Kelly and Crossman Collide at Entrance to Car Wash on Old Vestal Road

Accident Implicates Several V&TL Provisions & Contributory Negligence

In his Small Claims Court complaint, John Crossman sought $5,000.00 for damages to his vehicle, a 2010 Mazda 3, as a result of a collision he alleged was caused by Nora Kelly. Crossman’s vehicle was being driven by Inna Opatska at the time of the accident. According to the complaint, Opatska is the fiancé of Crossman’s son, John Crossman Jr., who was in the back seat with their one-year-old son when the collision took place.

The complaint alleged that:

Kelly applied her right turn signal and brakes indicating to make a right turn into CK’s Car Wash. Kelly pulled onto the right shoulder of the road, further indicating her intention of travel. Opatska proceeded to travel straight on Old Vestal Road when Kelly pulled back onto the roadway and into the side of Crossman’s car pushing the vehicle and passengers into the oncoming lane.

A hearing demonstrated that the damages to Crossman’s car could have been processed through his insurer, but he did not want to have his insurance premiums affected by the claim. Crossman otherwise alleged that he had been unable to make doctor appointments for his medical condition due to the operability of his vehicle and that, even though she is not listed as a Crossman, Opatska had been left traumatized. Opatska, Crossman, Jr., and Crossman. Sr. testified on behalf of Crossman’s case.

Kelly’s attorney noted that the Kelly’s insurer took the case to arbitration and described her client’s position as follows:

Kelly was driving down Vestal Road, which was divided by a double yellow line; she briefly passed the road on her left where she should have turned; she pulled to the right and then back into the road. It was then that the driver of the Crossman’s vehicle passed her on the left. Kelly never left her lane of travel.

Opatska was Crossman’s first witness. She testified that on December 11, 2021, she was driving the Crossman’s vehicle, a 2010 Mazda 3–a compact sedan–on Old Vestal Road, which is a two-lane roadway divided by a double yellow line, on her way home to have lunch after shopping at Walmart. It was her testimony that, as she was trailing Kelly’s vehicle, Kelly pulled to the right and then back into the road as Opatska was passing to the left of Kelly’s vehicle when Kelly’s vehicle collided into the vehicle she was driving. According to Opatska, she never left her lane of travel.

Opatska further explained that Kelly’s vehicle signaled to make a right turn, finished the right turn, and that Opatska started to make her pass, when Kelly “just turned” into her, noting that she had her young child and fiancé in the back seat.

On cross, Opatska testified that the weather was “nice”, the road was “dry” and it was daytime. She denied being in a rush; testified that she was driving 30 MPH in the 30 MPH speed zone; and responded that she had been driving for almost 7 years. She acknowledged that the road was marked with two yellow lines.

Opatska further testified on cross that she was not behind Kelly for very long; Kelly had pulled in front of her at a traffic light; she was about 20 feet behind Kelly when Kelly began to make her turn; and that she was being especially cautious while driving with her baby in the back seat. Opatska further noted that Kelly did not put on her blinker until being about five (5) feet shy of the car wash parking lot.

As to Kelly’s actions, Opatska further testified on cross that Kelly put on her signal and turned right into the car wash. It was at that point that Opatska slowed down until she deemed it safe to pass. At that point, Kelly’s vehicle pulled right into her.

Opatska denied leaving her lane of travel until Kelly’s car pushed Opatska into the lane for oncoming traffic. In that regard, she noted that there was a lot of damage to the car she was driving, in particular to its front and passenger side areas. When asked the exact position of her driver side tires when the collision took place, Opatska stated that her left tires touched between the 2 yellow lines.

John Crossman, Jr. testified that he was sitting in the back seat of the vehicle driven by Opatska, when the accident took place. According to Crossman, Jr., Opatska was “a car or 2 at most” behind Kelly, when Kelly put on her right turn signal and pulled into the car wash, noting that she was completely off the road. He otherwise testified that Opatska never crossed the yellow lines and that Optaska and he were pushed into oncoming traffic when Kelly’s vehicle collided with them.

