Opinion
99 Civ. 2684 (SAS).
April 19, 2000.
Daniel W. Pariser, Esq., Pariser Vogelman, P.C., for Plaintiff.
Dennis S. Connor, Esq., for Defendant.
MEMORANDUM OPINION AND ORDER
Emma Jean Sheehan is suing Jamaica Buses, Inc. for its alleged failure to exercise the duty of care owed by a common carrier to its bus passengers. Specifically, plaintiff alleges, inter alia, that defendant was negligent when one of its bus operators abruptly slammed on the brakes of a bus on which plaintiff was riding. As a result of this abrupt stop, plaintiff was thrown from her seat causing her to suffer a myriad of physical injuries. Defendant now moves for summary judgment under Federal Rule of Civil Procedure 56(c). For the following reasons, defendant's motion is granted.
I. Facts
The following facts are taken from the Affidavit of Arthur Hampton, the operator of the bus in question, as well as his deposition testimony, as plaintiff has no knowledge of the accident. See Deposition Testimony of Emma Jean Sheehan, attached as Exhibit E to the Affirmation of Dennis S. Connor, defendant's attorney, sworn to March 29, 2000 ("Connor Aff."), at 52 (plaintiff admits she has no knowledge of the details of the accident because she was sleeping at the time).
On April 18, 1996, at approximately 9:30 a.m., the bus operated by Arthur Hampton was struck by a taxi cab. See Affidavit of Arthur Hampton ("Hampton Aff."), attached as Exhibit F to the Connor Aff., ¶ 3. At the time of the accident, the bus was traveling northbound on Madison Avenue between 30th and 31st Streets. Hampton Aff. ¶ 4. The bus was traveling at approximately twenty miles per hour in the far right lane next to the parking lane on Madison Avenue. Id. ¶ 7. While driving, the bus driver noticed a cab in the far left traffic lane. Id. ¶ 8. The cab was moving in a northeast direction, cutting across the two lanes of traffic that separated the bus from the cab. Id. Within a couple of seconds of seeing the cab, the bus driver took his foot off the accelerator, honked the horn, and applied the brakes. Id. ¶ 9. The bus then came to a stop at which time it was struck lightly by the cab. Id. ¶ 10.
Arthur Hampton testified, at his deposition, that the bus traveled approximately seven to ten feet from the time he first applied the brakes to the time it stopped. See Affirmation in Opposition of Daniel W. Pariser, plaintiff's attorney, sworn to April 7, 2000 ("Pariser Aff."), Exhibit B at 54. He later corrected this statement to read seven to ten feet or more. See Correction Sheet, attached as Exhibit D to the Reply Affirmation of Dennis S. Connor, sworn to April 13, 2000 ("Connor Reply"). The reason for this change was that upon reflection the distance seemed greater to Mr. Hampton.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party demonstrates that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it would affect the outcome of the suit as determined by the governing substantive law. Id.
See Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970).
Once the moving party has met its initial burden of showing the absence of any genuine issue of material fact, the nonmoving party must come forward with specific facts evidencing a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). These facts must consist of admissible evidence as "the district court properly considers only evidence that would be admissible at trial" on a summary judgment motion. Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 746 (2d Cir. 1998) (citing Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Rather, the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in its favor. See Goenaga v. March of Dimes Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
B. Analysis
Under New York law, which applies to this diversity case, "a plaintiff must establish three elements to prevail on a negligence claim: `(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.'" Alfaro v. Wal-Mart Stores, Inc., 99 Civ. 7688, 2000 WL 287314, at *2 (2d Cir. Mar. 16, 2000) (quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981)). The existence of a duty is thus essential to a negligence claim for in its absence no liability can ensue as a matter of law. See McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997).
"The question of the existence and scope of an alleged tortfeasor's duty `is, in the first instance, a legal issue for the court to resolve.'" Alfaro, 2000 WL 287314, at *2 (quoting Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229 (1987)).
Identifying the scope of an alleged tortfeasor's duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. New York courts fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.Id. (internal quotation marks and citations omitted).
"The law is clear that a common carrier is held to a duty of care commensurate with the particular hazards involved, i.e., all the care and caution which a bus driver of reasonable skill, foresight, and prudence could be fairly expected to exercise." D.C. Transit Sys., Inc. v. Carney, 254 A.2d 402, 403 (D.C.App. 1969). Thus, the question here is whether Arthur Hampton breached this duty by applying the bus brakes in a manner that caused plaintiff to be thrown from her seat.
