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Tomassi v. Town of Union

46 N.Y.2d 91 Court N.Y. Decision date 1978-12-07 English

Delivered by Cooke, J.

Contents

Majority

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Ettore Tomassi et al., Respondents, v Town of Union, Appellant. Ettore Tomassi et al., Respondents, v Louis Forbidussi et al., Appellants. Robert Corwin et al., Respondents, v Margaret Tanzini et al., Appellants. Robert Corwin et al., Respondents, v Louis Forbidussi, Appellant. Louis Forbidussi et al., Plaintiffs, v Margaret Tanzini et al., Defendants.
Argued October 24, 1978;
decided December 7, 1978.
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POINTS OF COUNSEL
Thomas F. O’Connor for Louis Forbidussi, appellant.
I. If this court determines that there was reversible error against one defendant, all defendants are entitled to a new trial. (Dole v Dow Chem. Co., 30 NY2d 143 ; Ward v Iroquois Gas Corp., 258 NY 124 ; Stein v Whitehead, 40 AD2d 89 ; Estate of Canale
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v Binghamton Amusement Co., 45 AD2d 424 , 37 NY2d 875 .) II. The court erred in denying counsel for defendant-appellant Forbidussi the right to make opening and closing statements. (Vidal v Sheffield Farms Co., 208 Misc 438 ; Gibbs v Sokol, 216 App Div 260 ; Tisdale v President, Managers & Co. of D. & H. Canal Co., 116 NY 416 ; Zemliansky v United Parcel Serv., 175 Misc 829 ; Lyman v Fidelity & Cas. Co., 65 App Div 27 ; Shea v Benjamin, 275 App Div 1003 ; Denton v Koshfer, 201 Misc 394 ; Martin v Marshall, 25 AD2d 594 .) III. The court erred in denying a request to charge that a driver was entitled to assume that another driver would drive on the right-hand side of the road. (Ward v Clark, 232 NY 195 ; Walter v State of New York, 187 Misc 1034 ; Lee v City Brewing Corp., 279 NY 380 ; Crombie v O’Brien, 178 App Div 807 ; McDonald v Central School Dist. No. 3, 179 Misc 333 , 264 App Div 943 , 289 NY 800 .)
David M. Gouldin for Margaret Tanzini and another, appellants.
I. It was reversible error to permit the prejudicial, speculative testimony of Dr. Barron regarding possible future regression of plaintiff Corwin’s back injury. (MCGrath v Irving, 24 AD2d 236 ; Mamarella v Consolidated Edison Co. of N. Y., 44 AD2d 571 .) II. The comments by counsel for Tomassi which invited speculation, and the references by counsel for Corwin to newspaper articles and thinly veiled unit of time arguments were improper and prejudicial as evidenced by the grossly excessive verdicts rendered. (Paley v Brust, 21 AD2d 758 ; Jacobs v Peress, 24 AD2d 746 .) III. Since the advent of proportionate liability, the rights and responsibilities of joint tort-feasors have been so inextricably intertwined that a new trial for one warrants a new trial for all. (Dole v Dow Chem Co., 30 NY2d 143 .)
Brian R. Wright for Town of Union, appellant.
I. As a matter of law the record demonstrates no substantial evidence to support the jury verdict of negligence against the Town of Union. (Ellis v State of New York, 12 NY2d 770 ; Kinne v State of New York, 8 AD2d 903 , 8 NY2d 1068 ; Proctor v Town of Colonie, 8 NY2d 952 ; Shaffer v Coleman, 37 AD2d 646 ; Gleich v Volpe, 32 NY2d 517 ; Weiss v Fote, 7 NY2d 579 ; Schoonmaker v State of New York, 32 AD2d 1005 ; Kaufman v State of New York, 27 AD2d 587 ; Warda v State of New York, 45 Misc 2d 385 ; Jacobs v State of New York, 276 App Div 452 ; McCauley v State of New York, 23 Misc 2d 925 , 9 AD2d 488 , 8 NY2d 938 ; Lane v Town of Hancock, 142 NY 510 ; Hubbell v
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State of New York, 104 NY 434 .) II. As a matter of law, the sole proximate cause of the accident was the inattention of the two drivers. (Murray v State of New York, 38 NY2d 782 ; Stuart-Bullock v State of New York, 38 AD2d 626 , 33 NY2d 418 ; Agius v State of New York, 50 AD2d 1049 ; Ellis v State of New York, 16 AD2d 727 , 12 NY2d 770 ; Kinne v State of New York, 8 AD2d 903 , 8 NY2d 1068 ; Bezio v County of Clinton, 6 AD2d 963 ; Goes v State of New York, 46 AD2d 697 ; Darling v State of New York, 16 NY2d 907 ; Cole v New York Racing Assn., 24 AD2d 993 , 17 NY2d 761 ; Bolm v Triumph Corp., 33 NY2d 151 ; Spier v Barker, 35 NY2d 444 .) III. As pointed out by the dissenting opinion of two of the Justices of the court below, Third Department, the Town of Union is entitled to a new trial based upon the prejudicial effect of evidence of a prior irrelevant accident. (Annino v City of Utica, 276 NY 192 ; Kaplan v City of New York, 6 AD2d 489 ; Jasinski v New York Cent. R. R., 21 AD2d 456 ; Flansburg v Town of Elbridge, 205 NY 423 ; Cross v Cross, 108 NY 628 ; Tryon v Willbank, 234 App Div 335 .)
