Malstrom v. Mackey ( 1992 )

Mikoll, J.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Dickinson, J.), entered December 18, 1990 in Putnam County, which denied defendants’ motion for summary judgment dismissing the complaint.

On February 28, 1989, at approximately 6:00 to 6:15 p.m., Sherri Malstrom, then 11 years old, was riding her bicycle on the right shoulder of State Route 301, a two-lane road in the Town of Carmel, Putnam County. She was following 20 to 25 feet behind her 15-year-old brother, Gary, who was also riding a bicycle on the shoulder of the road. As they were riding, Sherri heard a car approaching from the rear and called to her brother "Gary, there is a car coming.” When the car passed her it was approximately 8 to 10 feet to her left. She then observed the car veer to the right and saw Gary’s bike fly up in the air. She continued riding her bike and then ran to Gary, who was laying in the road, bleeding from his mouth.

The driver of the car, defendant Patricia S. Mackey, said she did not see Sherri on her bicycle before the accident and only saw the bicycle that Gary was on out of the corner of her eye a split second before the impact. She also testified at an examination before trial that she had first come out of a curve and was traveling 40 miles per hour at the time, that the weather was clear and that it was dark out. Sherri stated that it was dusk at the time of the accident. This action was brought to recover, inter alia, damages due to emotional and psychological injury sustained by Sherri.

Supreme Court denied defendants’ motion for summary judgment dismissing the complaint, finding, that there were issues of fact as to whether Sherri was within the "zone of danger” as defined in Bovsun v Sanperi (61 NY2d 219) and "whether, being within the 'zone of danger’ she contemporaneously witnessed her brother’s injuries”. Defendants appeal.

There should be an affirmance. We cannot say as a matter of law that Mackey’s conduct did not create an unreasonable risk of bodily harm by placing Sherri within the zone of danger when Gary was struck by Mackey’s automobile or that the zone of danger had terminated before the impact. There are questions of fact to be resolved by a jury relating to the presence of curves in the road, the speed of Mackey’s vehicle, whether the headlights on the vehicle were lit, and whether it was dusk or dark out. Resolutions of these questions will determine if Sherri was within the zone of danger and entitled to a recovery (see, supra; see also, Hass v Manhattan & Bronx Surface Tr. Operating Auth., 170 AD2d 406, 407; DiMarco v Supermarkets Gen. Corp., 137 AD2d 651, 651-652).

Weiss, P. J., and Yesawich Jr., J., concur.