Opinion
04 CV 3691 (GBD).
August 10, 2006
MEMORANDUM DECISION AND ORDER
Plaintiff Maria Cruz Garcia, a domiciliary of New York, alighted from the passenger side of a truck, crossed onto a road and was hit by a car. She seeks relief from the owners and lessees of the truck and the owner of the car for personal injuries and economic loss. She alleges negligence on the part of the following defendants: U.S. Food Service, Inc., the truck driver's employer who leased the truck ("employer-lessee defendant"); Penske Truck Leasing Company, the owner of the leased truck ("truck lessor defendant"); and Nissan-Infiniti, L.P., the owner of the leased car ("car lessor defendant").
Employer-lessee and truck lessor defendants bring action for contribution from the car driver, John Eckl, and from the car lessee, Andrea Eckl, his wife ("third-party defendants"). Third party defendants counterclaim and car lessor defendant cross claims for contribution against employer-lessee defendant and truck lessor defendant. Third party defendants also bring action for contribution against the driver of the truck, Wilfredo Benitez ("truck driver defendant"), who was at the time of the accident an employee of defendant U.S. Food Service, Inc.
Employer-lessee, truck lessor, third-party and car lessor defendants all move for summary judgment. Summary judgment is denied with respect to all defendants.
STATEMENT OF FACTS
Maria Garcia was a passenger in a truck owned by Penske Truck Leasing and leased to U.S. Food Service. The truck was driven by Wilfredo Benitez, Garcia's then-boyfriend and now husband. He was employed by U.S. Food Service to make deliveries. After making at least one delivery, in which Garcia claims to have assisted him, Benitez drove Garcia to the home where she worked as a housekeeper. He stopped the truck on Berry Hill Road in Oyster Bay, New York. He turned on his right directional signal and pulled the truck onto the shoulder of the road. Garcia alighted from the truck, walked in front of the truck to the road, continued across Berry Hill Road and was struck by a car as it came from behind the truck and passed it. (Police Accident Report, August 8, 2003). The car was owned by Nissan-Infiniti, L.P. It was leased to Andrea Eckl and was driven by her husband, John Eckl.
STANDARD OF REVIEW
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, the non-moving party is responsible for providing "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Rather than resolve disputed matters it may find in the record, the court's role is to determine the threshold question of whether any such dispute over a material fact exists. See Anderson, 477 U.S. at 249; see also Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1132 (2d Cir. 1989). When reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in favor of that party. See Schneider v. Feinberg, 345 F.3d 135, 144 (2d Cir. 2003).A. Employer-Lessee and Truck Lessor Defendants
Employer-lessee defendant moves for summary judgment arguing that it cannot be held liable under New York Vehicle and Traffic Law § 388 for Benitez's purported acts of negligence because Benitez violated express rules in the U.S. Food Service employee handbook prohibiting him from transporting unauthorized passengers. Additionally, the truck lessor defendant argues that a breach of the terms of the lease agreement between Penske Truck Leasing and U.S. Food Service which prohibit the employer-lessee and its drivers from using the leased truck for non-business purpose occurred. Those defendants therefore contend that the truck driver cannot be found to have operated the vehicle with either owner's permission as required by the statute.
New York State law defines the owner of a vehicle to include not only a party having title but also "any lessee . . . having the exclusive use thereof . . . for a period greater than thirty days." N.Y. Veh. Traf. Law § 128 (2006). As so defined, both Penske Truck Leasing and U.S. Food Service, Inc. were owners of the truck. New York State law also provides that a vehicle owner is liable for injuries that result when any person operates the vehicle with the owner's express or implied permission. N.Y. Veh. Traf. Law 388(1) (2006). This statute "altered the common-law rule that a vehicle owner could only be held liable for the negligence of a permissive driver under agency or respondeat superior theories." Murdza v. Zimmerman, 99 N.Y. 2d 375, 379 (2003). The statute creates a presumption that a driver has a vehicle owner's permission, but that presumption is rebuttable by substantial evidence that permission was not granted. See Murdza, 99 N.Y. 2d at 380 (citing Leotta v. Plessinger, 8 N.Y.2d 449, 461 (1960)). If evidence establishes that permission was granted only under certain types of conditions and that such a condition was breached, then an owner is exonerated from liability. See Leotta, 8 N.Y.2d at 459 (noting that a condition forbidding passengers, if violated, would relieve an owner of liability when an accident involving the passenger occurred subsequent to a breach of the restriction, while conditions forbidding carelessness or speeding would not).
In the instant case, employer-lessee defendant included in its employee handbook a condition forbidding passengers, as follows:
Only those persons expressly authorized by their Location Manager may be transported in any vehicle owned, rented, leased or utilized by the Company. Authorization to transport a person more than once must be in writing. Any person carrying unauthorized passengers will be subject to disciplinary action up to and including termination of employment.
(U.S. Food Service Associate Handbook p. 38) ("Handbook").
