Opinion
# 2014-049-104 Claim No. 122357
10-01-2014
VEANNA COSHBURN v. THE STATE OF NEW YORK
Manoussos & Company, PLLC By: Michael Manoussos, Esq. Eric T. Schneiderman, New York State Attorney General By: John M. Hunter, Assistant Attorney General
Synopsis
Following a trial on the issue of negligence in a claim for injuries sustained by a pedestrian who was struck by a state vehicle, the Court found the State fifty per cent at fault, and claimant fifty per cent at fault.
Case information
| UID: | 2014-049-104 |
| Claimant(s): | VEANNA COSHBURN |
| Claimant short name: | COSHBURN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122357 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Manoussos & Company, PLLC By: Michael Manoussos, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: John M. Hunter, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 1, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By claim filed February 6, 2013, claimant Veanna Coshburn alleged that on November 16, 2012, she was struck by a State Police vehicle driven by Louis A. Munoz, on Broadway "at or near its intersection with Verveleen Place (located between West 231st Street and Kimberly Place)" in the Bronx (Claim ¶ 3).
A trial was conducted regarding the claim on April 21, 2014, addressing only the question of fault - that is, the question of the State's culpability for the accident, and any contributory negligence on claimant's part.
The parties agreed that the trial would not address the issue of whether claimant had suffered a serious injury pursuant to Insurance Law § 5102, which matter has been left for any trial on damages that may take place.
Coshburn presented her own testimony in support of her claim, and various documentary exhibits, including the relevant police reports. She testified that on November 16, 2012 at about 3:15 pm, she exited the Foodtown supermarket located south of West 231st Street, bearing two bags of groceries (Tr. 14, 19). In front of her were two lanes of traffic on Broadway - with one going north, and the other south, with a parking lane on each side (Tr. 15-16). Pillars are situated at intervals along the parking lane, holding up an elevated train track (Tr. 16-17). Just south of the Foodtown entrance is Verveleen Place, a road that ends in a T-intersection at the opposite (east) side of Broadway (Tr. 20). There is a traffic light at West 231st Street (Tr. 19), to the north of Foodtown, and another at Kimberly Place, south of Verveleen (Tr. 34, 112).
Coshburn mistakenly referred to Kimberly as "Waverly Place" (Tr. 34).
Coshburn stated that she crossed Broadway directly opposite from Verveleen. Before crossing, she saw the West 231st Street traffic light, situated about fifty feet to her left, turn red (Tr. 20-21). The light to her right was "in the midst of turning red" (Tr. 20-22), when she stepped off the curb.
According to Coshburn, she saw a southbound automobile to her left prior to the accident, which she described as an "SUV-type of vehicle." It had already gone through the light at West 231st Street, and was stopped, with the driver looking down at the dashboard (Tr. 27, 37). When he looked up, Coshburn said she believed they had established eye contact, and she raised her right hand in a gesture of thanks (Tr. 28). She estimated that the car was between 15 and 30 feet away from her at the time (Tr. 88-89).
Coshburn acknowledged that there was no traffic control device or crosswalk at the place she crossed (Tr. 34). She asserted, however, that the spot where she entered the road was directly across from the T-intersection formed by Broadway and Verveleen. Verveleen, however, was south of Foodtown, while her destination was a Walgreens, located to the north, closer to West 231st Street (see Tr. 65; Def. Exs. D, H).
After Coshburn had taken several steps, she was hit on the left side by a vehicle, causing her to fall (Tr. 23-26). At trial she believed the distance she had traversed into the road was between 15 and 30 feet (Tr. 88-89). The photographic evidence and testimony makes clear that once Coshburn stepped off the curb, she would not immediately have reached the ongoing traffic. Rather, her first several steps would cover the area of the street on which stand the aforementioned pillars (see e.g. Def. Ex. I).
She variously estimated the number of steps at two, four or five (see Tr. 23, Tr. 88-89, Dep. 25). Munoz testified, based on measurements he made two weeks before trial, that it took seven steps for him to go from the pillar to the traffic lane (see Tr. 137).
On cross-examination, Coshburn said that she maintained eye contact with the driver of the vehicle until the moment he hit her (Tr. 90-91). She also stated, however, that she did not see the car when the collision took place (Tr. 95). She testified that after the accident, the driver came up to her and said that he was sorry, and that the sun had been in his eyes and he had not seen her (Tr. 31).