On cross, Crossman, Jr. initially denied seeing Kelly’s vehicle until it was turning into the car wash and Opatska. He also denied seeing Kelly put on any turn signal. But he proceeded to testify that he observed Kelly’s car pull off the roadway and then back into their car as they were passing Kelly. Crossman, Jr. further claimed that Kelly pulled off the road for approximately five (5) seconds before pulling back into the roadway, and that her car was completely over the white fog line with both sets of tires before returning to the roadway and colliding with their vehicle. Crossman, Jr. was familiar with the road and confirmed the double yellow line in the middle of the road. He further noted that the child was taking a nap prior to the collision.

Crossman, Jr. explained that the impact occurred towards the front of each vehicle and damaged the front quarter panels of each vehicle, but that the Crossman vehicle had the entire passenger side of the vehicle damaged as it continued forward. He commented that Kelly’s vehicle came to a stop after turning into them thereby minimizing the area of damage to her car.

Crossman, Jr. otherwise remarked during cross that it was brisk, but not excessively cold out and otherwise dry and reaffirmed that their vehicle never crossed the double yellow lines from his perspective from the back seat. He further noted that he and Opatska may have been heading to pick up his father at the hospital before heading home.

John Crossman, testified last and had little to add, except that the car was not fixed, because he did not want to incur a surcharge or penalty on his insurance for something that he believed was Kelly’s fault. Crossman otherwise introduced three estimates, all of which were received, without objection, in the amount of $3,626.26, $3,848.14, and $5,561.87. 

Kelly, who lived in Afton, testified that she was driving from Lowes in Vestal and heading to another store, while Christmas shopping with her mother, when the accident occurred. She testified that it was a beautiful day out and that the roads were dry. She was driving a 2017 Jeep.

Kelly testified that she made a right onto Old Vestal Road, a two-lane roadway, with a 30 MPH speed limit. While travelling, she realized she made an error and wanted to turn around. She testified that she turned her right signal on to make a U-turn in a parking lot of a car-wash business, but upon realizing that there was an area to the left to turn around, immediately put on her left blinker and, seeing nobody in the oncoming land, proceeded to turn to the left before the impact with the Crossman vehicle occurred.

Curiously, Kelly testified that she pushed the blinker down to make a left turn “as quick as it went up” to make a right hand turn, but testified that this took about 3 seconds to accomplish. In so doing she denied that her vehicle ever left her lane of travel prior to turning to the left, testifying that she never moved to the right at all. In so doing, she denied ever seeing or being cognizant of the Crossman car before impact with the driver’s side of her vehicle. She testified that she was slowing down prior to turning and was likely travelling around 25 MPH at the time of the collision.

As to the damage to her vehicle, Kelly testified that it was limited to the driver side and that there was no damage to the rear, front, or passenger side of her vehicle. After the collision, Kelly explained that she looked at the other vehicle, noticing the damage to its front passenger side. She spoke with Crossman, Jr., who was calling the police, and then spoke Ms. Opatska to make sure everyone was safe, before speaking with the police officer.

Kelly testified that she spoke with the police officer and explained what happened and that it was the same thing she stated in court. When asked about statements in the police report that were not consistent with her testimony (that she started to turn right before changing her mind and turning to the left, and that she side-swiped the Crossman’s vehicle), Kelly, sounding frustrated, denied the versions that were in the police report, noting that she did not “believe” that is what she told the police officer. She further elaborated that she did not make a right turn into the carwash, though she thought about it for two seconds before changing her mind. She otherwise testified that, following the collision, Crossman, Jr. commented that “my dad’s going to kill me.”

