Driver “Blinded by Sun” Hits Biker

This was originally published on the SGR Blog.

Was “Emergency Doctrine” a Defense?

Andrew DiNatale sued to recover damages for injuries he allegedly sustained on April 29, 2015 while riding a bicycle. He was struck by a motor vehicle owned by Mac Mechanical Conveyor (MCC) and operated by Nicholas Gerbano.

DiNatale moved for partial summary judgment in his favor as to MMC/Gerbano’s negligence, arguing that their actions were the sole proximate cause of the accident. DiNatale also sought an order striking their affirmative defenses related to “negligence liability.” In support of the motion, DiNatale submitted his own affidavit, various photographs, and a certified copy of an MV-104A police accident report.

In his affidavit, DiNatale stated that, at approximately 6:40 a.m., he was riding a bicycle eastbound in the right lane of East Main Street in Smithtown, New York, just past its intersection with Lawrence Avenue, on a “beautiful sunny day with blue skies.” He was wearing a “bright fluorescent green long sleeve shirt, fluorescent level shoes, gray bike shorts, and a helmet,” and was riding “no more than about 1-1½ feet from the curb.” His bicycle was equipped with functioning, and activated, lights facing both front and rear. DiNatale was suddenly struck from behind by MMC’s motor vehicle, and did not hear the sound of a horn or screeching tires beforehand. Gerbano approached him after the collision and stated “I’m so sorry, I’m so sorry, I never saw you.”

In the certified copy of the MV-104A police accident report, the portion of the report entitled “Accident Description/Officer’s Notes” contained the phrase “OP#1 (Gerbano) stated he did not see bicyclist due to strong sun glare.” The police officer further added his or her own account of the accident scene, stating “Very strong sun glare for eastbound traffic.”  DiNatale requested that the Court strike that portion of the accident report containing the police officer’s personal impression of the sun glare. It declined to do so. Information in a police accident report is admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties. DiNatale additionally requested that the statement attributed to Gerbano be accepted by the Court as a party admission, and the Court did so.

The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se.

Vehicle and Traffic Law §1146 (a) provides, in relevant part, that “every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary.” An operator of a motor vehicle has a “common-law duty to see that which he or she should have seen through the proper use of his or her senses.

DiNatale established a prima facie case of entitlement to judgment in his favor on the issue of MMC/Gerbano’s liability for his alleged injuries, and as to his own freedom from comparative negligence. He demonstrated that he was riding his bicycle in a lawful manner when the motor vehicle struck him without warning. His affidavit was sufficient to demonstrate, prima facie, that the sole proximate cause of the collision was Gerbano’s vehicle striking him from behind.

As to MMC, Vehicle and Traffic Law §388 (1) provides that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for…injuries to person or property resulting from negligence in the use or operation of such vehicle…by any person using or operating the same with the permission, express or implied, of such owner.”

The burden then shifted to MMC/Gerbano to raise a triable issue.

In opposition, MMC/Gerbano submitted only the affirmation of their counsel who argued that DiNatale’s motion was premature, and that Gerbano’s statements regarding his inability to see the bicyclist due to sun glare raised a triable issue. Specifically, asserting that sun glare can present an emergency situation precluding liability.

Summary judgment may not be avoided based on a claim that discovery is needed unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence. Here, there was no evidentiary basis suggesting discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of DiNatale.

As to the issue of alleged sun glare creating an emergency situation, Gerbano did not submit an affidavit detailing the circumstances immediately prior to the accident, seemingly relying upon his statement recorded in the certified police accident report. However, such statement merely supported the idea that Gerbano was caused to have difficulty seeing due to glare. The emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.

But Gerbano did not state that his temporary “blindness” caused him to direct his vehicle toward the right side of the roadway, such that contact with DiNatale’s bicycle was possible, nor did he state that he was unable to slow or halt his motor vehicle in response to his loss of visual acuity. Gerbano did not state the duration of the sun glare condition, the specific manner in which the glare manifested itself, the position of his motor vehicle before and after the glare condition occurred, or if there were any actions taken by DiNatale to contribute to the accident. Thus, Gerbano did not establish that his actions in response to the alleged emergency were reasonable, and did not raise a triable issue regarding the applicability of the emergency doctrine to the matter. MMC/Gerbano failed to demonstrate, prima facie, the existence of any negligence on DiNatale’s part.

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