Barnes v. Parken

1

CYRUS BARNES, Plaintiff, v. WILLIAM I. PARKEN, Defendant.

No. 21 CV 9749 (VB)

United States District Court, S.D. New York

April 27, 2023

OPINION AND ORDER

VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE.

Plaintiff Cyrus Barnes, a detective in the Sullivan County Sheriff's Office (“SCSO”), brings this action under Section 205-e of New York General Municipal Law and Section 11-106 of the New York General Obligations Law, which permit police officers to bring tort claims for injuries sustained in the line of duty.^[1] Plaintiff alleges he responded to an automobile accident negligently caused by defendant William Parken, and that he suffered injuries to his back neck, and left knee while helping another driver exit her vehicle.

Now pending are the parties' cross-motions for summary judgment. Defendant seeks judgment dismissing the action in its entirety. (Doc. #56). Plaintiff seeks dismissal of defendant's affirmative defenses based on comparative fault, assumption of risk, and failure to establish a threshold injury under New York's no-fault law. (Doc #49).

For the reasons set forth below, defendant's motion is DENIED and plaintiff's motion is GRANTED IN PART and DENIED IN PART.

The Court has subject matter jurisdiction pursuant to 28 U.S.C § 1332.

BACKGROUND

The parties have submitted memoranda of law, declarations with exhibits, andstatements of undisputed material fact pursuant to Local Civil Rule 56.1, which together reflect the following factual background.^[2]

I. The Underlying Incident

On the morning of January 28, 2019, defendant turned left in front of an oncoming vehicle operated by non-party Molly Krivit on Route 17B in the Town of Thompson. Krivit, who was travelling at approximately fifty-five miles per hour (the applicable speed limit), was “going too fast to slow down to avoid” defendant's car, which was “right in front of” her. (Doc. #56-2 (“Krivit Tr.”) at 8). After the collision, Krivit's vehicle rolled onto its side.

At the time of the accident, plaintiff was on duty as a SCSO detective, in plainclothes, and happened to be driving an unmarked SCSO vehicle directly behind defendant. He and another on-duty plainclothes detective, Edward Clouse, were returning to the sheriff's station after dropping off Clouse's SCSO vehicle for repairs.

Immediately after witnessing the collision, plaintiff stopped his vehicle and turned on its emergency lights. Clouse radioed for emergency services while plaintiff went to check the drivers for injuries.

Plaintiff checked on defendant first. After defendant said he was “fine,” plaintiff and Crouse checked on Krivit. (Doc. #58-1 (“Pl. Tr.”) at 33-34). At that point, Krivit was still in her vehicle, which was tipped on its passenger side with the driver's side door facing up. She was extremely upset, as she saw blood in the vehicle but was unsure of its source, her “anxiety was so high, [she] couldn't quite figure out how to get out,” and gravity pulled her door closed each time she tried to open it. (Krivit Tr. at 11, 16, 25; see also Pl. Tr. at 41-42). According to plaintiff, Krivit was “freaking out” as she tried to open the door, screaming “Help” and “Get me out.” (Pl. Tr. at 34-35, 37). Plaintiff testified he “went to help get her out” because “she was going to hurt herself had she continued doing that.” (Id. at 34-35).

The parties dispute the nature and extent of the assistance plaintiff provided to Krivit, and whether plaintiff was injured while helping her.

Defendant contends plaintiff merely spoke to Krivit and guided her with his hand, and that plaintiff's complained-of injuries are not the result of helping Krivit, but rather a workplace incident from two years earlier. Defendant offers portions of Krivit's testimony in which she stated “[n]o one ever lifted me” and that when she jumped, plaintiff “maybe just . . . guided [her] down” with his hand on her arm. (Krivit Tr. at 12, 17). Defendant also notes the accident report, prepared by a uniformed officer at the scene, does not mention any injuries to plaintiff (Doc. #55-1 at ECF 2-5),^[3]and Krivit testified she did not remember plaintiff saying, or otherwise indicating, he was in any pain or discomfort. (Krivit Tr. at 30).

