Court Denies Summary Judgment to Plaintiff Motorist Who Struck Excavator While It Was Being Moved In Roadway

In a decision dated March 13, 2023, the Hon. Ben R. Barbato of Bronx County Supreme Court denied the plaintiff’s motion for summary judgment on liability in a motor vehicle action.  The plaintiff was the operator of a vehicle involved in a collision with an excavator owned by our client, Skanska/Walsh Joint Venture.  The collision occurred at 4:00 a.m., after the plaintiff’s vehicle rounded a bend in the road and encountered the excavator making a turn into a driveway entrance at LaGuardia Airport from a designated left turn lane.  The plaintiff contends that the excavator initiated the turn when her vehicle was one car length away and the right front passenger side of her vehicle impacted the right front passenger side of the excavator; the excavator operator, William Webster, did not observe the plaintiff’s vehicle at any time prior to the collision and, due to the size and weight of the excavator, he was not alerted to the collision when it occurred.  The plaintiff argued that the excavator failed to yield the right-of-way and caused the collision by turning in front of her vehicle, in violation of Vehicle and Traffic Law §§1141 and 1163(a).  In its opposition to plaintiff’s motion, Skanska challenged the plaintiff’s inconsistent testimony as to how the collision occurred.  Skanska also submitted the affidavit of a motor vehicle accident reconstruction and traffic safety expert who concluded that the plaintiff’s account of how the collision occurred was physically impossible (e.g., the excavator would have exceeded its maximum acceleration rate to reach the point of impact) and the physical evidence supported the conclusion that the impact occurred when the front passenger side of the plaintiff’s vehicle struck the rear passenger side of the excavator in a glancing blow after the excavator had essentially completed its left turn.  Judge Barbato held that the plaintiff failed to satisfy her initial summary judgment burden because her own testimony raised issues of fact as to the circumstances of this incident (e.g., she could not recall where the collision occurred in relation to the bend in the road, the speed limit or whether she had to slow her vehicle prior to the collision).  The Court noted that, to the extent that the plaintiff alleged that the excavator had been stopped in the middle of the roadway when she first encountered it, there was an issue of fact whether she violated her duty of care to avoid the collision. The Court also admonished plaintiff’s counsel for repeatedly interrupting the plaintiff at her deposition in an attempt to rehabilitate the plaintiff’s comments or otherwise clarify the record.

Yorkina Torres-Martinez v. William Webster, et al., Index No. 20291/2021E (Sup. Ct. Bronx Co., Mar. 13, 2023)

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This post was written by Sander Rothchild