20 Misc. 2d 932 | N.Y. Sup. Ct. | 1959
Motion by plaintiffs for summary judgment on the issue of liability in an action for negligence.
At a hearing conducted by the Motor Vehicle Bureau, defendant testified as follows:
‘ ‘ Q. What caused you to run into this vehicle ? A. As far as I know, I fell asleep.
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“ Q. Had you been feeling drowsy at all? A. No, not that time there.
“ Q. When had you last been asleep before this accident? A. It was the previous night.
“ Q. What time did you get up that morning? A. 6:30.”
Defendant does not dispute the foregoing facts. He claims that he fell asleep at the wheel of his car without any prior indication or knowledge of drowsiness or tiredness on his part. His attorney urges that an operator of a motor vehicle is not negligent as matter of law when he falls asleep at the wheel while driving; that falling asleep under such circumstances creates merely an inference of negligence ‘ ‘ which, if rebutted, would justify a verdict for the defendant ” (emphasis supplied).
Although a driver’s falling asleep at the wheel of his automobile is unfortunately not a rarity, surprisingly little decisional law exists in this State concerning his liability for falling asleep. A driver, of course, is not liable for his negligent operation of an automobile while asleep. (Cf. Goldman v. New York Rys. Co., 185 App. Div. 739, 741.) Movements of the body “ during sleep when the will is in abeyance are not acts,” according to the Restatement of Torts (§ 2, Comment a) because " There cannot be an act without volition.”
Permitting himself to fall asleep while driving, however, has been held to give rise to an inference or presumption of negligence sufficient to make out a prima facie case against the driver. (Mochnal v. Pegos, 257 App. Div. 890, 891; Baird v. Baird, 223 N. C. 730, in which the law of New York was applied by the courts of North Carolina since the accident underlying the action occurred in New York.) The rationale for this rule, as stated in the American Law Reports (Ann. 28 A. L. R. 2d,
The presumption of negligence arising from a driver’s falling asleep at the wheel of his automobile is, as contended by the attorney for the defendant herein, rebuttable by proof of the circumstances under which he was operating it. Such proof ‘ ‘ creates an issue of fact regarding due care. The question then becomes one of credibility for a jury properly charged that sleep usually does not come on unannounced and unforetold.” (28 A. L. R. 2d 48, supra.) As was said in Bernosky v. Greff (supra, p. 61): “ For a driver to sleep at the wheel of a moving automobile makes him prima facie guilty of negligence. If there are any facts which under the circumstances tend to exculpate him from the charge of negligence, the burden of producing them is upon him.”
Thus in Goldman v. New York Rys. Co. (185 App. Div. 739, supra), relied upon by the defendant, the Appellate Division, in reversing the dismissal of the complaint at the close of the case by an injured plaintiff to recover damages for personal injuries sustained when a streetcar motorman fainted in his car causing a collision, stated (p. 741): “Under these conditions and with these warnings, whether this motorman exercised reasonable care in continuing to run this car was, I think, a question of fact which should have been submitted to the jury.” In that case, however, the defendant rebutted the presumption of negligence by affirmative proof on the part of its motorman that on the downtown trip he had two dizzy spells where things became dark before his eyes; that these spells passed away quickly; and when asked if he was able to operate his car when he had these sensations, his answer was (p. 741): “ ‘ Just as I should, I don’t suppose so. I didn’t feel just as I should,’ and that the darkness interfered with the operation of his car a little bit.”
In the case at bar, however, defendant has made no attempt in his opposing affidavit to come forward with facts to rebut the inference of negligence clearly established by the moving papers. Having failed to show that he has any evidence of circumstances in excuse or justification of his conduct in falling asleep behind the wheel of his moving automobile, defendant has not rebutted
That the question of defendant’s liability has been posed upon a motion for summary judgment rather than upon a trial does not absolve the defendant from the necessity of producing facts rebutting the inference of negligence. Both under rule 113 of the Rules of Civil Practice as recently amended and as it existed prior thereto, the party opposing the motion must “ assemble and reveal his proofs in order to show that the matters set up in his answer [are] real and * * * capable of being established upon trial.” (Dockwell & Co. v. Silverman, 234 App. Div. 362, 363; Phelan v. Houghton, 16 Misc 2d 227, 229.) The crucial question upon plaintiffs’ motion is whether the defendant has shown in his opposing papers any basis for his claim that there exists a triable issue of fact. The presentation, as in this case, of a mere point of view or a perfunctory conclusion is insufficient; the showing of the existence of a genuine triable issue must be substantial and factual. (Circle Floor Co. v. Totonelly Sons, 282 App. Div. 179, 181.)
With scientific recognition that sleep is a gradual process and that it does not ordinarily come upon a driver of a moving automobile without warning (The Case of the Sleeping Motorist, 25 N. T. U. L. Rev., supra, pp. 364-366), that “by watching for indications of its approach, or heeding circumstances which are likely to bring it about, one may either ward it off or cease an activity capable of danger to himself or to others ” (Bushnell v. Bushnell, supra), it cannot be held that it is enough for a defendant to defeat plaintiffs’ motion for summary judgment by stating merely that ‘ ‘ without any prior indication or knowledge of drowsiness on my part, I fell asleep at the wheel of my car.”
The law must meet adequately the demand of today’s living-conditions. It would fail of its purpose if it should indulge in the luxury of applying unrealistic theories at the expense of practical justice. With ever-increasing powerful automobiles crowding modern parkways and highways around the clock, can it be said that the law that requires a driver to keep to the right, observe all traffic signals and keep his vehicle always under control, must afford him a full plenary trial when he offers no explanation for falling asleep at the wheel Avhen called upon to do so by his innocent victims seeking speedy redress for injuries sustained when hit by the driverless moving automobile (see for an even stronger vieAV “ The Case of the Sleeping- Motorist,”
The motion is accordingly granted and the cause set down for an assessment of damages as provided by rule 113 upon compliance with the statement of readiness rule and the payment of all calendar fees.
Submit order.