        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1233
CA 11-01073
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


JOSEPH KUEBLER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CHARLES R. KUEBLER, DEFENDANT-APPELLANT.


KENNY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

THE HIGGINS KANE LAW GROUP, P.C., BUFFALO (TERRENCE P. HIGGINS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered December 8, 2010 in a personal injury action.
The order granted the motion of plaintiff for partial summary judgment
and denied the cross motion of defendant for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying that part of plaintiff’s motion for partial
summary judgment on the issue of comparative fault and as modified the
order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when the vehicle in which he was a passenger
left the roadway and struck a tree. The vehicle was operated by
defendant, plaintiff’s son, and plaintiff was aware that defendant had
only a learner’s permit. Within five minutes of leaving the parties’
residence at approximately 6:40 A.M., defendant fell asleep at the
wheel. According to plaintiff, defendant’s negligence in operating
the vehicle was the sole proximate cause of the injuries sustained by
plaintiff. Defendant raised plaintiff’s alleged comparative fault as
an affirmative defense pursuant to CPLR article 14-A.

     As limited by his brief, defendant appeals from the order insofar
as it granted that part of plaintiff’s motion for partial summary
judgment on the issue of comparative fault and denied defendant’s
cross motion for partial summary judgment on that issue. We conclude
that Supreme Court erred in granting that part of the motion with
respect to the issue of comparative fault, and we therefore modify the
order accordingly.

     A licensed driver supervising an unlicensed driver with a
learner’s permit owes a duty to use reasonable care as an instructor
(see Michalek v Martyna, 48 AD2d 1005), and he or she also owes a duty
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                                                         CA 11-01073

to take necessary measures to prevent negligence on the part of the
driver with the learner’s permit (see generally Lazofsky v City of New
York, 22 AD2d 858). Even assuming, arguendo, that plaintiff
established his entitlement to judgment as a matter of law on the
issue of comparative fault, we conclude that defendant raised triable
issues of fact by submitting evidence that, prior to the accident,
plaintiff was preoccupied with reviewing a list on a piece of paper.
In addition, plaintiff testified at his deposition that he did not
realize that the vehicle was leaving the roadway until he “felt the
right tire go off the shoulder,” and he was unable to estimate the
speed at which defendant was operating the vehicle. Based upon that
evidence, a jury could conclude that plaintiff had breached his duty
of care in supervising defendant’s operation of the vehicle and that
such culpable conduct diminished plaintiff’s recoverable damages (see
Pierson v Dayton, 168 AD2d 173, 176; Savone v Donges, 122 AD2d 34).

     We further conclude that defendant raised a triable issue of fact
whether plaintiff failed to use reasonable care in his capacity as a
passenger. Plaintiff’s “knowledge of the competency, ability, skill
and condition of [defendant] and [defendant’s] apparent awareness of
potential dangers” are all factors to be considered by the jury in
determining whether plaintiff used reasonable care or was
comparatively negligent (PJI 2:87). Here, defendant admitted that he
fell asleep at the wheel. We note that a passenger may be “negligent
in riding with an obviously sleepy driver” (Purchase v Jeffrey, 33
AD2d 620), and we have rejected the notion that “sleep sometimes
presses down without warning” (Kilburn v Bush, 223 AD2d 110, 115
[internal quotation marks omitted]).

     All concur except CARNI and LINDLEY, JJ., who concur in the result
in the following Memorandum: Although we concur in the result reached
by the majority, we write separately to address defendant’s
contention, with which we agree, that the culpable conduct of
plaintiff includes conduct that is properly characterized as implied
assumption of risk (see Arbegast v Board of Educ. of S. New Berlin
Cent. School, 65 NY2d 161, 170). It is well settled that “a plaintiff
who has been licensed by the State of New York to operate a motor
vehicle and who voluntarily accompanies a defendant, who has just
received a learner’s permit, in defendant’s car for the purpose of
teaching the defendant to drive, assumes the risk of the defendant’s
inexperience” (Le Fleur v Vergilia, 280 App Div 1035, 1035; see St.
Denis v Skidmore, 14 AD2d 981, affd 12 NY2d 901; Spellman v Spellman,
309 NY 663, 665). Although CPLR 1411, entitled “Damages recoverable
when contributory negligence or assumption of risk is established”
(emphasis added), eliminated implied assumption of risk as a complete
bar to recovery, the doctrine remains available to a defendant seeking
to diminish the damages recoverable by a plaintiff as a result of the
plaintiff’s own culpable conduct. Section 1411 makes it clear that,
insofar as relevant herein, there are two forms of culpable conduct
that may reduce a plaintiff’s recovery, i.e., contributory negligence
and assumption of risk (see Arbegast, 65 NY2d at 167). Thus, the
addition of article 14-A to the CPLR did not eliminate the implied
assumption of risk doctrine that the courts of this State have long
recognized and that defendant advances herein. CPLR article 14-A
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                                                         CA 11-01073

simply ameliorated the harsh rule that a plaintiff’s implied
assumption of risk served as a complete bar to recovery.

     We write to further clarify that, under the circumstances
presented here and assuming a sufficient quantum and quality of proof
at trial, the jury should be instructed to consider plaintiff’s
culpable conduct in the form of both contributory negligence (see PJI
2:87) and implied assumption of risk (see PJI 2:55). The jury should
be further instructed to consider collectively plaintiff’s acts as a
passenger and as a supervising driver “in order to fix the
relationship of each party’s conduct to the injury sustained”
(Arbegast, 65 NY2d at 168).




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
