Linda M. Brown, Respondent,v.State of New York, Appellant.BriefN.Y.May 1, 2018To be Argued by: JONATHAN D. HITSOUS Time Requested: 20 minutes APL-2016-00226 APL-2016-00227 Claim Nos. 108961, 110037 H>tate of iSrto Court of Appeals; LINDA M. BROWN, Respondent, -against- THE STATE OF NEW YORK, Appellant. LINDA M. BROWN, as Administratrix of the Estate of WAYNE BROWN, Respondent, -against- THE STATE OF NEW YORK, Appellant. REPLY BRIEF FOR APPELLANT STATE OF NEW YORK ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant The Capitol Albany, New York 12224 Telephone: (518) 776-2044 BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General JONATHAN D. HITSOUS Assistant Solicitor General of Counsel Dated: October 6, 2017 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 ARGUMENT POINT I THE STATE IS NOT LIABLE BECAUSE THE STATE’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF THIS ACCIDENT 4 A. Claimant was required to establish in sufficient detail how the State was negligent B. Reasonable care did not require the State to place a four-way stop sign at the intersection before the accident, and the lower courts did not find that it did.. C. Claimants other arguments fail to cast any doubt on the initial finding of the Court of Claims that the State’s negligence was not the proximate cause of the accident 4 11 14 POINT II ALTERNATIVELY, FAULT SHOULD BE APPORTIONED TO FRIEND 19 CONCLUSION 25 i TABLE OF AUTHORITIES CASES PAGE Alexander v. Eldred, 63 N.Y.2d 460 (1984) 8 Ando v. Woodberry, 8 N.Y.2d 165 (1960) 22 Dunn v. State, 29 N.Y.2d 313 (1971) 15-16 Ernest v. Red Creek Cent. Sch. Dist., 93 N.Y.2d 664 (1999) 16 Ferrer v. Harris, 55 N.Y. 2d 285 (1982) 6-7 Food Pageant, Inc. u. Consol. Edison Co., Inc., 54 N.Y.2d 167 (1981) 6 Friedman v. State, 67 N.Y.2d 271 (1986) 10, 17 Galindo v. Town of Clarkstown, 2 N.Y.3d 633 (2004) 8 Hain v. Jamison, 28 N.Y.3d 524 (2016) 21-22 Harris v. Vill. of East Hills, 41 N.Y.2d 446 (1977).. 17 Hartnett v. N.Y. City Transit Auth., 86 N.Y.2d 438 (1995) 18 ii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Herman v. City of Buffalo, 214 N.Y. 316(1915). 6 Horton v. Warden, 32 A.D.3d 570 (3d Dep’t 2006) 23 Hyde v. Rensselaer Cty., 51 N.Y.2d 927 (1980) 21 Lavounte A., In re, 12 N.Y.3d 832 (2009) 19 Lochner v. New York, 198 U.S. 45 (1905) 5 Lohraseb v. Miranda, 46 A.D.3d 1266 (2d Dep’t 2007) 22 Lopes v. Rostad, 45 N.Y.2d 617 (1978) 7 Murchison v. Incognoli, 5 A.D.3d 271 (1st Dep’t 2004) 23 Murray v. State, 38 N.Y.2d 782 (1975) 4, 14 Rockman v. Brosnan, 280 A.D.2d 591 (2d Dep’t 2011) 22 Saarinen v. Kerr, 84 N.Y.2d 494 (1994) 8 iii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Sawyer v. Dries & Krump Mfg. Co., 67 N.Y.2d 328 (1986) 21 Scheemaker v. State, 70 N.Y.2d 985 (1988) 18 Sheehan v. City of N.Y., 40 N.Y.2d 496 (1976) 17 Tomassi v. Town of Union, 46 N.Y.2d 91 (1978)... 6,8 Tortora v. State, 269 N.Y.167 (1935) 16 Turturro v. City of N.Y., 28 N.Y.3d 469 (2016) 17 Vanderhule v. Berinstein, 285 A.D. 290 (3d Dep’t 1954) 7 Weiss v. Fote, 7 N.Y.2d 579 (1960) 9 Zadins v. S.K. Pommerville, 300 A.D.2d 1111 (4th Dep’t 2002) 23 STATE STATUTES Vehicle and Traffic Law 22§ 1142(a) iv PRELIMINARY STATEMENT The State of New York submits this brief in reply to the brief filed by claimant Linda Brown. The State appeals from the judgment of the Court of Claims holding it liable for negligently failing to maintain an intersection at which claimant was injured in a two-vehicle accident. The Court of Claims initially dismissed claimant’s action, finding that the State was negligent in failing to complete a study, but that claimant had not proved that this negligence proximately caused the accident. The court reasoned that, had the state completed the study, it would nevertheless not have installed the four-way stop sign that claimant proposed as a remedy. In 2010, the Appellate Division, Fourth Department reversed, finding that claimant’s burden was to prove only that a “dangerous condition” — and not the State’s failure to take the remedial measures claimant proposed— proximately caused the accident. On remittal, the Court of Claims, applying that standard, found the State solely liable, a judgment the Fourth Department affirmed in 2016. As explained in the State’s main brief (State Br. at 25-27), the Fourth Department erred in two separate respects: first, it erred in its 2010 holding that to establish proximate cause, claimant need show only that a “dangerous condition,” rather than the State’s negligence, proximately caused the accident. The dissenting Fourth Department Justices in 2010 correctly recognized that under the present circumstances, claimant had to identify what corrective actions the State should have taken and prove that these actions would have reduced the risk of the April 2003 accident. And second, the Fourth Department