Primeau v. Town of Amherst

Kehoe and Hayes, JJ. (dissenting).

We respectfully dissent. In our view, there should be an affirmance of the judgment entered upon the jury verdict rendered in favor of plaintiff on the issue of defendants’ liability. We take no issue with the majority’s conclusion that, because defendant Dennis P. Leising was engaged in snowplowing operations at the time of the accident, defendants can be held liable only if Leising operated the snowplow with reckless disregard for the safety of others (see Vehicle and Traffic Law § 1103 [b]; Riley v County of Broome, 95 NY2d 455, 465-466 [2000]; Bliss v State of New York, 95 NY2d 911, 913 [2000]). We disagree with the majority’s conclusion that there is no valid line of reasoning and permissible inferences supporting the jury’s finding that Leising acted with reckless disregard (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). We further reject the contention of defendants that the verdict is against the weight of the evidence on the issue of their liability. The evidence does not so preponderate in favor of defendants that the verdict could not have been reached upon any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]).

Here, there was testimony that Leising, admittedly “[essentially blind” in his left eye, did not turn his head as he admittedly would have had to do in order to ascertain whether any traffic was approaching from his left at the intersection where the accident occurred. There is also testimony that Leising never asked William E Walsh, Jr., his “wingman,” for assistance in keeping a lookout for such traffic. The majority concludes that, as a matter of law, Leising simply failed to apply his brakes in time to stop before reaching the intersection, thus inadvertently sliding past the stop sign. In making that legal determination, the majority relies on the testimony of Leising that he braked before reaching the stop sign, at a time when the snowplow was traveling only three or four miles per hour, but that the snowplow, instead of coming to a complete stop, “slid” “one or two feet” before colliding with plaintiffs car. In our view, the majority ignores Walsh’s testimony that the snowplow did not slide past the stop sign and into the intersection. There thus is evidence tending to establish that Leising entered the intersection without looking, heedless of the possible existence of traffic approaching from his left. In our view, such evidence is sufficient to support the jury’s finding that Leising acted recklessly, and the verdict is not against the weight of the evidence on that issue. Present—Hurlbutt, J.P., Scudder, Kehoe, Pine and Hayes, JJ.