Nikolaus v. State

Weiss and Levine, JJ., dissent and vote to affirm in a memorandum by Weiss, J. Weiss, J. (dissenting).

We respectfully dissent. Claimant was required to establish that the State Trooper’s conduct was a substantial causative factor in the sequence of events that led to her injury (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520; Restatement [Second] of Torts § 430 [1965]). "That showing need not be made with absolute certitude nor exclude every other possible cause of injury” (Koester v State of New York, 90 AD2d 357, 361; see, Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205). It was enough that claimant showed facts and conditions from which the negligence of the trooper and the causation of the accident by that negligence could reasonably be inferred (see, Koester v State of New York, supra, at 361; Sewar v *867Gagliardi Bros. Serv., 69 AD2d 281, 289, affd 51 NY2d 752), And where, as here, an intervening act contributes to claimant’s injuries, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315).

These principles in mind, review of the testimony demonstrates that the Court of Claims had ample basis to conclude that the speed of the Wentworth car did not exceed the lawful limit, that Wentworth did not have sufficient time to react to the flashing lights on the roof of the patrol car, that she was surprised and startled by the lights and, in response, crossed the center line into claimant’s lane causing the collision. The conclusion that the proximate cause of the accident was that the location of the patrol car was too close to the crest of the hill could logically be inferred from the facts and circumstances contained in the record. Accordingly, the findings of fact made by the court should not be disturbed (see, Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723).