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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
April 1, 1997
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State Liable Where Expert Witnesses Show Curb Was a Hazardous Condition
Characteristics of Drivers Who Carry Passengers in the Back of Pickups
Jury Will Decide If County Roadway Construction and Design Created a "Dangerous Condition"
When Driver Failed to Yield, Downed Stop Sign Not Proximate Cause of Injuries
















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When Driver Failed to Yield, Downed Stop Sign Not Proximate Cause of Injuries

The Supreme Court of Bronx County entered judgment in favor of a motorist who sued the City of New York because of injuries received when his car struck a truck at an intersection where the City had not replaced a downed stop sign. The Supreme Court, Appellate Division reversed, finding the City had no liability for the accident and resulting injuries. The appellate court cited two causes for the accident: (1) the injured driver's misjudgment and failure to yield and (2) the excessive speed of the truck.

The Accident

At about 5:30 p.m. on a dry, sunny September day, Walter Rasby drove westbound into the intersection of East 137th Street and Willow Avenue in the Bronx. Three weeks before that date, a sanitation truck had knocked down the stop sign at the northeast corner of East 137th Street; the City of New York had not yet replaced the sign. Normally that stop sign would have confronted Rasby, requiring him to stop before crossing Willow Avenue.

Rasby testified he was not familiar with the intersection and did not know there had been a stop sign at that corner. He said he looked to the right and saw a RAD Oil Transport Corporation truck approaching southbound on Willow Street; however, he stated the "truck was so far back and I didn't think there was any problem with it." Rasby said he was no longer watching the truck when he accelerated from about 10 or 15 miles per hour to approximately 20 miles per hour and entered the intersection. He hit the truck broadside, just behind the driver's door. According to a witness, the truck was traveling between 40 and 50 miles per hour--which was faster than the posted speed limit.

Nine years before the accident, Rasby lost all vision in his left eye. This condition left him without three-dimensional depth perception.

Trial Court Decision

In Rasby's suit against the City of New York and RAD Oil Transport Corporation, et al., the trial court found the plaintiff free of negligence. Prior to summation, RAD Oil and its driver had settled with the plaintiff for $3 million. Assigning liability at 70 percent for the City and 30 percent for the truck company and its driver, the jury awarded in the amount of $20,658,599.38.

The City moved for a dismissal or, in the alternative, a setting aside of the verdict because the jury's award was excessive and the decision contrary to the weight of evidence. The court responded with a ruling to allow a retrial "on damages unless plaintiff consented to a reduction of the awards for past pain and suffering from $3,000,000 to $1,100,000 and future pain and suffering from $13,000,000 to $3,700,000 . . . ." When Rasby died two months after the court ordered a conditionally reduced award, the reduced award became the amount of the judgment against the City. Although the decision came after the plaintiff's death, the court made the award effective five days before Rasby died.

Appellate Court Decision

When the City appealed the decision, the Supreme Court, Appellate Division reversed. The appellate court found that the downed stop sign did not create an inherently dangerous or confusing intersection. Citing Tomassi v. Town of Union (46 N.Y.2d 91, 98, 412 N.Y.S.2d 842, 385 N.E.2d 581), the court found:

The only proximate or concurring causes of the accident were, as a matter of law, the excessive speed of the RAD truck and plaintiff's misjudgment of when the truck would reach the intersection.

Although the appellate court reversed on a matter of law, they added that they would also have reversed based on the facts. The court's opinion was that the jury's decision to assign no liability to the plaintiff was contrary to the weight of evidence. Rasby saw the truck but accelerated into the intersection instead of yielding right-of-way. McKinney's Vehicle and Traffic Law  1140(b) provides that the driver on the left must yield to the driver on the right when two vehicles enter an intersection at approximately the same time and states:

If the two vehicles are so near the intersecting point that there is a chance of collision if both keep on at their respective speeds, then the vehicle approaching from the left must slow down to a stop to permit the vehicle approaching from the right to proceed.

According to the appellate court, the plaintiff's failure to obey the law and yield to the truck on his right constituted negligence that the jury could not disregard.

Finally, the appellate court determined that the trial court erred and caused prejudice against the City by not instructing the jury according to PJI 2:22, which states:

[A] person laboring under a physical disability must use caution commensurate with the increased hazard caused by such disability.

Referring to Hosmer v. Distler (150 A.D.2d 974, 975, 541 N.Y.S.2d 650), the appellate court judged the trial court should have instructed the jury that the plaintiff had a legal responsibility to drive with sufficient caution to compensate for his known disability.

Given their reversal on a matter of law, the appellate court did not address other issues in the City's appeal. They unanimously reversed the decision against the city, without costs, and dismissed the complaint.

[For further reference, see Sherman v. City of New York and RAD Oil Transport Corp. (A.D. 1 Dept. 1994) from West Publishing Vol. 614 New York Supplement, 2d Series, 412]

Copyright © 1997 by TranSafety, Inc.


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