Court granted partial summary judgment on issue of liability in claim for multiple personal injuries resulting from automobile accident.
|Claimant(s):||RODNEY K. WATSON, CHRISTINE A. WATSON, RODNEY K. WATSON and CHRISTINE A. WATSON As Parents of BRANDON R. WATSON, KAITLYN A. WATSON and CONNOR J. WATSON|
|Claimant short name:||WATSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||GOZIGIAN, WASHBURN & CLINTON
BY: E.W. Garo Gozigian, Esq., of counsel
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 29, 2009|
|See also (multicaptioned case)|
Claimants Rodney Watson(1) and Christine Watson, both individually and as parents and natural guardians of their three minor children (Brandon Watson, Kaitlyn Watson and Connor Watson), move for partial summary judgment on the issue of liability in this claim. The claim arises out of a serious automobile accident involving a Department of Environmental Conservation (DEC) vehicle owned by defendant State of New York (defendant) and driven by an Environmental Conservation Officer, and a vehicle driven by Mrs. Watson in which the three children were passengers.
On Sunday, April 26, 2009, at approximately 11:05 a.m., Mrs. Watson was driving her Dodge Caravan west on Otsego County Route 11 (Route 11). Her three children were appropriately seated in the vehicle, Kaitlyn in a booster seat, Connor in a car seat, and Brandon with his seat belt buckled. That morning, they had attended church and done some shopping, and were going home.
Route 11 is a two-lane road on which the Watson family's home is located. The weather that day was clear, and the roads were dry. The Watson vehicle was traveling at less than the speed limit(2) of 55 miles per hour(3) as it approached the intersection of Route 11 and Piermott Lane. Piermott Lane is a two-lane road which curves left to right through the area approaching and just prior to its intersection with Route 11.(4) A motorist on Piermott Lane approaching the intersection with Route 11 would travel up a 7% grade to a stop sign, and would have limited visibility.(5)
As the Watson vehicle approached the intersection of Route 11 and Piermott Lane, Mrs. Watson suddenly saw a vehicle to her right. The vehicles collided immediately thereafter. Mrs. Watson avers she had "no opportunity to apply [her] brakes, swerve or otherwise attempt to avoid or reduce the impact of the collision."(6)
Environmental Conservation Officer (ECO) Kurt Zurmuhlen was driving the vehicle (a Jeep Cherokee) that collided with the Watson vehicle. ECO Zurmuhlen stated to three different law enforcement officers (two at the scene and one later at the hospital) that he was solely responsible for the accident,(7) admitting that he pulled out right in front of the Watson vehicle. The Accident Reconstruction Report prepared by the Otsego County Sheriff's Department concluded that the cause of the accident was "[f]ailure to stop for a stop sign on the part of . . . Zurmuhlen."(8) The Accident Reconstruction Report also notes that there were "no roadway defects or hazards . . . that would hinder safe vehicular traffic."(9)
Mrs. Watson was treated for numerous fractures,(10) Kaitlyn Watson was treated for a fractured clavicle,(11) Brandon Watson was treated for a fracture of the lumbar spine and of the clavicle,(12) and Connor Watson was treated for a fractured skull and traumatic brain injury.(13) These injuries were all causally related to the accident, and all were serious injuries within the meaning of Insurance Law § 5102 (d) (see Autiello v Cummins, 66 AD3d 1072 ).
It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 ; De Cristofaro v Joann Enters., 250 AD2d 990 ). Negligence cases such as this "by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for determination" by the finder of fact (Ugarriza v Schmieder, 46 NY2d 471, 474 ; see also De Cristofaro v Joann Enters., supra). To establish entitlement to relief in this matter, claimants must not only establish negligence as a matter of law, but must also demonstrate the absence of any comparative fault (Drew v J.A. Carmen Trucking Co., Inc., 8 AD3d 1112 ; King v Washburn, 273 AD2d 725 ).