Defendant's counsel questioned claimant as to how she had come to walk to her right to cross at Verveleen, rather than crossing Broadway directly from Foodtown. Coshburn initially stated that there had been a car parked directly in front of the supermarket, and she had to walk around it to get to the pillar on which she leaned prior to crossing (Tr. 61, 86-87). Later, she said that there were two cars that she had to walk around (Tr. 71). At her earlier deposition, however, Coshburn stated that she walked straight from Foodtown to the curb, and made no mention at all of taking a detour south to cross at Verveleen (Coshburn Dep. 37-38; Tr. 74-75).
The State presented the testimony of Munoz. On the day of the accident, he was employed as an investigator with the New York State Police, and was driving southbound on Broadway in the right lane. He had been proceeding in that direction for about seven blocks (Tr. 117, 140). His car (a Jeep Laredo) was part of a group of seven State Police vehicles traveling together, and engaged in surveillance work (Tr. 113). Munoz was alone in his car, and was following another police vehicle traveling directly in front of him (Tr. 163). The day was clear, and his windshield was not tinted (Tr. 116). Vehicular traffic was "stop and go," and after he crossed West 231st Street, pedestrian traffic on the road's shoulder became heavy as well (Tr. 141).
Munoz described the accident as follows: He had stopped in the middle of the road due to traffic. When he saw the car in front of him advance, he took his foot off the brake, and his vehicle moved forward at about five miles per hour (Tr. 131, 161). He saw a person enter the road in front of his car from the right. After his automobile traveled "a foot or two" from its stationary position, the right front corner of his car collided with the pedestrian, and she fell (Tr. 132, 138; Munoz Dep. 38). He immediately applied his brakes, backed up a couple of feet, and exited the vehicle (Tr. 132). He acknowledged that he did not sound his horn (Tr. 155).
The witness said he did not see Coshburn until a few seconds before impact, when she was at least ten feet away (Tr. 158). As he was driving, he did see a significant number of individuals walking on the shoulder of the roadway itself, in between his car and various parked vehicles (Tr. 160). Until the accident, though, he did not witness anyone cross in front of him (Tr. 162).
Munoz denied making eye contact with or looking at Coshburn, and he said he never told her that the sun had been in his eyes, or that he had not seen her (Tr. 135). As to whether he apologized to her - that he did not recall (Tr. 171). The only conversation he remembered taking place between himself and the claimant was an inquiry on his part as to whether she was okay (id.).
Through Munoz' testimony, the State introduced the results of various measurements of the accident scene he performed two weeks before trial (Tr. 117). According to those measurements, the accident took place about 140 to 150 feet south of West 231st Street, north of Verveleen (id.). This was at odds with statements made by Munoz in a State Police report regarding the accident, which placed the incident at "approximately 200 feet" below West 231st Street (see Cl. Ex. 1; Tr. 170). The next traffic light, at Kimberly Place, was 316 feet away (Tr. 138). Although Munoz had not measured the distance from West 231st Street to Verveleen, he estimated that it was about 190 feet (Tr. 170).
DiscussionI. Factual Issues
Before fault can be assessed, I must resolve certain factual disputes. While I have no reason to doubt that both witnesses sought to testify truthfully and accurately, their respective accounts of the events 17 months before were often at odds with each other, and with their earlier statements. In particular, there was divergent testimony regarding the precise location of the accident; and whether Coshburn signaled to and made eye contact with Munoz prior to the collision.
The witnesses' accounts also diverged in regard to whether Munoz apologized to Coshburn (see Tr. 31, 172). Since the alleged apology attributed the accident to the sun, and not to any negligence on his part, I do not see this question as having much relevance to the matter before me. I conclude, though, based on the specificity of Coshburn's testimony, and Munoz' lack of recollection as to whether this occurred, that it is more likely than not that Munoz offered an apology.
As to the first issue, Coshburn testified that she crossed Broadway from a spot on the west side of the street opposite Verveleen, while defendant testified that she crossed about fifty feet to the north. This dispute is potentially material, since it is claimant's position that although no crosswalk was marked at Verveleen, given that there was a T-intersection at that spot, it was the equivalent of a crosswalk for the purpose of determining who had the right of way.
