Recently, in Pichardo v. Fernandez, the Supreme Court, New York County denied a motion for summary judgment filed by the New York City Transit Authority (NYCTA) and the driver of a City bus involved in an accident.
Plaintiff was a passenger on a NYCTA bus when it was struck from behind by a car driven and owned by defendants Fernandez and Tordem Equipment Corp., respectively. Plaintiff “testified that the impact occurred when the bus was stopped ‘at an angle’ at the bus stop.”
Defendants NYCTA and Eljamal (the bus driver) argued that they were entitled to summary judgment because “the bus was stopped and rear-ended by Fernandez’s vehicle.” They met their prima facie burden of demonstrating entitlement to summary judgment:
[A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident. … As a corollary, a presumption arises that no negligence on the part of the driver of the lead vehicle contributed to the collision.
In opposition, defendants Fernandez and Tordem argued that summary judgment should be denied because the rear of the bus “protruded into the traveling lane.” Specifically, Fernandez testified that the bus “was slightly on the traveling lanes” and “was sticking out a little bit.”
Plaintiff argued that this accident should not be considered a rear-end collision in light of Fernandez’s testimony “that his truck swiped against the rear side of the bus after ‘[a]bout eighty percent’ of his truck had already passed by the bus.”
The court cited Section 4-08 of the Traffic Rules and Regulations of the Department of Transportation of City of New York (34 RCNY), which provides, in pertinent part:
(e) General no stopping zones (stopping, standing and parking prohibited in specified places). No person shall stop, stand, or park a vehicle in any of the following places, unless otherwise indicated by posted signs, markings or other traffic control devices, or at the direction of a law enforcement officer, or as otherwise provided in this subdivision:
(1) Traffic lanes. In any lane intended for the free movement of vehicles, except a lane immediately adjacent to the curb, unless such lane is designated by signs as a traffic lane, and except as otherwise provided in subdivision (f), paragraph (1) below. In no instance shall a vehicle extend more than 8 feet from the nearest curb.
Case law and the Pattern Jury Instructions (see PJI 2:29) provide that a violation of this section constitutes “some evidence of negligence.”
The court concluded that “Fernandez’s and plaintiff’s testimony raise a triable issue of fact as to whether part of Eljamal’s bus blocked a traveling lane, in violation of 34 RCNY 4-08 (e).”
The bus driver and NYCTA argued, by reference to Sheehan v City of New York (40 NY2d 496 , that the rear-ending driver’s operation of his car was the “sole proximate cause of the accident”, because he “struck a stopped vehicle.” The court disagreed:
Eljamal and the NYCTA’s reliance on Sheehan is misplaced. The position of the bus in Sheehan is different from the position of the bus asserted in this case. In Sheehan, the position of the stopped bus in a traveling lane to discharge passengers was no different than if the bus had lawfully merged into the traveling lane after having pulled away from the bus stop. Thus, it could not be argued that the collision would not have occurred if the bus had not negligently stopped in the traveling lane. Whether the bus in Sheehan was stopped in the traveling lane due to negligent operation or happened to be in the lane due to observance of the traffic laws and rules, the position of the bus vis-à-vis the offending vehicle in either scenario would be the same.
Unlike this case, Sheehan did not involve a stopped bus that protruded into another traveling lane. The alleged position of the bus here, which Fernandez and Tordem Equipment Corp. contend violated 34 RCNY § 4-08 (e), would be different from the position of a bus that observed traffic rules.
Citing Fitzgerald v. NYCTA – in which the First Department upheld the denial of summary judgment to the NYCTA where a car collided with a bus that was “angled so that its rear section protruded into, and obstructed, a lane of moving traffic” – the court denied NYCTA’s and bus driver’s cross motion for summary judgment, since “[q]uestions of fact are raised as to whether the bus was operated in a negligent manner, and if, so whether that negligence was a substantial factor in causing the collision.”