Remo A. Allio and Harold Boreanez for Robert Corwin and another, respondents.
I. The facts found by the jury with respect to the negligence of defendants (Forbidussi, Tanzini and the Town of Union) were supported by the weight of the evidence and the apportionment of liability was proper. II. The Town of Union was properly held liable for a portion of the damages. (Weiss v Fote, 7 NY2d 579 ; Annino v City of Utica, 276 NY 192 ; Schoonmaker v State of New York, 32 AD2d 1005 ; Kaufman v State of New York, 27 AD2d 587 ; Gleich v Volpe, 32 NY2d 517 ; Pratt v Robinson, 45 AD2d 641 ; Ellis v State of New York, 12 NY2d 770 ; Kinne v State of New York, 8 NY2d 1068 ; Hulett v State of New York, 4 AD2d 806 ; Zalewski v State of New York, 53 AD2d 781 .) III. There was no error in admitting evidence as to the prior accident. (Nappi v Falcon Truck Renting Corp., 286 App Div 123 , 1 NY2d 750 ; People v Miller, 50 AD2d 757 ; People ex rel. Packwood v Riley, 232 NY 283 ; People v Barberi, 149 NY 256 ; People v Crimmins, 36 NY2d 230 ; People v Kingston, 8 NY2d 384 ; Evans v Newark-Wayne Community Hosp., 35 AD2d 1071 .) IV. The testimony of Dr. Barron was based on reasonable medical certainty. (McGrath v Irving, 24 AD2d 236 .) V. Plaintiff Corwin’s summation was proper and defendant’s objections were not timely. (Bagully v Morning Jounal Assn., 38 App Div 522 ; Nelson v Forty-Second St., Manhattenville & St. Nicholas Ave.
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Ry. Co., 55 Misc 373 ; Cattano v Metropolitan St. Ry. Co., 173 NY 565 ; Rice v Ninacs, 34 AD2d 388 ; Carroll v Roman Catholic Diocese of Rockville Centre, 26 AD2d 552 , 19 NY2d 658 ; Jacobs v Peress, 24 AD2d 746 ; Paley v Brust, 21 AD2d 758 ; Bischert v Limousine Rental Serv., 33 AD2d 355 .) VI. There was no error in the refusal of the trial court to allow counsel for defendant Forbidussi to make opening and closing arguments. (People v Cook, 8 NY 67 ; Martin v Marshall, 25 AD2d 594 .) VII. There was no error in the refusal to charge that a motorist was entitled to assume that another driver would drive on the right-hand side of the road. (Wallace v D'Aprile, 221 App Div 402 ; Blixton v MacNary, 23 AD2d 573 ; Moses v Bliss, 252 App Div 909 .)
Vincent P. Vetrano for Ettore Tomassi and another, respondents. I.
The jury verdict of negligence against the Town of Union was supported by substantial evidence. (Lue v English, 44 NY2d 654 ; Russell v State of New York, 268 App Div 585 ; Brown v State of New York, 284 App Div 1014 ; Ellis v State of New York, 16 AD2d 727 , 12 NY2d 770 ; Kinne v State of New York, 8 AD2d 903 , 8 NY2d 1068 ; Shaffer v Coleman, 37 AD2d 646 ; Proctor v Town of Colonie, 8 NY2d 952 ; Weiss v Fote, 7 NY2d 579 ; Zalewski v State of New York, 53 AD2d 781 ; Stern v International Ry. Co., 220 NY 284 ; Collett v Mayor, City of N. Y., 51 App Div 394 .) II. The jury verdict that the accident and the injuries were caused by the concurrent negligence of all three defendants was supported by the evidence. (Agius v State of New York, 50 AD2d 1049 ; Stuart-Bullock v State of New York, 38 AD2d 626 , 33 NY2d 418 ; Boyce Motor Lines v State of New York, 280 App Div 693 ; Murray v State of New York, 38 NY2d 782 ; Lyle v State of New York, 44 AD2d 239 ; Tortora v State of New York, 269 NY 167 ; Bolm v Triumph Corp., 33 NY2d 151 .) III. There was no prejudicial error to the Town of Union in admitting evidence of the prior accident. IV. There was no error in the refusal of the trial court to allow counsel for defendant-appellant Forbidussi to make opening and closing arguments. (People v Cook, 8 NY 67 ; Martin v Marshall, 25 AD2d 594 , 18 NY2d 579 .) V. There was no error in the refusal to charge that a motorist was entitled to assume that another driver would drive on the right-hand side of the road. (Wallace v D'Aprile, 221 App Div 402 ; Blixton v Mac-Nary, 23 AD2d 573 ; Moses v Bliss, 252 App Div 909 ; Patenaude v Fortin, 4 AD2d 410 .) VI. Comments on summation by plaintiffs’ counsel were not improper or prejudicial. (Carroll v
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Roman Catholic Diocese of Rockville Center, 26 AD2d 552 , 19 NY2d 658 .) VII. If this court finds reversible error as to one defendant, the other defendants are not entitled to a new trial on all of the issues. (Gannon Personnel Agency v City of New York, 57 AD2d 538 .)

