In Allen v. Rivera, a rear-end collision case, the trial court found that summary judgment was not appropriate as to (1) liability and (2) the “serious injury” threshold. A car driven by Allen, the plaintiff, was struck from behind by a car driven by Rivera.
1. Liability – Rear-End Collision
The court began by stating the general rule applicable in a rear-end collision:
It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence against the operator of the rear vehicle, shifting the burden to that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. … This rule extends to the situation where the lead vehicle was slowing at the time of the collision. … Further, at least one lower Court has held that a rear-end collision, in and of itself, gives rise to a presumption of negligence on the part of the following driver, even when both vehicles are in motion, and neither is stopped or slowing. The rule is generally said to be predicated on the statutory duty of a following driver to maintain a safe speed and distance between his or her vehicle and the vehicle ahead. … In view of this duty, the emergency doctrine is generally unavailable to defendants in a rear-end collision. … In order to defeat summary judgment in the context of a rear-end collision, the operator of the rear vehicle must present proof in admissible form sufficient to rebut the inference of negligence. The Second Department has expressly stated that “[o]ne of several non-negligent explanations for a rear-end collision is a sudden stop of the lead vehicle.”
The court then discussed two divergent lines of cases applying this rule:
[The first] line of cases holds that a sudden stop is insufficient to rebut the presumption of negligence, in view of the rear driver’s statutory duty to maintain a safe speed and distance from the vehicle ahead. … In these cases, a sudden stop by the lead driver does not mitigate the rear driver’s negligence, even in bad weather or slippery road conditions, unless the rear driver provides a non-negligent explanation – not for the collision, but for the failure to maintain a safe distance from the vehicle in front. ….
[The second] line of cases holds that a sudden stop is sufficient. Close examination of these cases, however, suggests that additional factors may also be present which support an inference of negligence on the part of the lead driver. These include the lead driver’s failure to signal …, the lead driver’s unexplained stop in moving traffic …, or the lead driver’s sudden lane change before the stop. … These cases do not consistently state whether a showing of negligence on the part of the lead driver rebuts the inference of negligence on the part of the rear driver, or only the inference that such negligence was the sole proximate cause of the accident. In any event, the question of liability is preserved for the jury.
Applying the law to the facts, the court denied plaintiff’s motion for summary judgment, focusing on the factual dispute as to whether plaintiff failed to use her turn signal:
[Defendant]’s opposition rests on the proposition that plaintiff stopped suddenly in front of him, and that, as a result, he could not avoid the accident. Under the [first] line of cases, cited above, this is not sufficient to rebut the presumption that [defendant] was negligent. [Defendant] does not provide any explanation for why he was not following at a safe speed and distance; i.e., one that would have allowed him to stop in time to avoid the collision. [Defendant] testifies that he was driving at a distance of six feet behind plaintiff’s vehicle and a speed of 20-25 mph, but there is no evidence demonstrating that such speed and distance was imperative or reasonable under the existing circumstances. The Court takes judicial notice of the Speed/Distance Conversion Table contained in the Bench Book for Trial Judges …, which shows that a motor vehicle traveling at 20 mph is moving at a speed of 29 feet per second. Thus, if anything, [defendant]’s testimony that he was only six feet behind plaintiff’s vehicle weakens his rebuttal of negligence.
[Defendant] also testifies, however, that plaintiff failed to use her turn signal, which violates Vehicle & Traffic Law 1163. Under the [second] line of cases, cited above, this additional factor – some evidence of negligence on the part of plaintiff – is sufficient to defeat summary judgment. In such circumstances, the two lines of case law are not inconsistent. Even if [defendant]’s testimony, taken as a whole, is insufficient to rebut the presumption of negligence on his part, it nonetheless raises the question of comparative fault. Where plaintiff’s freedom from negligence is not established as a matter of law, summary judgment is not warranted. … Here, an issue of fact has been raised that is central to the question of comparative fault; that is, whether or not plaintiff failed to use her turn signal. The determination of that question will likely turn on the credibility of the witnesses. Accordingly, summary judgment on liability is properly denied.
2. “Serious Injury”
Defendant moved for summary judgment on the ground that plaintiff failed to demonstrate a “serious injury” within the meaning of Insurance Law 5102(d). The court held that defendants failed to meet their burden, and thus denied their motion.
The court focused its analysis on whether plaintiff’s injuries fell into any of the following “serious injury” categories: (1) a permanent consequential limitation of use of a body organ or member, (2) a significant limitation of use of a body function or system, or (3) a medically determined injury which prevented her from performing all of the material acts constituting her usual and customary daily activities for ninety days of the first one hundred eighty days following the accident. Defendants failed to establish, as they were required to do on summary judgment, that plaintiff did not suffer from a serious injury as a matter of law.
While defendant’s orthopedist “found normal range of motion in plaintiff’s cervical and thoracic/lumbosacral spines, [he] noted significant limitations in range of motion in plaintiff’s shoulder”. In particular, he “made the following range of motion findings with respect to plaintiff’ shoulder: ‘130 degrees of anterior flexion (normal 160 degrees), 120 degrees of abduction (normal 160 degrees), slight loss of internal rotation (normal 90 degrees)’”, “diagnosed ‘cervical and thoracolumbosacral sprain, derangement of the right shoulder and multiple herniated discs [of the] cervical spine and pre-existing spondylolysis by report’”, and “concluded that ‘based on the history and records reviewed, the sprain/strain of the neck and back and right shoulder derangement are causally related to the accident’”. However, he also “seemingly opined that the range of motion deficits found in plaintiff’s shoulder, were caused by a prior accident”.
The court found that his “conclusions that plaintiff ‘has residual orthopedic findings relative to her right shoulder and no residuals relative to her neck and back’ and that ‘there were pre-existing changes in the diagnostic reports of her neck, back and shoulder’ [were] insufficient explanations for the deficits in range of motion noted in plaintiff’s shoulder.” He “failed to provide competent medical evidence to support such assertion of lack of causation.” It held that “[a] preexisting condition does not foreclose a finding that the injuries were causally related to the accident” and noted that defendants failed “to submit competent medical evidence to support counsel’s assertion that MRIs taken in 2005 and 2010 reveal that the injuries plaintiff sustained in the 2010 Accident have been ongoing and unresolved since the 2005 motor vehicle accident.”
In addition, defendants’ neurologist “noted that deficits in several range of motion measurements of plaintiff’s cervical and lumbar spines, and shoulders were a result of ‘voluntary restricted excursions’ and that ‘incidental movements [of these areas] revealed [l]argely normal range[s] of motion.” However, the court found that he “failed to support with objective medical evidence the basis for his conclusion that the restrictions he observed were voluntary” and noted that his “opinion that incidental movements were ‘largely’ normal is entirely conclusory.” Rather, “the evidence submitted, including reports by [the orthopedist], plaintiff’s deposition testimony and prior medical records ‘actually demonstrate[e] the existence of a triable issue of fact as to causation.’”