This, however, is one of those rare instances where summary judgment is appropriate. The record, including the Accident Reconstruction Report and ECO Zurmuhlen's uncontroverted admissions, clearly establishes that ECO Zurmuhlen was at fault (see Wolfson v Milillo, 262 AD2d 636 ). Defendant has failed to establish the existence of any triable issues of fact. Moreover, there are no allegations of any comparative fault on the part of Mrs. Watson, nor is there anything in the record which might even suggest such a thing (see id.; McGraw v Ranieri, 202 AD2d 725 ).
As a matter of law, claimants are entitled to summary judgment on the issue of liability, and their motion is granted. The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability as set forth above. A trial on the issue of damages will be scheduled as soon as practicable.
Let interlocutory judgment be entered accordingly.
December 29, 2009
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimants' motion:
1) Notice of Motion filed on October 30, 2009; Affidavit of E.W. Garo Gozigian, Esq., sworn to on October 15, 2009, Affidavit of Christine A. Watson sworn to on September 29, 2009; Affidavit of Michael F. TenEyck sworn to on October 15, 2009; Affidavit of Michael A. Covert sworn to on October 8, 2009; Affidavit of Ronald E. Thomas sworn to on October 15, 2009; Affidavit of John Imperato, Jr., sworn to on October 28, 2009, and attached exhibits.
2) Claimants' Brief dated October 28, 2009.
3) Affirmation in Response of Joseph F. Romani, Assistant Attorney General, dated November 23, 2009.
4) Affidavit of David E. Quinn, M.D., sworn to on December 15, 2009, and attached exhibit.
5) Affidavit of James McChesney, M.D., sworn to on December 22, 2009, and attached exhibit.
6) Affidavit of David L. Semenoff, M.D., sworn to on December 17, 2009, and attached exhibits.
7) Affidavit of David L. Semenoff, M.D., sworn to on December 17, 2009, and attached exhibit.
Filed papers: Claim filed on June 15, 2009; Verified Answer filed on July 15, 2009; Amended Claim filed on August 25, 2009; Verified Answer to Amended Claim filed on September 14, 2009.
1. Claimant Rodney Watson's claim is derivative in nature.
2. Affidavit of Investigator Michael A. Covert, sworn to Oct. 8, 2009, in support of claimants' motion for partial summary judgment, ¶10.
3. Id. at ¶ 8.
4. Accident Reconstruction Report at 2, in support of claimants' motion for partial summary judgment.
6. Affidavit of Christine A. Watson, sworn to Sept. 29, 2009 in support of claimants' motion for partial summary judgment, ¶ 4.
7. Zurmuhlen made this statement to Otsego County Sheriff's Department Senior Investigator Michael F. TenEyck (Affidavit of Michael F. TenEyck, sworn to Oct. 15, 2009 in support of claimants' motion for partial summary judgment, ¶ 3), Otsego County Sheriff's Department Deputy Ronald E. Thomas (Affidavit of Ronald E. Thomas, sworn to Oct. 15, 2009 in support of claimants' motion for partial summary judgment, ¶ 3), and Otsego County Sheriff's Department Deputy John Imperato, Jr. (Affidavit of John Imperato, Jr., sworn to Oct. 28, 2009 in support of claimants' motion for partial summary judgment, ¶ 3), as set forth in the aforementioned affidavits.
8. Accident Reconstruction Report at 7 in support of claimants' motion for partial summary judgment.
9. Id. at 2.
10. Affidavit of David E. Quinn, M.D., sworn to Dec. 15, 2009 in support of claimants' motion for partial summary judgment.
11. Affidavit of James McChesney, M.D., sworn to Dec. 22, 2009 in support of claimants' motion for partial summary judgment.
12. Affidavit of David L. Semenoff, M.D., sworn to Dec. 17, 2009 in support of claimants' motion for partial summary judgment.
13. Affidavit of David L. Semenoff, M.D., sworn to Dec. 17, 2009 in support of claimants' motion for partial summary judgment. The Court notes that Dr. Semenoff submitted individual affidavits concerning Brandon and Connor.