New York law recognizes the principle that a crosswalk may exist for legal purposes, even if it is "unmarked" (see VTL § 1151[c]), and caselaw has found such "unmarked" crosswalks to be created by "T" intersections, such as the one at the corner of Broadway and Verveleen (see Alli v Lucas, 72 AD3d 955 [2d Dept 2010]; Fan v Buzzita, 42 AD2d 40 [2d Dept 1973]).
Unfortunately, although the parties introduced numerous photographs, neither those pictures nor the testimony at trial makes clear what location on the east side of the road is directly across from the Foodtown entrance, if a party were to cross the street in a straight line. I therefore take judicial notice that a review of Google Streetview indicates that a beeline from the Foodtown entrance across Broadway would place a pedestrian approximately at the doorway to the small Bronx Jewelry & Antiques shop depicted on Defendant's Exhibit F, with the Ponce de Leon Federal Bank standing between that party and Verveleen. In short, if Coshburn crossed Broadway directly from Foodtown, she would have been to the north of Verveleen; if she first proceeded to the right for a distance equal to the length of the bank, then she would have faced Verveleen while crossing.
Courts "commonly use internet mapping tools to take judicial notice of distance and geography" (see Lovelace v RPM Ecosystems Ithaca, LLC, 42 Misc 3d 1235[A] [Sup Ct, Tompkins Cty 2014] [citing numerous cases]). In any event, while the panoramic view available via Streetview is helpful in setting the geographic context, I do not rely on it for the factual conclusion that Coshburn crossed north of Verveleen. Coshburn made clear in her testimony that crossing directly from Foodtown would not have placed her at the Verveleen intersection. Rather, she had to go two car lengths to the right first (Tr. 71).
Upon review of the evidence, I cannot credit Coshburn's account that the accident took place directly across Broadway from the Verveleen intersection, rather than just to the north. Before crossing Broadway, Coshburn had exited Foodtown and was proceeding across to Walgreens, which is to her left, or north. The record reveals no apparent reason why she would walk out of her way to the south, to cross at a point (the Verveleen intersection) where there was no traffic signal or crosswalk, and then proceed in the opposite direction, northward towards Walgreens. If she was concerned to access a crosswalk, there was one at West 231st Street, close to the Walgreens. Further, as noted above, at her deposition she testified that she proceeded straight across the street from Foodtown, and made no reference to walking towards Verveleen at all (Coshburn Dep. 37-38; Tr. 74-75). If, as she said at trial, she needed to walk around a car or two, going by them on the left would have placed her closer to her destination. Finally, Munoz' own testimony contradicts this assertion, and I find it to be detailed and credible in this regard.
Defendant's Exhibit I shows that there was a pillar directly in front of Foodtown, but it would have taken claimant out of her way only a few feet to the north or south to get around it.
In her post-trial brief, claimant argues that the evidence supports Coshburn's trial account of a crossing at Verveleen, relying heavily on Munoz' statement in the Police post-accident report that the accident took place about 200 feet south of West 231st Street (see Cl. Ex. 1). Claimant reasons that, since Munoz estimated that the distance between West 231st and Verveleen was 190 feet in his trial testimony, the measurements referenced in his after-accident report placed Coshburn at Verveleen (see Tr. 170; Cl. Br. 1-4).
I do not find this argument convincing. Munoz testified repeatedly and consistently at deposition and trial that the accident took place north of Verveleen. That testimony is consistent with Coshburn's own statements at her deposition as to how she proceeded to the curb, and she gives no coherent explanation in the record as to why she would have chosen the roundabout route of going south before going back north. In essence, claimant would have the Court set aside such evidence on the basis of two ballpark estimates made by the driver, and to extract from these an implied confession by Munoz about the location of the accident that is at odds with his own testimony. I decline to draw such an implication, and find that the accident occurred north of the Verveleen intersection.