OPINION OF THE COURT

Buffalo Street is a lightly traveled, east-west, two-lane roadway traversing a sparsely populated section of the Town of Union in Broome County. The macadam pavement is approximately 22 feet wide, with a shallow storm-water drainage ditch flanking both sides. On its southerly side, a driveway, built over a 15-inch sluice pipe in the drainage ditch, connects Buffalo Street with the Serowik home. The Serowiks had erected a stone wall and earthen embankment immediately adjacent to the drainage ditch and sluice pipe. An attractive flower garden adorned the embankment.

On the afternoon of September 24, 1972, the flowers were in bloom. It had rained earlier in the day but visibility was good although the roadway was wet. An automobile, owned by Alfred Tanzini and driven by his wife, was proceeding in a Westerly direction along Buffalo Street. By her own admission, Mrs. Tanzini was not paying careful attention to her driving. She had just realized that she had driven past an intersecting road leading to her destination when her attention was drawn and affixed to the flower bed on the Serowik property. At the same time, an automobile owned and driven by Louis Forbidussi with passengers Ettore Tomassi and Robert Corwin was proceeding easterly on Buffalo Street at what was, according to one witness, an excessive rate of speed. By the time Mrs. Tanzini saw the approaching vehicle there was little she could do to avoid the impending collision. Forbidussi, too, took no defensive steps until impact was unavoidable, although he had the Tanzini vehicle in sight within ample time to avoid the accident. The impact from the resulting collision in the eastbound lane of the roadway forced the Forbidussi vehicle into the ditch where it hit the right bank. From there the car struck the stone wall adjacent to the ditch, careened into the sluice pipe and came to rest against the driveway and pipe.

