Leyva v. Levy

Carro and Fein, JJ.,

dissent in a memorandum by Carro, J., as follows: To conclude as a matter of law that a jury verdict is not supported by sufficient evidence a court must find that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.” (Cohen v Hallmark Cards, 45 NY2d 493, 499.) That test was not met here, and the trial court, there*454fore, erred in dismissing the claims against the city as a matter of law. Accordingly, I would reinstate the verdict and thus dissent from the majority’s decision.

As the majority points out, Officers Wishrad and Schwartz testified at trial that Richardson, who appeared to them to have been driving in a normal fashion, made a left turn on Van Cortlandt Park South, across double yellow lines, and entered an exit of the Major Deegan Expressway. The officers maintained that Richardson entered the westerly mouth or ramp of the exit which was marked with a "Do Not Enter” sign. It is undisputed that the other branch of the exit, the Service Road or the Bailey Avenue mouth, had no sign warning drivers not to enter. Officer Wishrad, who had testified at a deposition, was impeached as follows:

"Q Officer Wishrad, do you recall testifying at an Examination Before Trial on August 10, 1982 where you gave sworn testimony?
"A Yes, I do.
"Q Do you recall being asked these questions and giving the following answers at Page 20, line 19?
" 'question: Which mouth did you exit out of?
" 'answer: I exited the service road which would be heading south.
" 'question: South on the service road?
" 'answer: Yes, sir.
" 'question: That would be the exit that the Richardson vehicle entered; is that correct?
" 'answer: Yes.
" 'question: Did you observe whether there were any signs or traffic control devices controlling the exit of the mouth that you exited on to the service road, right at the exit mouth itself?
" 'answer: No, there were no signs that I recall.’ ”

The majority states that this prior testimony did not raise a factual issue of credibility on the question of which ramp Richardson entered, and it refers to other portions of Wish-rad’s deposition to demonstrate that his prior testimony was not inconsistent with his trial testimony. Contrary to the statement by the majority, the portions of Wishrad’s deposition upon which the majority relies were never admitted into evidence at the trial and are not a part of the record on appeal. The majority relies on three statements in the record made by three different counsel which state that the deposi*455tions were read into evidence, but none of which prove that the entire depositions were read into evidence. For instance, at page 571, counsel for plaintiff Leyva, while arguing that there was some evidence to indicate that Richardson had entered the unsigned mouth of the exit, pointed out that the depositions "were read in at which time they [Wishrad and Schwartz] identified photographs of that exit.” Obviously, Leyva’s counsel was referring only to the very select portions of the depositions he had used to cross-examine Wishrad and Schwartz.

At page 620 of the record, the city’s trial counsel referred during summation to testimony that the officers had given at the examination before trial. Again, this statement does not prove that the depositions were read into the record. Rather, it only shows that trial counsel for the city may have believed they were read into the record or may have been improperly referring to matters outside the record. During the summation by counsel for plaintiff McNeil, Mr. Voletsky also stated that the depositions of Wishrad and Schwartz had been read into evidence and then quoted that portion of Wishrad’s prior testimony which had been used to impeach him at trial. At no point did any counsel state that the entire depositions were read into evidence, and the majority fails to cite any part of the record where the depositions were actually read into evidence in full.

In fact, on appeal, plaintiffs’ attorneys objected strenuously to the respondent’s use of those portions of the depositions not contained in the printed record. The city’s appellate attorney, who was not trial counsel, advised this court in a letter submitted prior to oral argument that based on pages 571, 620 and 669 of the record, he had a good-faith basis for believing that the depositions were read into the record. He then, however, offered to submit a new brief without the objected-to references to the depositions. It is apparent from the conciliatory tone of this letter that respondent has recognized its error in relying on the entirety of these depositions on appeal. For this court, therefore, to consider those portions of the deposition on this appeal for any purpose is patently improper. (Matter of Poulos v D’Elia, 66 AD2d 820.)

Secondly, any person reading or listening to the portion of Wishrad’s deposition used to impeach him at trial could reasonably infer from it that Richardson did enter the unsigned exit. Thus, a question of credibility on this crucial issue was sufficiently raised. Moreover, CPLR 3117 (a) (2) permits an adverse party to use a party-deponent’s deposition as evidence-*456in-chief and not merely to impeach the witness’s credibility. (Feldsberg v Nitschke, 49 NY2d 636, 642.) In fact, this jury was so instructed. Thus, it is impossible to say that there existed "no valid line of reasoning” which could have led the jury to conclude that Richardson entered the unsigned mouth of the exit.

I also cannot adhere to this court’s conclusion that even if Richardson entered the unsigned exit, the city’s failure to post a "Do Not Enter” sign was not a proximate cause of the accident, since Richardson’s severe alcoholic intoxication was an intervening and superseding cause as a matter of law.

First, it is unquestionable that the fact finders had a sufficient basis for determining that the city’s failure to post a sign at the Bailey Avenue mouth was negligent. The majority points out that Bronx Borough Engineer Frank Piturro testified that a "Do Not Enter” sign was not necessarily needed at this exit ramp because of the double yellow lines on Van Cortlandt Park South. Therefore, it is assumed that without any other traffic signal or marking whatsoever a driver should know not to make a left turn from Van Cortlandt Park South to the unsigned exit ramp solely because of the presence of double solid lines, which merely separate the northbound and southbound flows of traffic. New York State Manual of Uniform Traffic Control Devices (Manual [17 NYCRR part 200]) § 261.5 (b), adopted pursuant to New York State Vehicle and Traffic Law § 1680, states the following: "Yellow barrier lines shall be used only between lanes of traffic flow in opposite directions or to outline areas where all traffic must pass to the right. They are basically 'no-passing’ markings.” (See also, Manual § 260.6). With reference to no-passing markings, Vehicle and Traffic Law § 1126 (b) provides that such markings do not, however, prohibit a driver from turning left to enter or leave a highway.

