State of New York
Supreme Court : County of Monroe

- against -

Index No. 2002/1376

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case arises from a multiple-vehicle accident on Interstate 490 caused by two wheels coming off a truck owned by the defendants; this truck had been converted to have four wheels on the rear axle instead of two. Traffic on the highway stopped as the wheels rolled across the road. One of the vehicles that stopped was driven by Anthony Blasio, who was originally named among the defendants, and plaintiff Samuel Webster, riding a motorcycle, ran into Mr. Blasio's vehicle from behind.

In an earlier motion the complaint was dismissed as against Blasio. The usual rule in rear-end collision summary judgment cases is that the party who strikes another from behind has a burden of explanation. His own act is prima facie negligence. He must therefore provide a non negligent explanation, showing that a question of fact exists that if resolved in his favor would result in a finding that the driver of the car he struck was himself negligent (see, e.g., Betts v Marecki, 247 AD2d 916). Since Blasio had not been shown to have stopped suddenly or to have acted in a negligent manner he was entitled to judgment in his favor. (A third driver, Elizabeth Hamm, was also let out of the case after it became clear that she had not been involved in any collision with the plaintiff.)

The Savarys, the remaining defendants, have now moved for summary judgment. Webster opposes on several grounds, relying in general on the doctrine of res ipsa loquitur. He also claims, on the strength of police testimony at an EBT, that the truck was too heavily loaded, and he raises many issues about Mr. Savary's truthfulness. The truck's inspection sticker was not on it some time after the accident, a circumstance Webster says is inadequately explained; Mr. Savary has supposedly concealed information and has lied about applying for a driver's license under the name "Sprague."

None of this is of any import. Whether Mr. Savary is unsavory or has the moral qualities of a saint is irrelevant to the question of his liability to Mr. Webster. There are substantial problems with Mr. Webster's arguments, and the court holds that summary judgment should be granted the defendants.

One issue arises with the question of proximate cause. Blasio was not the only driver who brought his car to a safe stop, and the Savarys' attorney has argued that Mr. Webster's failure to stop in time--a fact pointing to excessive speed, following too close, or both--is an intervening act of negligence that cuts off any liability the Savarys might have. Plaintiff's attorney argues that this would go to questions of comparative negligence. The court does not reach this issue, however, because it concludes that there is no evidence at all that the defendants were negligent.

Webster notes that Savary told the officer at the scene that the "dualie" wheels were added later, not installed by the factory. He states, inaccurately, that Savary knew the conversion was done improperly. In general he relies upon a Suffolk County case, Spica v Connor (56 Misc 2d 364) for the proposition that a wheel coming off a moving vehicle is a classic res ipsa situation.

But this is not a proper set of facts for the application of this rule. It is appropriate only in cases that meet two criteria. First, the instrumentality that caused the accident has to have been continually under the control of the defendant. Second, the accident must be such that it does not normally occur without someone's negligence.

In Spica the Judge indeed held that it was common knowledge that wheels do not come off vehicles without some negligence. This is not the case here. We know that the conversion from normal configuration to "dualie" had been done improperly, although this was not discovered until after the accident. (There was some discussion about the truck's being serviced by Pep Boys, but no indication that Pep Boys could or should have noticed the errors in the conversion, let alone that they told Mr. Savary of the problem.)

Mr. Savary had driven the truck for two years without incident. He had bought it from a private party in Greece with the doubled rear wheels already installed--to the best of his knowledge they had been installed by the owner before that one--and he testified that he did not know the spacer kit that had been used in the conversion was the wrong one until he had his truck towed to be repaired after the accident and the mechanic told him this. The truck had passed inspection and he had no indication that there was even a potential problem until the accident itself.

The negligence that caused the accident was thus in the conversion process, and there is no showing that Mr. Savary was negligent in failing to discover the problem. There is no res ipsa issue in this case. (See, Breese v Hertz Inc. 25 AD2d 621 [no res ipsa holding because theory was cotter pin had been sheared off, which def could not know]).

Mr. Webster raises one other issue: that the truck was loaded beyond capacity. This theory is based on the deposition testimony of the police officer who investigated the accident, who had once worked in a lumber yard. He estimated that it was carrying shingles weighing two tons, which he assumed was more than the maximum allowed weight.

The officer did not issue a ticket for this purported overweight problem. (He did not notice that the inspection sticker was missing either, something which the court assumes a trained police officer investigating an accident would consider relevant.) His was a rough estimate only, highly approximate and unreliable, and done by someone whose qualifications to give such testimony were slim at best. Nor did the plaintiff offer any proof as to the weight capacity of Mr. Savary's truck. At oral argument his attorney urged the court to consider the age of the truck, without providing any proof in admissible form that the size, age, condition or suspension of the truck was inappropriate for the load or that excess weight had anything to do with the accident itself. This, like much else in the plaintiff's case, is speculation. In response to a summary judgment motion speculation is without weight.

The defendants' attorney may prepare an order dismissing the complaint, with costs.

DATED: Rochester, New York

May 3, 2003

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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