Defendants’ Alleged Negligence was Not a Proximate Cause of the Accident
In Gregory v. Cavarello, (4th Dept. 2017) a case in which Chelus, Herdzik, Speyer & Monte, P.C. represents defendant Steven Cavarello, the Fourth Department dismissed the case as against defendants National Fuel Gas Distribution Corporation, Municipal Pipe Company and the City of Buffalo.
Plaintiff, Sarah Gregory, was struck by a vehicle operated by Cavarello as she attempted to cross the street. The City-owned street was undergoing a construction project on the opposite side and multiple blocks away from the accident site. As Cavarello approached the area where plaintiff was attempting to cross, the vehicle immediately in front of him abruptly turned on his turn signal and made a left-hand turn. In order to avoid a rear-end collision, Cavarello swerved to the right into the parking lane thereby striking the plaintiff.
Plaintiffs alleged that National Fuel, Municipal Pipe and the City of Buffalo, were negligent in failing to provide proper temporary traffic control devices. These defendants moved for summary judgment successfully arguing that they were not a proximate cause of the accident. The trial court held that the accident occurred within a “work zone” and denied the defendants’ motions for summary judgment.
The Fourth Department held that the defendants met their initial burden of proof by means of Cavarello’s deposition transcript, his sworn statement to police and the accident scene photographs. Cavarello testified at his deposition that had the vehicle in front of him not made a sudden left-hand turn he would have had no difficulty proceeding in his own lane of travel.
Although plaintiffs argued that the temporary traffic control devices were inadequate, the Appellate Division held that even if that were the case, such negligence was not a proximate cause of the accident. “A showing of negligence is not enough; there must also be proof that the negligence was a proximate cause of the event that produced the harm.”
Therefore, the Fourth Department rejected plaintiffs’ argument and held that the construction work “merely furnished the condition or occasion for plaintiff being struck by a vehicle while crossing the street and was not a proximate cause of the accident.” The Fourth Department also found plaintiffs’ expert’s conclusions and opinions speculative. The order of the Supreme Court was reversed and the amended complaint was dismissed against the moving defendants.
If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.
Prepared by Nicholas Hriczko, Esq.