Campbell v. Central New York Regional Transportation AuthorityCampbell v. Central New York Regional Transportation Authority
It is hereby ordered that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the motion is denied in its entirety and the claim for personal injuries is reinstated.
Memorandum: While crossing a street in his highly customized wheelchair, plaintiff was struck by a bus owned by defendant and operated by one of its employees. The wheelchair was damaged beyond repair, and, as a result, plaintiff was forced to use a wheelchair loaned to him by a local medical center. That wheelchair was not customized for plaintiff’s “profound deformities” and, within two months, plaintiff developed “skin necrosis and abscess formation which required multiple surgical procedures to repair.” Plaintiff commenced this action seeking damages for those personal injuries as well as the replacement cost of his
We agree with plaintiff that the court should have denied defendant’s motion in its entirety. “As a general proposition, liability for negligence turns upon the foreseeability of any harm resulting from the careless conduct, not upon the foreseeability of the exact nature and extent of the injury which does in fact ensue” (Poplar v Bourjois, Inc., 298 NY 62, 67 [1948]), and “[t]he concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314 [1980], rearg denied 52 NY2d 784 [1980]). Thus, the Court of Appeals has stated that, “[g]iven the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established” (id. at 315; see Ziecker v Town of Orchard Park, 75 NY2d 761, 762-763 [1989]).
In order to establish a prima facie case, a “plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian, 51 NY2d at 315; see Kush v City of Buffalo, 59 NY2d 26, 32-33 [1983]). Although there are times when “[a]n interruption of the nexus between a defendant’s negligence and the plaintiff’s injury by the act of a third party may affect defendant’s liability” (Kush, 59 NY2d at 33), the intervening act must be “ ‘extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct’ ” (Maheshwari v City of New York, 2 NY3d 288, 295 [2004], quoting Derdiarian, 51 NY2d at 315). “When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist” (Kush, 59 NY2d at 33; see Derdiarian, 51 NY2d at 315). “Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, . . . these issues generally are for the fact finder to resolve” (Derdiarian, 51 NY2d at 315; see Kriz v Schum, 75 NY2d 25, 34 [1989]; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636 [1988]). Invariably, summary judgment is appropriate “where only one conclusion may be
In our view, defendant failed to establish its entitlement to judgment as a matter of law with respect to plaintiff’s claim for personal injuries because its submissions establish that there is a triable issue of fact whether the accident was a proximate cause of plaintiff’s injuries or whether an intervening act broke the causal nexus.
All concur except Hurlbutt, J.P., and Gorski, J., who dissent and vote to affirm in the following memorandum.
Hurlbutt, J.P., and Gorski, J. (dissenting). We respectfully dissent and would affirm the order granting defendant’s motion for summary judgment dismissing the complaint. We agree with Supreme Court that defendant established as a matter of law that its negligence was not a proximate cause of plaintiff’s skin necrosis or the formation of an abscess on plaintiff’s hip. It is undisputed that, as a result of the accident, plaintiff’s wheelchair incurred irreparable damage and had to be replaced. The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of