erred in 2016 in finding that Henry Friend, the other driver, bore no responsibility at all for this accident. Claimant’s defense of the Fourth Department’s rulings is flawed. First, like the Fourth Department, she insists on framing the State’s duty at far too high a level of generality, arguing that, having notice of a dangerous condition at the intersection, the State was negligent because it did not make the intersection “reasonably safe” within a “reasonable time.” (Cl. Br. at 2.) But the questions of whether the State was negligent, and whether its negligence was a proximate cause of the accident, can be answered only in the context of the specific facts of the case. Claimant’s arguments— along with the ruling from the Fourth Department that they defend— would allow the State to be liable whenever an effective remedial measure was possible— regardless of 2 whether the duty of reasonable care required the State to undertake that particular measure. But that is not the law. As the State explained in its main brief, the Court of Claims in its original decision reasonably found that the failure to install a four-way stop sign before the accident was not negligent, and that the failure to complete the study and take some other remedial action, although negligent, was not a proximate cause of this accident. As the dissent explained, the trial court’s conclusion was supported by a fair interpretation of the evidence and the majority should have affirmed it. The Court of Claims reached a different result on remittal only because the Appellate Division had erroneously directed it to consider only whether the accident was caused by a dangerous condition and not whether it was also caused by the State’s failure to take specific remedial measures to correct that condition. Claimants’ argument that the intersection was so dangerous that Friend was free from responsibility is equally flawed. She ignores the fact that Friend could have seen the oncoming motorcycle if he had exercised reasonable care, and had already been found to have failed to yield the right of way. 3 For these reasons, the State asks this Court to reverse the Fourth Department’s 2016 Memorandum and Order and dismiss the claims or, alternatively, to reverse the Fourth Department’s 2016 Memorandum and Order and remit with instructions to apportion liability to Friend. ARGUMENT POINT I THE STATE IS NOT LIABLE BECAUSE THE STATE’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF THIS ACCIDENT In order to establish the State’s liability in this case, claimant was required to prove not only that the State was negligent, but also that the State’s negligence was a substantial factor in causing the accident. See Murray v. State, 38 N.Y.2d 782, 784 (1975). Claimant— and the Fourth Department— find that proof in this record only by making a series of legal errors: they incorrectly cast the State’s negligence in the broadest and most general terms, and rest liability on the conclusion that the dangerous condition of the intersection, rather than the State’s negligence, was the proximate cause of the accident. A. Claimant was required to establish in sufficient detail how the State was negligent Properly characterizing the State’s negligence is necessary to determine whether that negligence was a proximate cause of the April 4 2003 accident. The Fourth Department majority erroneously held that it was enough for claimant to prove that a known dangerous condition proximately caused the accident. (R682.) In its main brief, the State explained that the court erred because negligence requires more than the existence of a known dangerous condition. Claimant must prove in addition that there was remedial action that reasonable care required the State to take and that it failed to take. (State Br. at 38). Claimant responds that the Fourth Department is correct because here the State’s negligence was its failure to correct a known dangerous condition within a reasonable time. (Cl. Br. at 22, 34-35.) But claimant defines the State’s duty at an unreasonably high level of generality. Her argument disregards Justice Holmes’s well-known warning that “[gjeneral propositions do not decide concrete cases.” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). The correct inquiry is what action the State was required to take, and failed to take, to meet its general duty to provide a reasonably safe highway. Despite repeatedly referring to “ordinary negligence principles” (Cl. Br. at 3, 14-17, 19, 23, 26), claimant’s theory would erase a concept central to all “ordinary” negligence cases: the reasonable person 5 standard. Food Pageant, Inc. v. Consol. Edison Co., Inc., 54 N.Y.2d 167, 172-73 (1981) (“In the ordinary negligence action, the question is what a reasonable person would have done under the circumstances”). The State cannot be found negligent merely for failing to remedy a known dangerous condition. It would be negligent only if it unreasonably failed to do so. Tomassi v. Town of Union, 46 N.Y.2d 91, 97-98 (1978). Unreasonable conduct is defined by what is reasonable. Herman v. City of Buffalo, 214 N.Y. 316, 320 (1915) (negligence is “relative” to reasonable care). Despite claimant’s assertion otherwise (Cl. Br. at 19-20, 33), she must show what was reasonable even if the State did “nothing at all.” Where, as here, the alleged negligence is failure to act, or negligence by omission, it is necessary to identify the act or acts that should have been performed; “the actor is required to do that which a reasonable man would believe to be necessary to afford the aid or protection to which the other is entitled.” Restatement (Second) of Torts, Scope Note to Topic 7, Duties of Affirmative Action at 115 (1965). Measuring the State’s conduct against that of a reasonable custodian of the roads begins with determining what, if anything, a reasonable custodian would have done. See Ferrer v. Harris, 55 N.Y.2d 6 285, 292 (1982) (recognizing that the reasonable person standard was necessary to determine “what was appropriate” under the circumstances). Contrary to claimant’s assertion (Cl. Br. at 19, 21), contending that the State was required to take unspecified “reasonable measures,” while leaving the court to fill in the blanks, amounts to nothing more than negligence in the air. See, e.g., Vanderhule v. Berinstein, 285 A.D. 290, 294 (3d Dep’t 1954) (an “abstract duty” is “not a duty for the breach of which an action could be maintained”). Rather, in claims such as this, claimant must present a plausible alternative to the status quo— the “corrective action” to which the Fourth Department dissent refers. (R686.) Claimant denies that she must identify reasonable corrective measures because the law already obligates the State to keep its highways safe. (Cl. Br. at 20-21, 36.)1 Although the State’s duty stated generally is to “maintain its roads and highways in a reasonably safe condition,” Lopes v. Rostad, 45 N.Y.2d 617, 623 (1978), this “general 1 In this Court, claimant abandons reliance on the State’s ongoing duty to review its plan in light of existing operation (Cl. Br. at 19 n.2)— the “different theory” that the Fourth Department majority twice invoked in defining the State’s negligence here (R684). 7 proposition” alone does not resolve this case. Any highway can be made safer, “no matter how careful its design.” Tomassi, 46 N.Y.2d at 97. What is reasonably “safe,” and what is not, depends on the facts of each case, which is why courts inquire whether the State’s actions or omissions are negligent “under the circumstances.” See Alexander v. Eldred, 63 N.Y.2d 460, 464 (1984); see also Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004) (municipality has duty to maintain property in a reasonably safe condition under the circumstances); see generally Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994) (reasonable care “under the circumstances” is the standard associated with “ordinary negligence claims”). Claimant asserts that the State is departing from “ordinary negligence principles,” stressing that none of the State’s cited cases held that plaintiffs must identify reasonable corrective measures. (Cl. Br. at 36-40.) However, the cases at issue (State Br. at 42-45) in fact illustrate that in highway negligence cases, plaintiffs regularly have identified the measures they believed a reasonable custodian of the roads would have taken, such as installing a stop sign, extending a sidewalk, or taking traffic calming measures. Claimant does not present— and we have not found— any contrary examples in which a court found a defendant 8 negligent without identifying such action. And as the State noted in its main brief (State Br. at 40), at the trial claimant readily identified the measure she believed a reasonable custodian of the roads would have taken at the intersection— installing a four-way stop sign (R275-76, 304)— but the Court of Claims correctly held that reasonable care did not require a four-way stop sign. Claimant only adopted the position that she provided more proof at trial than she needed (Cl. Br. at 36) after the Fourth Department mistakenly relieved her of her burden to identify remedial measures. Claimant asserts that the State’s argument distorts Weiss v. Fote, 7 N.Y.2d 579 (1960), reshaping the State’s duty to keep its highways safe into an obligation to hold a “trial within a trial” over what a hypothetical study would have recommended. (Cl. Br. at 23-25.) But that is simply incorrect as a general proposition. Claimant injected the study into this case by arguing that the State’s inability to complete it was negligent. (R282.) In its initial