PASSENGER IN BUS ACCIDENT LOSES SUMMARY JUDGMENT BECAUSE OF "EMERGENCY DOCTRINE"

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Maxine Davis v. Metropolitan Transit Authority

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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In an action to recover damages for personal injuries, the defendant MTA Bus Company appeals from so much of an order of the Supreme Court, Kings County (Schneier, J.), entered November 9, 2010, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant MTA Bus Company is granted.

The Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant MTA Bus Company (hereinafter the defendant) on the ground that it was not at fault in the happening of the subject accident.

"The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternate courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency" (Evans v. Bosl, 75 A.D.3d 491, 492, 905 N.Y.S.2d 254, quoting Bello v. Transit Auth. of N.Y. City, 12 A.D.3d 58, 60, 783 N.Y.S.2d 648; see Miloscia v. New York City Bd. of Educ., 70 A.D.3d 904, 905, 896 N.Y.S.2d 109; Vitale v. Levine, 44 A.D.3d 935, 936, 844 N.Y.S.2d 105). Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact for purposes of application of the emergency doctrine (see Lonergan v. Almo, 74 A.D.3d 902, 903, 904 N.Y.S.2d 86; Khan v. Canfora, 60 A.D.3d 635, 636, 874 N.Y.S.2d 243), those issues may in appropriate circumstances be determined as a matter of law (see Tsai v. Zong-Ling Duh, 79 A.D.3d 1020, 1021, 913 N.Y.S.2d 748).

In support of the motion for summary judgment, the defendant relied on the plaintiff's General Municipal Law Sec. 50-h hearing testimony, her deposition testimony, and the deposition testimony of Donnell Robinson, an employee of the defendant who was the operator of the bus the plaintiff was a passenger on when the accident occurred. Those submissions established the defendant's prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that Robinson was confronted with a sudden and unexpected circumstance not of his own making and that, under the circumstances, his actions were reasonable and prudent in the context of that emergency.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's assertion that there was a triable issue of fact as to the application of the emergency doctrine in this case because the bus was speeding just prior to the accident was speculative (see Gallagher v. McCurty, 85 A.D.3d 1109, 1110, 925 N.Y.S.2d 897; Thompson v. Schmitt, 74 A.D.3d 789, 790, 902 N.Y.S.2d 606; Yelder v. Walters, 64 A.D.3d 762, 765, 883 N.Y.S.2d 290; Batts v. Page, 51 A.D.3d 833, 834, 858 N.Y.S.2d 748; Sheppeard v. Murci, 306 A.D.2d 268, 268, 761 N.Y.S.2d 244; Wolf v. We Transp., 274 A.D.2d 514, 711 N.Y.S.2d 484).

The parties' remaining contentions either are without merit or have been rendered academic.

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