U.S. Food Service and Penske Truck Leasing argue that this policy and Benitez's signature on the "Associates Acknowledgment Form," which attested to his receipt and understanding of the policies and procedures in the Associate Handbook, rebuts the presumption that the truck was being operated at the time of the accident with their express or implied permission.
Although Benitez argues that he was unaware of the prohibition against passengers, there is substantial evidence in the record that Benitez knew of and violated the Handbook's policy against passengers. Indeed, "when Benitez was asked at his deposition if he could read and understand a copy of the Associates Acknowledgment Form that he signed, which attested to his receipt and understanding of the policies and procedures in the Associate Handbook, he actually read the form and stated that he was able to understand it." (Reply Mem. of Law of US Food Service, Inc. and Penske Truck Leasing Co. at 6 (citing Benitez Dep. 120:12-121:7)). Thus, plaintiff's argument that Benitez was unable to understand the restriction on passengers because the Handbook was written in English and Benitez does not read English well, is unsupported by the evidence.
Whether or not Benitez violated the policy against transporting passengers, however, is not dispositive on this motion. Garcia alleges negligence with regard to a pedestrian car accident which occurred after she exited the truck and was no longer a passenger:
Plaintiff alleges that the agent [Benitez] stopped a large truck on a small and windy high speed residential roadway thereby creating a dangerous condition to all vehicular and pedestrian traffic and the agent then directed his passenger to cross the roadway at this dangerous place. The defendants' truck obscured the passenger's ability to see the other vehicles and also obstructed the view of the operators of all oncoming traffic. The agent violated, among other things, his duty under New York Law to provide a safe place to alight.
(Amended Complaint, Preliminary Statement).
Thus, U.S. Food's policy against passengers and Benitez's violation of that policy do not as a matter of law irrefutably rebut the presumption of the driver's authorized operation of the truck at the time of the accident, since the accident occurred not while Garcia was a passenger in the truck, but after she had exited the vehicle and was a pedestrian crossing the roadway.Cf. Goldberg v. Borden's Condensed Milk Co., 227 N.Y. 465, 467 (1920) (holding that "defendant was not responsible for injuries caused by the driver's negligence while plaintiff was thus riding" when the driver had "no authority to invite the plaintiff to ride; in fact he was acting contrary to express orders of his employer") (emphasis added); Conca v. Cushman's Sons, Inc., 227 A.D. 360, 362-63, 100 N.Y.S.2d 212, 214 (1950) (citing Goldberg, 227 N.Y. at 467) (holding that "defendant would not be liable for the injuries caused by the driver's negligence while plaintiff was thus riding") (emphasis added).
If it is determined that Benitez acted negligently by obstructing the view of oncoming traffic and directing Garcia to cross the roadway, his negligence could be imputed to the owners of the truck under N.Y. Veh. Traf. Law § 388 if, at the time, he was using or operating the vehicle with their express or implied permission. Indeed, "the vehicle need not be the proximate cause of an injury before the vehicle's owner may be held vicariously liable." Argentina v. Emery World Wide Delivery Corp., 188 F.3d 86, 88 (2d Cir. 1999). It remains a jury question whether Benitez negligently used and operated the truck with his employer's permission when the accident occurred. There are therefore material issues of disputed fact as to whether Benitez acted negligently, and whether he was operating the truck with either the express or implied permission of the owners at the time of the accident. See Leotta, 8 N.Y.2d at 461 ("even where the owner may escape liability, it is unquestionable that, unless the evidence adduced has no merit whatsoever, the question of consent and authority is for the jury") (emphasis in original) (internal citations omitted).
In addition to the argument that Benitez's violation of the no passenger policy rebuts the presumption of permissive use, truck lessor defendant argues that Benitez's conduct violated the lease agreement between U.S. Food Service and Penske Truck Leasing because he deviated from his route to drive Garcia to her destination. The Vehicle Lease Service Agreement required that "[c]ustomer shall use each Vehicle only in the normal and ordinary course of its business and operations and in a careful, non-abusive manner, and not beyond the Vehicle's rated capacity, and Customer shall not make any alterations to the Vehicle without Penske Truck Leasing's prior written consent." (Vehicle Lease Service Agreement ¶ 7 "Vehicle Use and Drivers"). Truck lessor defendant argues that, by driving Garcia to her place of employment, Benitez used the lessor's truck in a way that exceeded the "normal and ordinary course" of business, thus overcoming the presumption of permissive use and relieving the truck lessor of liability as a matter of law.
