatience led him into a situation where the accident became unavoidable.

After due consideration and a review of all the evidence presented at trial, therefore, the Court finds that both drivers share equal responsibility for this accident, and that liability should be apportioned 50% against the State of New York and 50% against claimant John Kenny. The negligence of Mr. Kenny must also be imputed to Mrs. Kenny, as she was the owner of the vehicle, as well as a passenger, pursuant to Vehicle and Traffic Law, § 388.

Any motions not heretofore ruled upon are denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.


September 13, 2002
Syracuse, New York

Judge of the Court of Claims

[1] The claim of John F. Kenny is derivative in nature.