decision, the Court of Claims accordingly found that the State’s negligence was its failure to complete the study and take some remedial action. (R650-51, 676.) By this finding, the court followed claimant’s lead and acknowledged that a traffic study is the usual process 9 by which the State determines whether and how to respond to complaints that a highway is unsafe. See Friedman u. State, 67 N.Y.2d 271, 284 (1986) (“Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger.”) Ultimately, however, where, as here, claimant alleges the State was responsible for an accident that happened in the absence of a completed study, claimant’s burden is the same as if State never began a study in the first place: (1) to establish that there were one or more remedial measures that the State should have taken in response to conditions at the intersection; and (2) to establish that the State’s failure to take these measures increased the likelihood of the accident. The State’s failure to complete a study was not sufficient to satisfy claimant’s burden. The fact that the Court of Claims (in its first decision)2 and the Appellate Division majority both found that the intersection was dangerous (Cl. Br. at 35-36) does not relieve claimant of her burden to 2 The trial court’s post-reversal findings should not be considered in determining whether the Fourth Department erred in reversing the trial court in the first place. 10 identify what measures the State should have taken at the intersection in the exercise of reasonable care. And on that point, the Court of Claims found in 2008 that a reasonable custodian of the roads would not have needed to install a four-way stop sign at the intersection, but nonetheless found that a reasonable custodian would have taken the incremental measures the State’s expert identified, such as trimming shrubs, dual posting, or installing flashing beacons or a flashing signal. The Court of Claims thus concluded that the State’s failure to take these measures was negligent, but held that this negligence was not a proximate cause of the accident because the failure to take those measures did not make the accident materially more likely. As the dissenting justices pointed out, these findings were supported by a reasonable interpretation of the evidence. B. Reasonable care did not require the State to place a four-way stop sign at the intersection before the accident, and the lower courts did not find that it did This appeal boils down to a straightforward failure of claimant’s proof. Claimant did not convince the trial court that a reasonable custodian of the roads needed to install a four-way stop sign at the intersection, and so the court did not consider a four-way stop sign’s 11 potential effect in the proximate-cause analysis. Claimant argues at length that a four-way stop sign was required, but her arguments fail to support that conclusion. Claimant mistakenly insists that the Court of Claims found that the State should have installed a four-way stop sign, and that the Fourth Department went on to affirm this finding, placing it beyond this Court’s review. (Cl. Br. at 37-38.) She is inaccurate for two reasons. First, in its 2008 decision, the trial court did not identify the absence of a four-way stop sign as part of the State’s negligence, and its reasoning is inconsistent with any such finding. The trial court denied liability on the ground that there was no proof that if the State had completed the study, it would or should have installed a four-way stop sign at the intersection before the April 2003 accident. (R651.) That is, the court found there was no proof that the state’s negligence caused the absence of a four-way stop sign. If the court had found that the failure to install a four-way stop sign was itself negligent, there would have been no reason to ask what caused that failure;— the court would have asked only whether the absence of a four-way stop sign was a proximate cause of the accident. 12 Thus, the trial court did not find the State negligent for failing to install the sign. Second, the Fourth Department did not purport to affirm any such finding. Indeed it had no need to do so, in view of its ruling that it was sufficient to prove a dangerous condition, without proving the specific remedial measures that should have been taken. And the courts below avoided making such a finding for good reason. Claimant’s contention that a four-way stop sign was the only reasonable remedial option (Cl. Br. at 9-11), was not supported by either of the experts who testified at trial. Although claimant’s expert identified a four-way stop sign as the effective remedy, he wavered, testifying that the State could have reasonably tried a number of other remedial measures first, and admitted that the four-way stop might not have become necessary until 2003, the year of the accident. (R302.) Before trial he was even more specific about the other possibilities that should be tried first, and did not include any opinion about when a four-way stop sign would become appropriate. (R566-67.) The State’s expert never wavered in his opinion that conditions at the intersection did not require a four-way stop sign at any time before the accident. (R164-65, 232-33.) 