The only evidence submitted by plaintiff touching on the question of negligence is the Affidavit of Daniel S. Burdett, a purported accident reconstruction expert, sworn to April 6, 2000 ("Burdett Aff."). Factoring the distance the bus traveled from the time the bus driver applied the brakes to the time the bus stopped, i.e., seven to ten feet, and its rate of speed, Mr. Burdett concludes that "the bus driver did not apply his brakes gradually, but rather quickly, with sudden force." Burdett Aff. ¶ 8. He further concludes that "the bus driver had sufficient time to slow down the bus to prevent of lessen the impact of the subject accident." Id. ¶ 11.
This conclusion is premised on an outdated set of facts given Arthur Hampton's correction that the distance traveled was actually seven to ten feet or more.
This affidavit, however, is inadmissible and cannot be considered for purposes of this motion as plaintiff's failure to identify an expert prior to April 7, 2000 is inexcusable. At a conference held on July 22, 1999, I initially set a discovery cutoff of October 30, 1999 and a final pretrial conference was scheduled for December 7, 1999. Included in this discovery cutoff were the dates for the identification, reports and depositions of any experts to be called at trial. Two conferences were then held, on December 7, 1999 and January 19, 2000, during which counsel for both sides did not raise any discovery problems and stated that they were ready to proceed to trial. See Transcript of February 3, 2000 Conference ("2/3/00 Tr."), attached as Exhibit A to the Connor Reply, at 6, 13.
Then, on January 25, 2000, defendant's counsel wrote this Court requesting a pre-motion conference with regard to summary judgment on both liability and damages. See Letter form Michael Pelinsky, Esq. of 1/25/00. Plaintiff's counsel responded with a letter in which he alerted the Court, for the first time, of his need for the bus driver's deposition transcript, which had not yet been provided even though the deposition took place on December 17, 1999. See Letter from Steven G. M. Biro of 2/2/00 ("In this regard, it may be necessary for us to retain additional experts to testify regarding certain portions of the bus driver's testimony and damages.").
At a conference held on February 3, 2000, Mr. Biro reiterated his need for the bus driver's deposition transcript and how it affected his use of an expert. See 2/3/00 Tr. at 4-5. During that conference, I noted that discovery was closed and that the "time for naming experts came and went." Id. at 12. Nonetheless, I ordered defendant's counsel to provide the transcript no later than February 10, 2000. Id. at 19. To give plaintiff one last chance at naming an expert, I directed Mr. Biro to name any expert he intended to use by February 24, 2000, with the expert report and deposition due by March 3 and 17, 2000, respectively. Id. Plaintiff chose to ignore this instruction and once again failed to submit an expert report by the designated date.
Now, for the first time, in a transparent attempt to create an issue of fact where none would otherwise exist, plaintiff has submitted the affidavit of Daniel S. Burdett, an alleged expert in accident reconstruction. Mr. Burdett now offers an opinion that "the bus driver did not apply his brakes gradually, but rather quickly, with sudden force" and that "the bus driver had sufficient time to slow down the bus to prevent or lessen the impact of the subject accident." See Affidavit of Daniel S. Burdett, sworn to April 6, 2000, ¶¶ 8, 11. This affidavit, however, is too late and too little. First, the affidavit is dated April 6, 2000, approximately five weeks after the second expert report deadline set by this Court. Consequently, this affidavit will not be considered because it is untimely. See Nippon Fire Marine Ins. Co., Ltd. v. Skyway Freight Sys., Inc., 67 F. Supp.2d 293, 298 (S.D.N.Y. 1999) ("Plaintiff was required to identify any experts in response to the defendants' interrogatories so that any appropriate expert disclosure could be completed before the Court's consideration of the parties' dispositive motion. As a result of the plaintiff's failure to identify Wilkins as an expert, the Court will not consider the Wilkins' affidavit for purposes of the present [summary judgment] motion). See also Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998) (district court's exclusion of expert's opinion on the basis of untimeliness affirmed); Baker v. Indian Prairie Community Unit Sch. Dist. No. 204, 96 Civ. 3927, 1999 WL 988799, at *2 (N.D. Ill. Oct. 27, 1999) ("The sanction of exclusion applies at summary judgment as well as at trial.").
Second, even if the Burdett affidavit were timely and could be considered, it would not change the outcome. That affidavit only supports the proposition that the bus came to a sudden stop as opposed to a gradual slowing. This, however, is not evidence of negligence. Here, as in Carney, the stop, even if sudden, was necessitated by an emergency situation created by the cab's right turn into the path of the bus. The bus driver was confronted with a "sudden and unforseeable event" to which he acted "reasonably under the circumstances." See Hampton Aff. ¶ 12. As the record here is devoid of any evidence of negligence, summary judgment in defendant's favor is warranted. See Carney, 254 A.2d at 404 (granting judgment for defendant notwithstanding the verdict for plaintiff and holding "the bus driver was confronted with an emergency situation which he could not have reasonably anticipated and for which he was not responsible")
III. Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this case.
SO ORDERED:
Dated: New York, New York April 2000