New York courts, however, have long found that determining whether a servant is on his master's business is a difficult task that "creates troublesome questions." Bindert v. Elmhurst Taxi Corp., 168 Misc. 892 (1938). For example, an employee who serves his own purpose at work may still be considered to be doing his employer's business. See Quinn v. Power, 87 N.Y. 535 (1882) (finding a Hudson River ferry owner liable in the death of a passenger in a collision where the ferry pilot had stopped mid-river to drop off a boatman, as a favor). An employee who stops doing his employer's work and then resumes it again may be found to have moved back within the scope of his employment.See Riley v. Standard Oil Co., 231 N.Y. 301 (1921) (finding that the driver of a truck loaded with goods for his employer, after going a short distance out of his way to take some scrap wood to his sister's home, was again engaged in his employer's business once he unloaded the wood and turned back toward his work). Such determinations defy mechanical tests. See Bryan v. Bunis, 208 A.D. 389 (4th Dep't 1924) (discussing various deviations from work by employees who nonetheless were found to be within the scope of their employment). In the instant case, when the accident occurred, Benitez had been making deliveries on behalf of his employer (Benitez Dep. 43:3-15), had dropped off Garcia, and intended to then continue on and make his remaining deliveries (Benitez Dep. 50:11-14). "Because the determination of whether a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury." Rivello v. Waldron, 47 N.Y.2d 297, 303 (1979). A reasonable jury weighing the facts of this case could find Benitez to have been acting within the scope of his employment at the time of the accident. Moreover, Benitez was an employee of U.S. Food Service, not Penske, nor was he a party to the U.S. Food Service — Penske lease agreement whose terms are claimed to be violated. Accordingly, U.S. Food Service and Penske Truck Leasing's motion for summary judgment is denied.
B. Car Lessor Defendant and Third-Party Defendants
Third-party defendants, the Eckls, argue that John Eckl, was not negligent as a matter of law since "[a] fraction of a second before Mr. Eckl's vehicle made contact with the plaintiff, he first saw the plaintiff running across the street" and that they are therefore, entitled to summary judgment. (Mem. of Law at 1). Car lessor defendant, Nissan, similarly argues that it is entitled to summary judgment as a matter of law since "the owner of the vehicle's potential liability is merely vicarious to that of the driver of the vehicle" and the driver was not negligent. (Id. at 2) (citing Hammibal v. Kimbeni, 289 A.D.2d 446, 735 N.Y.S.2d 567 (2d Dept. 2001)). Summary judgment, however, is only appropriate if after resolving all ambiguities and drawing all reasonable inferences in favor of the non-moving party the Court finds that the moving party has demonstrated "the absence of any material factual issue genuinely in dispute." See Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975).
Third-party and car lessor defendants have failed to demonstrate an absence of material issues of disputed fact. Indeed, the observations of a non-party witness differ from those of the driver, John Eckl, and raise triable issues of fact. The driver testified that he first saw plaintiff at the moment of impact (Eckl Dep. 43:15-19, January 18, 2005) ("Eckl Dep.) or a fraction of a second before (Dep. 38:7-18). However, the non-party witness, driving behind him, saw plaintiff get out of the truck and saw her "standing in front of the truck, walking across the street" (Piechucki Dep. 7:4-7, August 2, 2005) ("Piechucki Dep.") and "being happy as she was walking across the street" (Piechucki Dep. 53:13-20). In their brief, car lessor and third-party defendants argue that Eckl could not have been negligent as a matter of law because plaintiff darted into street a "fraction of a second" before he hit her. (Mem. of Law at 1). However, the driver's own deposition testimony states that, in order to get around the Benitez truck which extended approximately three feet into his lane of traffic he had to "swerve a little, crossing the yellow line" (Eckl Dep. 35:23-24). Third-party defendant Eckl's own testimony, coupled with the nonparty witness' testimony that he both saw Garcia standing in front of the truck and happily walking across the street presents material issues of disputed fact as to how far Garcia had progressed across the street, how long she had been crossing the roadway before Eckl saw her, and therefore, whether or not Eckl was negligent for failing to see Garcia, brake, or avoid the collision.
Third-party and car lessor defendants' reliance on Miller v. Sisters of the Order of St. Dominic, 262 A.D.2d 373, 691 N.Y.S.2d 168 (2d Dep't 1999) and Gonzales v. 98 MAG Leasing Corp., 95 N.Y.2d 124 (2000) is misplaced. In Miller, there was uncontested testimony offered on behalf of the defendant by witnesses who first saw the injured plaintiff at the same moment as the driver, and the plaintiff was unable to present sufficient evidence of negligence on the part of the driver to raise a triable issue of fact. Similarly, in Gonzalez, the New York Court of Appeals upheld summary judgment where the motion was supported by the sworn statements of witnesses, and where "conclusory assertions proffered by plaintiff's accident reconstruction expert" were insufficient to defeat it. 95 N.Y.2d at 124. In the instant case, however, the non-party witness observations differ from those of the driver, raising triable issues of fact. Finally, that witness testified that he and the driver were both traveling up to 38 miles per hour in a 35-mile-per-hour zone (Piechucki Dep. 8:24-25), and the police accident report noted a wet road condition. (Eckl Dep. 17:2-19:9). The conflicting testimony raises genuine material issues of fact as to what Eckl saw prior to hitting Garcia, how fast Eckl was traveling at impact, whether Eckl acted reasonably under the circumstances presented, and whether Eckl's actions were the proximate cause of plaintiff's alleged injuries. A rational jury could find that negligence on the part of the driver was causally related to Garcia's injuries. Accordingly, the Eckls' and Nissan's motion for summary judgment is denied.
CONCLUSION
All defendants' motions for summary judgment are denied.