13 Where claimant’s expert provided an equivocal opinion that at times supported that of the State’s expert, the weight of the evidence favors the conclusion that a reasonable custodian of the roads did not need to install a four-way stop sign at the intersection before April 2003, when the accident occurred. C. Claimants other arguments fail to cast any doubt on the initial finding of the Court of Claims that the State’s negligence was not the proximate cause of the accident As the Court of Claims initially correctly held, and the dissenting justices agreed, claimant could not prevail because she could not demonstrate that the State’s negligence made the accident materially more likely to occur. Claimant proposes that the court need only evaluate whether the State’s failure to take any remedial measures contributed to the accident, without regard to “what [the State] might have done in the absence of negligence.” (Cl. Br. at 8-9, 36, 38 n.8.) But this suggestion expressly contradicts the rule that the defendant’s negligence must be the proximate cause of claimant’s injury. See Murray, 38 N.Y.2d at 784. And in order to determine whether that negligence contributed to the risk of the accident, it is necessary to determine what the risk would have been 14 in the absence of negligence. Claimant failed to show that if the State had taken the steps required of a reasonable custodian of the roads, the accident would have been less likely to occur. Claimant’s related contention that courts should inquire whether an accident would be less likely if the highway was “safe” (Cl. Br. at 35-36, 40) is mistaken, because it would allow courts to find the State was liable based on the possibility of remedial measures that the State had no duty to take. The consequence would be to base the State’s liability on the fact-finder’s capacity to imagine a highway without accidents. Claimant mistakenly argues that reasonable remedial measures should not factor into the proximate-cause analysis if they would not have prevented this accident. In sum, claimant asserts that those measures would not have been reasonable because they would have left the intersection “unsafe.” (Cl. Br. at 29, 32, 34.) But claimant’s argument improperly relies on hindsight. Here, the experts agreed that it would have been reasonable to first try measures short of a four-way stop sign. (See R120-22, 131-32, 302.) Moreover, claimant’s argument ignores that negligence and proximate cause are distinct elements. See Dunn v. State, 29 N.Y.2d 313, 15 318 (1971) (no liability because the accident at issue was a “remote consequence of the State’s negligence”). A court neither “abrogates” the State’s duty to keep the roads safe, nor encourages it to take only ineffective preventive and remedial measures (Cl. Br. at 26-27, 34) by holding, as the Court of Claims originally did, that the State was negligent, but its negligence was not the proximate cause of the accident. If reasonable care requires the State to take a measure that would reduce the risk of an accident, its failure to do so is a basis for liability. By contrast, claimant’s theory would make the State liable even where its negligence did not materially increase the risk of the accident. This is not the law. Ernest v. Red Creek Cent. Sch. Dist., 93 N.Y.2d 664, 675 (1999); see also Tortora v. State, 269 N.Y. 167, 170 (1935) (observing that the mere happening of an automobile accident does not render the State liable). Claimant’s efforts to distinguish the cases cited by the State (Br. at 36-37) miss the mark. Contrary to claimant’s assertion (Cl. Br. at 30- 32), those decisions did not reject liability on the ground that conditions on the highway were in fact safe. Rather, they rejected liability on the ground that the accidents would have happened even if the defendant 16 had taken the measures that the plaintiffs proposed as reasonable, including placing or replacing a stop sign. These cases echo the conclusion the Court of Claims originally reached in this case: if the State had taken one or more of the identified incremental measures a reasonable custodian of the roads should have taken under the circumstances, the accident would have happened anyway. Claimant objects that the State’s view requires her to predict the future. (Cl. Br. at 23, 30.) The proximate-cause analysis naturally requires courts to ask what would have happened in the