Marvin Specter, a consultant engineer, testified that the geometric design of the Service Road exit ramp indicated that a sign was vital. While the majority points to the fact that City Engineer Piturro testified that he felt a sign was not necessarily needed, the strength of that assertion is weakened by the fact that Piturro nevertheless made an official recommendation to place a sign there. In light of the fact that the omission in posting a sign created the danger that a person would enter the exit and travel southbound on a northbound highway, the jury could well have concluded that the city was negligent.

Whether the causal connection between the city’s negli*457gence and the plaintiffs’ injuries was severed by Richardson’s intervening act of driving into the exit in a grossly intoxicated state depends on whether the intervening act was an extraordinary or unforeseeable consequence of the danger or risk created by the city’s negligence. (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315.) Determining these questions of foreseeability is ordinarily a function for the fact finder, as is the question of negligence itself. (Supra.)

In Derdiarian (supra), the plaintiff was injured when the driver of a car, who had neglected to take his medication, suffered an epileptic seizure, lost consciousness and crashed through a negligently barricaded roadway construction site. Even though the driver was unconscious when he went through the improperly barricaded area, the court refused to find as a matter of law that the driver’s negligence was a superseding cause which interrupted the link between the construction company’s negligence in failing to safeguard the excavation site and the plaintiff’s injuries. The court stated (p 316): "From the evidence in the record, the jury could have found that Felix negligently failed to safeguard the excavation site. A prime hazard associated with such dereliction is the possibility that a driver will negligently enter the work site and cause injury to a worker. That the driver was negligent, or even reckless, does not insulate Felix from liability [citations omitted]. Nor is it decisive that the driver lost control of the vehicle through a negligent failure to take medication, rather than a driving mistake [citation omitted]. The precise manner of the event need not be anticipated. The finder of fact could have concluded that the foreseeable, normal and natural result of the risk created by Felix was the injury of a worker by a car entering the improperly protected work area. An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.”

Here, the driver, Richardson, was grossly intoxicated with a .29% alcoholic content of the brain, but he was far from unconscious. Moments before entering the exit he had stopped at a red light and proceeded normally as the light turned green, thus indicating he could respond to at least some traffic signals. He then made the left turn and navigated his car along the curved road to the Major Deegan Expressway in a normal fashion. Even Dr. Bidanset, a toxicologist, agreed at trial that Richardson’s ability to navigate his car in this fashion appeared inconsistent with the .29% finding, which *458would normally mean that the driver would be "virtually asleep.”

The majority emphasizes that Richardson’s intoxication, which prevented him from responding to the many warnings of danger he received before the accident took place, which if heeded could have averted the collision, serves to sever the causal link between the city’s negligence and plaintiffs’ injuries. According to Derdiarian (supra), however, the focus must be on whether the foreseeable and natural result of the city’s negligence in failing to post a "Do Not Enter” sign is the result which occurred here, a head-on collision between a southbound and a northbound car. Obviously, the possibility of a head-on collision was the precise danger created by the city’s negligence. Although Derdiarian (supra, at p 316) states that "[t]he precise manner of the event need not be anticipated”, the city could, in any case, have anticipated that a drunken driver with impaired driving abilities could enter the negligently unsigned exit ramp and not even notice an unmarked police car behind him honking its horn and displaying a red dome light.

As to the warning signs along the highway itself, which the majority states would have alerted a sober person to his mistake, it is important to note that there was no evidence to determine whether Richardson in fact had any opportunity to notice such warning signs due to the timing of the accident, the length of the highway that he traveled, and the nature of the traffic conditions at the time. For example, it cannot be said that Richardson should have seen that the cars on the other side of the barrier were traveling in the same direction as he, when there was no evidence as to whether at 3:00 a.m. there was any traffic on the other side. Likewise, no evidence was presented that any other cars besides the taxicab were coming towards Richardson so as to alert him to the fact that he was traveling in the wrong direction. Nor does it appear that Richardson had much time to notice anything, since the testimony suggests that the impact occurred very rapidly. Officer Schwartz heard the crash while he was still on Bailey Avenue and estimated it occurred 20 seconds after Richardson first entered the exit, not the highway. Plaintiff McNeil, one of the injured taxicab passengers, described Richardson’s headlight as "coming from nowhere.” Yvonne Foss testified "It was so fast, it was just like that. (Whereupon the witness snaps her finger.)” The point of impact was estimated as being between 200 yards and 1,500 feet from the exit. Thus, what were described as numerous "ignored” warnings by Richard*459son after he entered the highway are really no more than speculations, which the jury was entitled to and apparently did disregard due to the reality that this accident occurred so rapidly.

In conclusion, then, it cannot be said that there was no basis in the record for the jury to conclude that Richardson entered the negligently unsigned exit ramp and that the foreseeable result of the city’s negligence was that a car would enter the highway from this exit and collide with a car traveling in the opposite direction. Accordingly, Richardson’s negligence was not a superseding cause relieving the city of its responsibility. The jury verdict, finding the city only 10% liable, cannot be said to be so irrational as to have merited dismissal as a matter of law. Accordingly, I would reverse the judgment and reinstate the jury verdict.