Both parties introduced several pictures of the vehicles following the collision, along with an aerial view of the accident location. All of the pictures were received without objection, though only the Crossman’s were technically received as Kelly offered the same pictures. The pictures reflected damage to both parties’ vehicles, which appeared to be generally consistent with the testimony presented regarding the collision. On the passenger side of the Crossman vehicle, the damage extended from the hood and bumper, with most of the damage appearing to be to the front passenger side quarter panel of the vehicle. There was less serious damage noted along the rear quarter panel. There were also some minor scrapes to the passenger rear door and minor impact along the passenger side of the vehicle.

Kelly’s vehicle included similar damage to the driver side quarter panel, which began further back than on the Crossman vehicle, so did not appear to include damage to the hood and bumper. There was also damage along the rest of the driver side of the vehicle, stopping around the front portion of the rear wheel well.

In small claims cases, the plaintiff bears the burden of proving a claim by a preponderance of the evidence. The court has the obligation to apply the facts to the relevant law, keeping in mind the statutory mandate of substantial justice.

Pertinent Vehicle and Traffic Law provisions were as follows:

No person shall . . . turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided. (b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. (c) No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give signal. (d) The signals provided for in section eleven hundred sixty-four shall be used to indicate an intention to turn, change lanes [.] Veh. & Traf. Law § 1163

No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless authorized by the provisions of this chapter and unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken. Veh. & Traf. Law § 1124

When official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings. Veh. & Traf. Law § 1126

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. Veh. & Traf. Law § 1129

Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows: 1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement; 2. When overtaking or passing bicyclists, pedestrians, animals or obstructions on the right half of the roadway; 3. When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard . . . (b) In addition, upon all roadways, any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway. Veh. & Traf. Law § 1120

While small claims matters are not bound by the rules of evidence, a determination may not be based solely on hearsay. Even with its relaxed rules of procedure and evidence, the fundamental right to confront a witness by cross-examination must be preserved.

In order to sustain his burden of proof, Crossman was required to demonstrate that Kelly was to some degree negligent and therefore at fault in causing the accident. But the Court found that, in this case, both parties were at fault, but to different degrees.

The Court was troubled by some of Kelly’s testimony. She steadfastly claimed that, after signaling to make a right turn upon realizing that she was heading in the wrong direction, she never moved towards the right at all. Instead, she testified that she immediately changed her blinker direction from right to left, while also claiming that three (3) seconds transpired to do this. When confronted with statements attributed to her from the police report, Kelly adamantly claimed that the officer must have miscommunicated what she actually stated to the officer, continually denying that she began to turn right into the car wash before turning left and colliding into Crossman’s car.

Crediting Kelly’s initial testimony, that she turned the left blinker on as quick as she turned on the right one, then she failed to have the blinker on for the requisite 100 feet prior to making a turn and would have made a very abrupt movement. If she did, in fact, have the right blinker on for about three (3) seconds, the Court did not find it credible that she did not move at all to the right before changing her mind. 

The Court also noted Kelly’s acknowledgement that she did not observe the vehicle that was travelling behind her, a responsibility that belonged to her. The Court’s impression of Kelly’s testimony and specifically her responses to the statements attributable to her in the police report was that Kelly was making a bold attempt to avoid liability for her actions and was aware of the testimony that would likely shield her from such liability. Notably, following the Court’s inquiry as to her attributed statement in the police report that she side-swiped Crossman’s vehicle, she methodically stated what sounded like a canned response: “I’m going straight; and I’m making a left hand turn and they break the double yellow and side swipe the driver’s side of my car.”

Opatka, on the other hand, testified very consistently about the facts surrounding the collision between the two vehicles. She was in the best position to observe Kelly’s actions and the movement of Kelly’s vehicle. Opatka was also the witness who most likely had the least to benefit by her testimony. In that regard, Opatka testified that Kelly put on her blinker about 5 feet prior to the car wash before completing her turn into the parking lot before pulling back into the road as Opatka was passing by Kelly. Opatka acknowledged that her tires touched, but did not cross the yellow lines. She otherwise confirmed that she was driving particularly cautious as her young child was in the back seat. The Court did not find any inconsistencies in Optaka’s testimony.