absence of negligence. Sheehan v. City of N.Y., 40 N.Y.2d 496, 502-03 (1976). Claimant’s burden was not to predict the future, but to satisfy the trial court that the remedial measures the State should have taken at the intersection would have reduced the risk of the April 2003 accident. While claimant declares that she is not an engineer who can predict the success of remedial measures (Cl. Br. at 36), in fact expert testimony on the effect of remedial measures is a fixture in highway negligence cases. See, e.g., Turturro v. City of N.Y., 28 N.Y.3d 469, 485-86 (2016); Friedman, 67 N.Y.2d at 285-87; Harris v. Vill. of East Hills, 41 N.Y.2d 446, 449 (1977). And indeed, at trial claimant called an engineer to opine 17 her behalf that a four-way stop sign would have succeeded inon preventing right-angle accidents at the intersection. (R275.) However, claimant did not convince the trial court that conditions in 1999 were so dangerous that the State should have skipped incremental steps and proceeded directly to a four-way stop sign, or alternatively, that conditions changed between 1999 and 2003 such that the State should have upgraded to a four-way stop sign. Where the one measure claimant identified as potentially effective was a measure the State had no duty to undertake, it cannot be said that the State’s “negligence” proximately caused the accident. Lastly, claimant now proposes reduced speed or speed bumps as additional measures that she claims would have reduced the risk of an accident. (Cl. Br. at 21 n.3.) This belated assertion contradicts her argument below that a four-way stop sign was the only reasonable measure (R593-95), and the time to raise such alternatives has long since passed. Scheemaker v. State, 70 N.Y.2d 985, 986 (1988) (declining to consider argument raised for the first time); Hartnett v. N.Y. City Transit Auth., 86 N.Y.2d 438, 445 (1995) (argument not raised in trial court is 18 unpreserved). In any event, her belated proposals lack evidentiary support. This Court should decline to consider them. POINT II ALTERNATIVELY, FAULT SHOULD BE APPORTIONED TO FRIEND In its main brief, the State argued in the alternative for the reapportionment of liability between the State and Henry Friend, the driver of the other vehicle involved in the accident.3 Claimant responds in large part by highlighting the standard of review for affirmed findings of fact. (Cl. Br. at 42-44.) See In re: Lavounte A., 12 N.Y.3d 832, 833 (2009) (there is “no valid line of reasoning that could lead a rational factfinder to the decision reached in this case”). The State set forth two reasons why no rational fact-finder could have found that Friend bore no fault for the accident. (State Br. at 47-57). Claimant’s contrary arguments do not rest upon rational inferences from the facts, but on unfounded assumptions. Despite agreeing with the legal rule that Friend had an obligation to see what was there to be seen by the proper use of his senses (Cl. Br. 3 Claimant disputes the State’s characterization that Friend “collided” with the motorcycle. (Cl. Br. at 7-8.) The question of who hit whom is irrelevant to the question of Friend’s negligence. 19 at 51), claimant contends that the evidence supports the inference that it was “impossible” for Friend to see the oncoming motorcycle. (Cl. Br. at 45, 51, 53.) But the evidence does not support that inference. Claimant’s expert testified that drivers looking south at the intersection could see the top third of an oncoming vehicle from 897 feet away, and see the entire vehicle from 550 feet away. (R297.) He did not qualify his opinion with commentary about the difficulty that these sight distances posed to drivers stopped on Paddy Lane, much less declare that oncoming vehicles were “effectively invisible” (Cl. Br. at 46.) Nor did he opine that the sight distances were insufficient to allow drivers at the intersection to observe and react to oncoming traffic. Indisputably the accident happened between five and ten seconds after Friend last looked south on Route 350. (R76) So ten seconds before the accident, the motorcycle already should have been in his line of sight, and five seconds later, it should have been fully visible. In the absence of testimony from her expert suggesting otherwise, the inferences that claimant draws are speculative. Claimant defends the lower courts’ reliance on prior accidents, asserting that the intersection’s sight-distance problems explain those 20 accidents just as they did her own accident in April 2003. (Cl. Br. at 45.) Claimant is mistaken. As the State argued in its main brief (State Br. at 52-53), prior accidents should not be used to rule out another party’s negligence. But even if they can be so used, then claimant may rely on them “only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same.” Hyde