In regard to the second contradiction in the testimony- concerning whether the parties to the accident made eye contact beforehand - Coshburn testified that before the accident she looked up, saw the driver, and made a hand motion, while Munoz denies that this occurred. Here, too, Coshburn's trial testimony was not entirely consistent. In particular, she stated at one point that she maintained eye contact with the driver until he hit her, and at another that she did not see the car until the collision (see supra p. 3). At her deposition, she said twice that she "thought" she had made eye contact with the driver (Coshburn Dep. 45, 47). Given that she was crossing a crowded street in the middle thereof, I conclude that the most likely scenario is that the claimant sought to make some kind of signal to the driver as she entered the road. I conclude, though, that Munoz never saw such a signal. In addition I do not fully credit Coshburn's account due to the inconsistencies in her testimony, and because accepting that account in full would require me to conclude that Munoz looked directly at claimant as she crossed the road, and nonetheless proceeded forward, although the collision that would result was obvious.
I note that Coshburn had grocery bags in her hands at the time, which she does not mention in her statement that she raised her hand to thank him. Also, if her testimony is to be credited, Munoz later told her that the sun was in his eyes, which seems inconsistent with her assertion that they made eye contact and maintained it until the accident occurred.
With these conclusions in mind, I proceed to apply the relevant legal standards.
II. Negligence and Causation
A driver has a statutory duty to "exercise due care to avoid colliding with any . . . pedestrian . . . upon any roadway and shall give warning by sounding the horn when necessary" (Vehicle and Traffic Law ["VTL"] § 1146). As to the pedestrian, so long as she is in a crosswalk, she has the right of way (VTL § 1151[a]). Under VTL § 1152(a), however, a "pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway." Indeed, the Rules of the City of New York explicitly bar pedestrians from "cross[ing] in front of oncoming vehicles," "cross[ing] any roadway at an intersection except within a crosswalk," and "cross[ing] a roadway except at a crosswalk on any block in which traffic control signals are in operation at both intersections bordering the block," (34 RCNY 4-04[b][2], [c][2], [c][3]).
The City's rules are specifically authorized under State law (see VTL § 1642). Although they seem to provide more specific limits on pedestrian conduct than are set forth in sections 1151 and 1152, including a specific prohibition on walking outside the crosswalk, the First Department nonetheless found them to be "essentially identical" to the state law provisions (see Franco v Zingarelli, 72 AD2d 211, 217 [1st Dept 1980]).
Nevertheless, a pedestrian's crossing of a street outside of a crosswalk does not constitute negligence per se (Deitz v Huibregtse, 25 AD3d 645, 646 [2d Dept 2006]). Rather, such conduct is relevant to the overall standard of care to which a pedestrian must adhere. The principles governing the assessment of a pedestrian's conduct in such circumstances, and under what circumstances he or she may be found contributorily negligent, were summarized by the First Department in Franco v Zingarelli (72 AD2d 211 [1st Dept 1980]), a case governed by the New York City traffic rules. The Franco Court stated as follows:
"The fact that a pedestrian undertakes to cross a street at a place other than a regular crossing will not, of itself, constitute contributory negligence so as to defeat an action for his injury, although if he elects to do so, rather than go to the regular crossing, he will be required to use greater care for his own safety than when he crosses at the place provided for pedestrians. The statute does not prohibit a pedestrian from crossing the roadway outside of a crosswalk. All that the law requires of a pedestrian crossing outside of a crosswalk is that he yield the right of way to a motor vehicle if the situation is such, taking into account the respective positions of the parties, and the speed at which each is traveling, that if each persists in his course the pedestrian will be struck by the automobile. The rule by which to determine whether one crossing a street between crossings has exercised the greater care required in such case is the rule of ordinary care, that is, has he used the care which an ordinary prudent person would use under the same conditions . . ."
Deitz also states that walking outside a crosswalk is not "prohibited" (25 AD3d at 646). Such language is difficult to square with the language of the above-cited Rule of the City of New York, which seems to bar that conduct. Since the place of crossing is relevant to the standard of care that claimant must exercise in any case, this issue is not material to the allocation of liability here.
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(id. at 218; see also Hogeboom v Protts, 30 AD2d 618, 620 [3d Dept 1968] ["A pedestrian who crosses a street at a place where there is no regular crossing may be chargeable with some additional vigilance because it is not a place set aside for the crossing of foot passengers, although even at such a place drivers are required to be watchful and careful"]).