In addition, plaintiff testified, and a worker's compensation record reflects, that he tripped on the stairs at work in April 2017, twisting his back and his left knee (the “2017 Injuries”). (Pl. Tr. 17-24). Plaintiff received treatment for the knee injury on several occasions, and admitted he had occasional swelling and aching in his left knee in the month before the car accident. (Id. at 54-55). Defendant also points to a “Acupuncture- New Patient Information Form” filled out by plaintiff ten days after the accident, in which plaintiff refers to the April 2017 “fall on stairs” and a “2/4/19 - wrench upper back & neck,” but does not mention the January 28, 2019, accident. (Doc. #56-6 at ECF 2). Plaintiff's medical records also reflect degenerative changes in his knee and at multiple levels of his cervical spine. (Doc. #58-3 (“Pl. Expert Report”) at 2).

Plaintiff, on the other hand, offers evidence suggesting he helped Krivit get out of the vehicle and down to the ground, supporting some of her weight while doing so, and thereby exacerbated the 2017 Injuries. Plaintiff and Clouse both testified plaintiff climbed up the undercarriage of the vehicle, held Krivit's door open, and helped her climb out of the vehicle. (Pl. Tr. at 35-40; Doc. #55-6 (“Clouse Tr.”) at 8-9, 35-39, 49). Plaintiff further testified Krivit held onto his neck and torso as she climbed out, with plaintiff lifting her “slightly.” (Pl. Tr. at 39-40). And Krivit testified that because she was still “shaken up” and “scared to jump down” from the top of the vehicle, which was at least five feet from the ground, plaintiff “physically guided [Krivit] down,” supporting “some” of her weight with his shoulder and arm on their way to the ground. (Krivit Tr. at 12, 18, 21, 28-34, 40). Krivit's testimony on this point is corroborated by plaintiff and Clouse. (Pl. Tr. at 35-43; Clouse Tr. at 8-10, 33-42, 49-51).

Plaintiff testified he did not notice any pain while at the scene of the accident-he felt only “adrenaline” as he helped Krivit exit the vehicle and walked her to his car to wait for an ambulance. (Pl. Tr. at 43-45). A few minutes later, after emergency services arrived and Krivit got into the ambulance, plaintiff drove back to the station with Clouse. Plaintiff claims he started feeling pain about thirty minutes after returning to the station, and went to a nearby hospital to get checked out. (Id. 46-50). Plaintiff informed Clouse, who submitted a memorandum to SCSO Lieutenant Paul Pratti later that day, with the subject line “On duty injury to Det./Cpl. Barnes.” (Doc. #55-3). In the memorandum, Clouse provided a brief account of the assistance he and plaintiff provided after witnessing the accident, and advised Lieutenant Pratti that plaintiff “injured his back, supporting [Krivit] and her weight” while helping her to the ground. (Id.).

Dr. Mark Berman, an orthopedic surgeon retained as plaintiff's expert witness, opined “[a]s a result of this accident the cervical and lumbar spine worsened and [plaintiff] sustained a left knee lateral meniscus tear.” (Pl. Expert Report at 3). Dr. Berman noted plaintiff had “recovered” from the 2017 Injuries, such that he “had been working full duty” until the day of the accident. (Id. at 1). Dr. Berman concluded the assistance plaintiff provided to Krivit aggravated those preexisting 2017 Injuries and “directly caused” the meniscus tear, ultimately preventing plaintiff from working full duty and forcing him to retire. (Id. at 1, 3).

II. Defendant's Ticket and Guilty Plea

On January 28, 2019, defendant was issued a traffic ticket for violating Section 1441 of the New York State Vehicle and Traffic Law in connection with the collision. Section 1441 provides that “[t]he driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.”

Defendant pleaded guilty to the Section 1441 violation on February 13, 2019, in the Thompson Town Court. (Doc. #55-2).

DISCUSSION

I. Legal Standard

The Court must grant a motion for summary judgment if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A fact is material when it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary” are not material and thus cannot preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).^[4]

A dispute about a material fact is genuine if there is sufficient evidence upon which a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010). It is the moving party's burden to establish the absence of any genuine issue of material fact. Zalaski v. Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).

If the non-moving party fails to make a sufficient showing on an essential element of its case on which it has the burden of proof, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 323. If the...