A jury found in favor of plaintiffs Tomassi and Corwin, apportioning 50% of the liability against Tanzini, 25% against Forbidussi and 25% against the Town of Union. The single

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issue we address on this appeal is whether the town may be held to answer in damages for permitting the ditch to exist on the sides of Buffalo Street. The theory of plaintiffs’ case against the town is that the construction of the ditch in such close proximity to the pavement constituted a hazard to motorists which was the cause of their injuries. Viewing the evidence, as we must, in a light most favorable to plaintiffs (Commisso v Meeker, 8 NY2d 109 ), we hold that there are no grounds upon which the liability of the town may be properly predicated.

A municipality, of course, is not an insurer of the safety of its roadways. The design, construction and maintenance of public highways is entrusted to the sound discretion of municipal authorities and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied (Annino v City of Utica, 276 NY 192 , 196; Boyce Motor Lines v State of New York, 280 App Div 693 , 696, affd 306 NY 801 ). The liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria (see, generally, Liability of Governmental Entity or Public Officer for Personal Injury or Damages Arising out of Vehicular Accident Due to Negligent or Defective Design of a Highway, Ann., 45 ALR3d 875 , and cases cited therein; cf. Weiss v Fote, 7 NY2d 579 ).

Undoubtedly, certain risks are unavoidable. Especially in rural locales, such objects as utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way (see Hayes v Malkan, 26 NY2d 295 , 297). But for the careful driver, the placement of these items near the pavement creates no unreasonable danger. Often they simply enhance the beauty of the highway, prevent the flooding of roadways and serve the needs of area residents. This paved roadway, 22 feet in width, is more than adequate for safe public passage, and travel beyond those limits is neither contemplated nor foreseeable (Kinne v State of New York, 8 AD2d 903 , affd 8 NY2d 1068 ; Proctor v Town of Colonie, 6 AD2d 967 , affd 8 NY2d 952 ). To be sure, any public roadway, no matter how careful its design and construction, can be made safer. Indeed, plaintiffs’ expert witness testified that the town should have posted signs warning motorists of

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the drainage ditch, painted center lines on the roadway and eliminated the ditch by installing shoulders. We decline, however, to impose a duty upon the town which transcends that imposed by reasonable care and foresight — resulting in conversion of the town into an insurer of the safety of its highways.

Moreover, the steps the town could have taken to safeguard against unforeseeable risks have no bearing on the question of its liability to these plaintiffs. Quite simply, even if it can be said that the Town of Union was negligent in the design, construction or maintenance of Buffalo Street, the record is devoid of any evidence establishing that such negligence was the proximate or concurring cause of the accident. On the contrary, the evidence most favorable to plaintiffs’ theory of liability compels the conclusion that the sole cause of the accident was the negligence of Forbidussi and Tanzini, which the prevailing weather and visibility conditions at the time of the accident served but to enhance. Had either driver been cognizant of approaching traffic or have taken even minimal action to avoid the collision there would have been no accident. Neither would the adoption of the recommendations of plaintiffs’ expert witness serve any useful purpose since it is clear beyond peradventure that the accident was caused by the failure of Forbidussi and Tanzini to observe the rules of the road (Hicks v State of New York, 4 NY2d 1 , 7-8; Applebee v State of New York, 308 NY 502 , 507-508; Ellis v State of New York, 16 AD2d 727 , affd 12 NY2d 770 ; Kinne v State of New York, 8 AD2d 903 , affd 8 NY2d 1068 , supra; Proctor v Town of Colonie, 6 AD2d 967 , affd 8 NY2d 952 , supra). In sum, there is nothing in this record to warrant a conclusion that reasonable care required the town, at the pain of civil liability, to provide more safeguards to prevent motor vehicles leaving the roadway than it had done.

Accordingly, the orders of the Appellate Division should be modified, with costs to defendant Town of Union in all courts against plaintiffs and with costs to plaintiffs in this court only as to the other defendants, by dismissing the complaints against defendant Town of Union and remitting the case to Supreme Court, Broome County, for reapportionment of liability and, as so modified, affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

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Orders modified, with costs to defendant Town of Union in all courts against plaintiffs and with costs to plaintiffs in this court only as to the other defendants, by dismissing the complaints against defendant Town of Union and remitting the case to Supreme Court, Broome County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

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