Opinion
Decided March 26, 2004.
Jonathan Staehr, Esq., for Plaintiff.
JoAnne Leegant, Esq., for Defendant.
This is a negligence action arising from the collision of two motor vehicles. The case proceeded to a non-jury trial, where the only admissible proof offered by plaintiff on the issue of negligence was the testimony of a police officer who did not witness the accident. For the reasons that follow, the court finds no cause for action.
FACTS
In the early morning hours of July 17, 2001, a rental car owned by plaintiff and operated by Nichole Coombs was involved in a collision with a vehicle owned by defendant. The accident occurred shortly before 1:00 a.m. at the intersection of Chili Avenue and Kenwood Avenue in the City of Rochester.
When Officer Kate Springer arrived on the scene a few minutes after receiving a call from the 911 center, the driver of defendant's vehicle was nowhere to be seen. After determining that the driver of the other vehicle, Ms. Coombs, was not injured, Officer Springer assessed the accident scene. The rental car, owned by plaintiff, was on Chili Avenue with extensive damage to its passenger side. Defendant's vehicle, a 1999 Dodge owned, was in the middle of the intersection with damage to its front end.
There is a stop sign on Kenwood Avenue at the intersection but no traffic control device for those traveling on Chili Avenue. Based on the position of the two vehicles and the resulting damage, it appeared to Officer Springer that defendant's vehicle had struck plaintiff's vehicle broadside as its driver attempted to turn from Kenwood onto Chili Avenue.
About 10 or 15 minutes after Officer Springer arrived at the scene, defendant, Sheila Charles, approached the officer on foot and identified herself as the owner of the Dodge. Defendant told Officer Springer that she had not been driving her car because it had been stolen earlier that day. When Springer asked how she knew her car had been involved in an accident, defendant said that her friend had noticed her car at the accident scene and notified her at home.
Ms. Coombs, the driver of plaintiff's rental car, lives in Florida, and she did not testify at trial. Plaintiff called two witnesses, Officer Springer and a property damage appraiser. Officer Springer testified that defendant's car showed no signs of having been stolen. There was no damage to the steering column and no broken windows. The officer also testified as to her observations of the accident scene, including the position of the two vehicles and the damage sustained by each.
During the testimony of Officer Springer, plaintiff moved to admit into evidence the officer's police report, which was based largely upon information provided by Ms. Coombs. According to counsel for plaintiff, the report, which was prepared by Officer Springer during the course of her official duties, is admissible under the business record exception to the hearsay rule. Defendant opposed admission of the report, and the court reserved decision to allow the parties to submit legal argument.
Defendant was the only defense witness, and her testimony contradicted that of Officer Springer in several respects. Defendant testified that she was sleeping at home when, at about 3:00 a.m., she received a call from the police indicating that her car had been involved in an accident. According to defendant, she then went outside and encountered two strangers in the front yard who offered to drive her to the accident scene, where she arrived at approximately 3:30 a.m. Because she had parked her car in the driveway earlier that night, defendant concluded that it must have been stolen after she went to sleep.
DISCUSSION
A. The Police Report is Inadmissible
The law with respect to the admissibility of police reports is well established. A police report is admissible as a business record under CPLR 4518(a) if (1) the officer who completed the report was a witness, or (2) the person who provided the information for the report was under a duty to impart such information to the officer ( see Johnson v. Lutz, 253 NY 124; Prince, Richardson on Evidence $8-307 [Farrell 11th ed]). Here, the officer who completed the report did not witness the collision and the person who provided the information contained in the police report was not under a duty to do so. Thus, the report is not admissible under the business record exception to the hearsay rule ( see Holliday v. Hudson Armored Car Courier, 301 AD2d 392 [1st Dept 2003]; Mooney v. Osowiecky, 235 AD2d 603 [3rd Dept 1997]; see also Nahrebeski v. Molnar, 286 AD2d 891 [4th Dept 2001]).
Plaintiff's reliance on Matter of Irizarry ( 287 AD2d 716 [2nd Dept 2001]) is misplaced. In Irizarry, the statements of a witness contained in a police report were admissible as present sense impressions, as the witness had described what he had observed while he was observing it. Here, in contrast, the present sense impression exception clearly does not apply. The witness gave statements to the police officer well after the collision occurred.
Relying on Lopez v. Ford Motor Company, ( 238 AD2d 211 [1st Dept 1997]), counsel for plaintiff further argues that the witness, Ms. Coombs, had a duty "to make a report to or answer the inquires of a police officer" regarding the accident. The court disagrees. The Appellate Division in Lopez held that a driver involved in an accident has a duty to provide the responding officer with a certificate of registration. Indeed, that duty is codified in Section 401(4) of the Vehicle Traffic Law.