But Crossman, Jr., who was sequestered during Opatka’s testimony, was less credible and did not have the same perspective as Optatka, as he was in the back seat with the child. His testimony corroborated that of Opatka, but with an apparent effort akin to Kelly, was fashioned in an effort to preclude any liability on the part of Opatka. One such example was his testimony that Kelly pulled off the road for approximately five (5) seconds before pulling back into the roadway–which the Court believed was a notable exaggeration. He also contradicted himself during his testimony. On his direct, he testified to observing all of the movements of Kelly’s vehicle before the collision and then testified on cross that he did not see Kelly’s vehicle until it was turning into him. Perhaps he was simply nervous, as further examination revealed a more consistent version of what he stated on his direct, though he remained inconsistent about seeing Kelly’s blinker signal. 

Crossman, Jr. additionally testified that Kelly’s car was completely over the white fog line with both sets of tires before returning to the roadway and colliding with their vehicle. While that was essentially consistent with the testimony of Opatka, who testified that Kelly completed her turn, the Court did not believe that Crossman, Jr. had enough opportunity or perspective without being gratuitous in his testimony to confirm the location of the tires of Kelly’s vehicle before the collision.

Keeping in mind the concerns with Kelly’s testimony, the Court found that she was extremely belated in turning on her blinker and that she began to make a right-hand turn to the point of having at least her passenger side tires over the white line and her driver tires very close to the fog line. In that regard, the Court found her car was approximately 90% over the white fog line before she changed course. She then abruptly changed her mind and, without using her mirrors to observe the Crossman’s vehicle behind her and to otherwise ensure that a left hand turn could be made safely, hit her blinker and immediately turned to the left to make what would have been an easier U-turn. With that finding, the Court found that Kelly violated the VT&L, including a failure to properly signal prior to beginning her turn to the right and then her sudden turn to the left; and a failure to use her mirrors to observe Crossman’s vehicle behind her prior to turning back into the roadway.  Her testimony that she was travelling at 25 MPH when the accident occurred further suggested that she was not exercising reasonable caution when attempting to make the turn. 

The Court did not find that Crossman’s vehicle crossed the double yellow line prior to the collision taking place. But the Court did find that Opatka should have exercised additional caution in approaching Kelly’s vehicle, arguably a violation of the V&TL. Because of the finding Kelly abruptly hit her right turn signal and quickly slowed before commencing her turn to the right and moving almost entirely off her lane of travel, the Court did not find Opatka’s actions unreasonable in proceeding past Kelly, so as to avoid a sudden and abrupt stop, especially in light of her child in the back seat. In this regard, Kelly’s vehicle essentially became a sudden obstruction in the road before turning back into the lane. With this, the Court found that there was sufficient evidence upon which to conclude that Kelly failed to use her turn signal in an appropriate and timely fashion and did not observe Crossman’s vehicle which was attempting to pass. And the damage to the vehicles from the collision presented nothing from the Court’s perspective to contradict that finding.

Finding Kelly negligent and at fault in her actions, the Court also found contributory fault by Opatka and was therefore required to decide the percentage of fault attributable to each party. Based upon the facts presented, the Court found Kelly was 80% at fault for her actions, and that Opatka was 20% at fault. The Court further noted that the three (3) estimates provided to repair Crossman’s vehicle ($3,626.26, $3,848.14, and $5,561.87) averaged out to be $4,345.42. However, as two of the estimates were very comparable, the Court, in keeping with its mandate of achieving “substantial justice” in mind, found that a fair cost to repair Crossman’s vehicle was $3,750.00 and that Crossman was entitled to 80% of that cost. There was no evidence of any costs, expenses, or otherwise associated with Crossman’s claim regarding transportation for his medical appointments, so the Court could not even consider any such damages.

For all those reasons, the Court found that Crossman was entitled to judgment against Kelly in the amount 80% of $3,750.00, the amount being $3,000.00.

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