Given that a pedestrian outside a crosswalk is expected to use such added care as is needed in that situation, and does not have the right of way, this factor is often cited in determining whether the accident resulted from his or her contributory negligence (see Pareja v Brown, 18 AD3d 636, 637 [2d Dept 2005] [finding issue of fact on contributory negligence, as to whether "plaintiff contributed to the accident by failing to exercise due care in crossing the street at a point other than an intersection or a crosswalk"]; Parrinello v Davis, 2 AD3d 610, 610 [2d Dept 2003] [finding question of fact as to whether, by walking outside crosswalk, pedestrian was "negligent in a manner that contributed to the occurrence of the accident"]; see also Schneider v Diallo, 14 AD3d 445 [1st Dept 2005] [violation of 34 RCNY 4-04[c][2], requiring pedestrians to cross intersections at the crosswalk, is "some evidence" of negligence]). For example, a pedestrian may be the proximate cause of her own injuries when she is outside the crosswalk and does not yield the right of way (see Shachnow v Myers, 229 AD2d 432, 433 [2d Dept 1996]), or "suddenly step[s] into the road when it was not safe for [her] to do so" (see Braxton v Jennings, 63 AD3d 772, 772 [2d Dept 2009]; see also Johnson v Lovett, 285 AD2d 627, 627 [2d Dept 2001] [defendant not negligent when it "established that the plaintiff stepped out in front of the stopped van directly into the path of the defendant's vehicle, and that the defendant was unable to observe the plaintiff at any time prior to the accident"]).
Finally, even when the pedestrian is negligent, the driver remains under a duty to exercise due care to avoid an accident (see e.g. Ryan v Budget Rent a Car, 37 AD3d 698, 699 [2d Dept 2007]). Thus, so long as the driver had "an opportunity to see [claimant]" and could have "used reasonable care to avoid hitting" that individual, he may be liable for the injuries that result (see Romeo v DeGennaro, 255 AD2d 208, 208 [1st Dept 1998] [denying summary judgment to defendant, although plaintiff pedestrian was crossing illegally, when there were questions of fact as to whether defendant could have avoided the collision]; see also Calico v Phillips, 63 AD2d 955, 955 [2d Dept 1978] [court erred in dismissing case of plaintiff hit by driver while crossing in "the middle of the roadway," since jury could have found "if defendant had been sufficiently vigilant and careful, he would have seen plaintiff in time to avoid injuring him"]).
Applying these principles to this case, I find that both parties fell short of the appropriate standard of care, and both thereby played a role in proximately causing the accident.
Munoz acknowledged that at the time of the accident, he could see numerous pedestrians walking next to his car (Tr. 172), and was driving at only five miles per hour. Yet according to his testimony, he collided with Coshburn almost immediately after taking his foot off the brake. A driver sufficiently attentive to the persons around him should have noticed a pedestrian crossing in front with time enough to stop - particularly given that she was an elderly individual carrying groceries, and thus moving slowly. On the basis of the record before me, I find that the driver's failure to observe a pedestrian crossing in front of him until the moment of impact, while crawling at minimal speed, fell short of his duty of care (see Topalis v Zwolski, 76 AD3d 524, 525 [2d Dept 2010] ["A driver is bound to see what there is to be seen with the proper use of his senses" and keep a "proper lookout"]).
For her part, Coshburn stepped in the middle of a heavily trafficked street, rather than walking less than a block to the crosswalk and traffic signal. Moreover, by her own admission, when she looked to her left she saw that Munoz' vehicle had already passed the traffic light on West 231st Street, when it turned red. Yet she did not wait for the car to pass her, but instead crossed right in front of a vehicle quite close to her, and with no traffic signal between them. Finally, while she says that she signaled and made eye contact with the driver, that account is difficult to square with the collision that immediately followed, for reasons set forth above. In sum, she headed into busy traffic, in front of a vehicle, without making sufficient efforts to gain the driver's attention. These actions provide ample basis for a finding of contributory negligence.
In light of the foregoing, I find that both parties were negligent in this incident, and that each one's negligent conduct was a contributing cause of the accident. Since I believe that responsibility is spread fairly equally between driver and pedestrian, I apportion fault fifty per cent to the State, and fifty per cent to claimant.
The Court will contact the parties to schedule this matter for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
October 1, 2014
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims