Dunmore v. United States of America
ORDER denying 33 Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on August 12, 2013. (MES)
Dunmore v. United States of America
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PORSCHA C. DUNMORE,
DECISION AND ORDER
UNITED STATES OF AMERICA,
action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 26712680 seeking damages for injuries sustained following a motor
vehicle accident involving a vehicle operated by an United States
Postal Service (“USPS”) employee and another vehicle which struck
Plaintiff as she was attempting to get into her parked vehicle.
Plaintiff moves for summary judgment contending that the USPS
employee, Tom LoBiondo (“LoBiondo”), was negligent and that his
actions were the sole proximate cause of the accident.
the United States of America (“Defendant”), opposes the motion
contending that there are material issues of fact which preclude
summary judgment on the issue of proximate cause.
Therefore, the Plaintiff’s motion for summary judgment is
The following facts are taken from the parties’ submissions
pursuant to Local Rule 56(a) and the Court’s review of the entire
On January 3, 2011, Plaintiff was struck by a vehicle
operated by Dimarys Ruiz (“Ruiz”) after the vehicle driven by Ruiz
was struck by a USPS vehicle operated by LoBiondo.
occurred at an intersection controlled by a traffic signal.
had the right of way and LoBiondo struck her vehicle after entering
the intersection in an attempt to make a right turn through a red
LoBiondo stopped at the red light and he testified that he
first looked right then left before entering the intersection to
make the turn.
He did not see Ruiz’s vehicle until he collided
with it in the middle of the intersection.
The left bumper of the
USPS vehicle struck the center of the right side of Ruiz’s vehicle
between the passenger doors.
Plaintiff was struck while entering her parked vehicle on the
right side of Ruiz’s vehicle.
Plaintiff suffered a serious injury
LoBiondo testified that he saw Ruiz’s vehicle move left and
then turn to the right.
Ruiz testified that when her vehicle was
struck on the right side the vehicle was pushed to the right.
testified that she attempted to avoid the accident by breaking and
steering the car to the left. However, the accident happened
quickly and she was unable to avoid hitting the Plaintiff.
Rule 56(a) of the Federal Rules of Civil Procedure provides
that summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” See Fed. R. Civ. P.
favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
is appropriate. See Scott v. Harris, 550 U.S. 372, 379 (2007)
(citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587.).
To prevail on her claim against the Defendant, Plaintiff must
prove that LoBiondo was negligent and that his negligence was the
sole proximate cause of her injuries. See Steiner v. Dincesen, 95
A.D.3d 877, 877 (2nd Dep’t 2012). Here, Defendant contends that
there are questions of fact relating to whether LoBiondo’s actions
Defendants do not appear to contest that LoBiondo was negligent;
rather, they contend that there are issues of fact as to whether
Ruiz’s actions following LoBiondo’s collision with her vehicle
contributed to the accident.
A reasonable jury could conclude that LoBiondo pushed Ruiz’s
car to the left and that Ruiz’s attempt to correct her position
forced her car to the right.
Even if Ruiz had the right of way,
she “may be found to be comparatively negligent in causing an
accident if [she did] not use reasonable care” to avoid the
collision with the Plaintiff. Id.
Further, even if LoBiondo “was
negligent as a matter of law for violating the [New York] Vehicle
and Traffic Law...there may nevertheless be more than one proximate
cause of a traffic accident.” Id. (citing Gause v Martinez, 91
A.D.3d 595 (2nd Dep’t 2012); Lopez v Reyes-Flores, 52 A.D.3d 785,
786 (2nd Dep’t 2008)). “The proponent of a summary judgment motion
has the burden of establishing freedom from comparative negligence
as a matter of law. [T]he issue of comparative fault is generally
a question for the trier of fact.” Gause v Martinez, 91 A.D.3d 595
(2nd Dep’t 2012)(internal citations omitted).
The Court finds that there are questions of fact as to whether
LoBiondo’s failure to yield the right of way to Ruiz was the sole
proximate cause of Plaintiff’s injuries. Accordingly, Plaintiff’s
motion for summary judgment is denied.
For the reasons stated herein, the Court finds that there are
Accordingly, the Plaintiff’s motion is denied.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HON. MICHAEL A. TELESCA
United States District Judge
Rochester, New York
August 12, 2013
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