v. Rensselaer Cty., 51 N.Y.2d 927, 929 (1980). The record includes reports about the prior accidents on which she relies, and not a single report refers to any obstruction to drivers’ view looking south from the intersection; accordingly, she has not made this showing. Sawyer v. Dries & Krump Mfg. Co., 67 N.Y.2d 328, 336 (1986) (reversing where trial court allowed evidence of prior accidents without a showing of substantial similarity). Therefore, these accidents do not rule out Friend’s negligence. Claimant accuses the State of arguing in essence that the intersection was safe. (Cl. Br. at 46.) Not so. The State argues, as it did below, that Friend’s negligence was a partial, albeit significant, cause of the accident. Claimant’s all-or-nothing approach sidesteps the principle that an accident can have more than one proximate cause. Hain v. 21 Jamison, 28 N.Y.3d 524, 529 (2016) (holding that a farm could share liability for accident caused when a driver was hit as she exited her vehicle to assist a calf that escaped from its property). Claimant attacks the State’s discussion of Friend’s conviction as “disingenuous” because convictions for traffic infractions have no collateral estoppel effect (Cl. Br. at 49), but her argument is misplaced. The State never argued that collateral estoppel applies to Friend’s conviction. Rather, the State argued that the Court should read Ando v. Woodberry, 8 N.Y.2d 165 (1960), to allow Friend’s conviction for failure to yield the right of way under VTL § 1142(a) to serve as evidence of his negligence, subject to his or claimant’s ability to excuse his violation of the law. The importance of Friend’s conviction was not that it was incontrovertible proof of his negligence, but that it was in fact uncontroverted. Claimant attempts to distinguish Lohraseb v. Miranda, 46 A.D.3d 1266 (3d Dep’t 2007) and Rockman v. Brosnan, 280 A.D.2d 591 (2d Dep’t 2001) on the ground that those cases involved guilty pleas— something that the State has previously addressed (State Br. at 53-55)-— and that the parties who pled guilty could not recall critical facts. (Cl. Br. at 52.) 22 But the cases nonetheless stand for the proposition that in a subsequent negligence action, a party’s statement that he did not see the other vehicle does not excuse his earlier violation of the Vehicle and Traffic Law. Nor does claimant meaningfully challenge the State’s argument that there are facts aside from the conviction to demonstrate that Friend violated the Vehicle and Traffic Law. She fails to distinguish Horton v. Warden, 32 A.D.3d 570, 571-72 (3d Dep’t 2006), Murchison v. Incognoli, 5 A.D.3d 271 (1st Dep’t 2004), or Zadins v. S.K. Pommerville, 300 A.D.2d 1111, 1112 (4th Dep’t 2002), all of which the State cited for the proposition that where two vehicles collide in an intersection, the driver without the right of way violates VTL § 1142(a) regardless of whether he stopped before entering. She also tries to minimize the accident reconstructionist’s report. (Cl. Br. at 47, 51 n.ll.) But that report simply supports a set of facts that already shows that claimant failed to yield the right of way. And contrary to claimant’s attempt to justify the trial court’s unexplained about-face from its original finding (Cl. Br. at 47), that report remains “unrefuted” because claimant presented no evidence to the contrary. (See State’s Br. at 51-52, 56.) 23 In sum, claimant’s arguments fail to establish a valid line of reasoning by which a rational fact-finder may escape the conclusion that Friend bears at least some responsibility for the April 2003 accident. Accordingly, this Court should reverse the finding of 100% liability against the State, and remand for the lower courts to reapportion liability between the State and Friend. 24 CONCLUSION This Court should reverse the Fourth Department’s 2016 Memorandum and Order and dismiss the claims. Alternatively, this Court should reverse the Fourth Department’s 2016 Memorandum and Order and remit with instructions to apportion liability to Friend. Dated: October 6, 2017 Albany, New York Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant By: _ , JOIUTHAN D. HITSOUS Solicitor GeneralBARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General JONATHAN D. HITSOUS Assistant Solicitor General of Counsel Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 776-2044 Reproduced on Recycled Paper 25 AFFIRMATION OF COMPLIANCE Pursuant to the Rules of Practice of the New York Court of Appeals (22 N.Y.C.R.R.) § 500.13(c)(1), JONATHAN D. HITSOUS, an attorney in the Office of the Attorney General of the State of New York, hereby affirms that according to the word count feature of the word processing program used to prepare this brief, the brief contains 4,953 words, which complies with the limitations stated in § 500.13(c)(1).