It does not follow, however, that the driver has a duty to provide the police with information regarding the accident and how it occurred. In fact, it is clear that a driver has no such duty ( see Narvaez v. NYRAC, 290 AD2d 400 [1st Dept 2002]; Hatton v. Gassler, 219 AD2d 697 [2nd Dept 1995]; Depena v. Metropolitan Ambulance, 1 Misc3d 13 [App Term, 2nd Dept 2003]; Brown v. Reece, 194 Misc2d 269 [Civ Ct, New York County 2003]).
Accordingly, the court will not consider the contents of the police report in its deliberations.
B. Defendant Failed to Rebut the Consent Presumption
[This portion of the decision is omitted for publication purposes].
C. Plaintiff Failed to Prove Negligence
Having established that defendant or someone with her permission was driving her vehicle at the time of the accident, plaintiff, to recover damages, must prove that such driver was negligent. Because the police report is inadmissible, the only evidence proffered by plaintiff was the testimony of Officer Springer, who did not witness the collision. The question presented is whether the officer's testimony alone is sufficient to establish a prima facie case of negligence.
Officer Springer testified that, when she arrived at the scene, she observed plaintiff's car on Chili Avenue with damage to its passenger's side, and defendant's car in the intersection with damage to its front end. Although not touching, the two vehicles were very close to each other and appeared to have collided.
Based on the positioning of the two vehicles, it further appeared to Officer Springer that the collision occurred when the driver of defendant's vehicle attempted to turn onto Chili Avenue from Kenwood Avenue. As stated above, the officer testified that there is a stop sign at the corner of Kenwood and Chili for vehicles on Kenwood, but no traffic control device for those traveling on Chili.
It is true, as plaintiff contends, that a claim of negligence may be established by circumstantial evidence. To prove negligence based wholly on circumstantial evidence, however, "a plaintiff must demonstrate the existence of 'facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'" ( Holliday v. Hudson Armored Car Courier, 301 AD2d 392 [1st Dept 2003], quoting Schneider v. Kings Highway Hosp. Center, 67 NY2d 743, 744).
Here, we can deduce from the accident scene that the two vehicles collided. We can also conclude that the front of defendant's vehicle collided with the passenger's side of plaintiff's vehicle. But that is all the evidence proves. We do not know how the accident occurred, and we cannot assume that the driver of defendant's vehicle was at fault. Perhaps the driver of plaintiff's vehicle was speeding or was driving without the headlights activated. Perhaps the vehicles had been moved after the collision. Or perhaps the vehicles, after colliding, spun around. If the vehicles had been moved or spun around, it cannot be be said with certainty that plaintiff's vehicle was traveling on Chili Avenue rather than Kenwood.
Moreover, Officer Springer's opinion as to how the accident occurred was not based upon a "postincident expert analysis of observable physical evidence" ( Hagicostas v. National Frgt. Sales, 226 AD2d 584 [2nd Dept 1996]; see Hatton v. Gassler, 219 AD2d 697 [2nd Dept 1995]). Her testimony is therefore of limited probative value.
In short, there are too many unanswered questions to determine that the driver of defendant's vehicle was negligent, and, for the reasons that follow, it is impermissible to shift the burden of explanation to the defense.
A presumption of negligence may be drawn from certain facts. For instance, a "rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle and imposes a duty of explanation on that operator" (Sekuler v. Limnos Taxi, 264 AD2d 389 [2nd Dept 1999]; see Jones v. Egan, 252 AD2d 909 [3rd Dept 1998]; Barile v. Lazzarini, 222 AD2d 635 [2nd Dept 1995]).
Similarly, a presumption of negligence arises where, at the time of a collision, the driver was asleep at the wheel ( see Romero v. Romero, 266 AD2d 367 [2nd Dept 1999]) and where a vehicle leaves the roadway and strikes a tree ( see Cebula v. Bonime, 92 AD2d 856 [2nd Dept 1983]). In those circumstances, the collision itself established a prima facie case of negligence.
The case at hand is factually distinguishable because, under plaintiff's own theory, it involves a collision between two moving vehicles. No authority could be found for presuming negligence on the part of one driver involved in a collision between two moving vehicles. Thus, even though defendant offered no proof as to how the accident occurred, she was not required to do so. It was the plaintiff's burden to establish a prima facie case, and, in the absence of testimony from someone who witnessed the accident, it failed to do so.
Accordingly, the court finds no cause for action and dismisses the complaint. This constitutes the verdict of the court.