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

813
CA 14-02093
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND WHALEN, JJ.


ANDREW J. HAIN, INDIVIDUALLY, AND AS EXECUTOR
OF THE ESTATE OF HOLLY J. HAIN, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

ANGELA J. JAMISON, LEAH A. JAMISON,
DEFENDANTS-RESPONDENTS,
AND DRUMM FAMILY FARM, INC., DEFENDANT-APPELLANT.


BRIAN P. FITZGERALD, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

COUGHLIN & GERHART, LLP, BINGHAMTON (JAMES P. O’BRIEN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Steuben County
(Marianne Furfure, A.J.), entered August 15, 2014. The order denied
the motion of defendant Drumm Family Farm, Inc. for summary judgment
dismissing the complaint and cross claims against it.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs, the motion is granted and the complaint and
all cross claims against defendant Drumm Family Farm, Inc. are
dismissed.

     Memorandum: This personal injury and wrongful death action
arises from a motor vehicle accident in which plaintiff’s wife
(decedent) was struck on Curtis Coopers Road, in Steuben County, by a
vehicle driven by defendant Leah A. Jamison and owned by defendant
Angela J. Jamison (collectively, Jamison defendants). The parties
agree that decedent stopped her vehicle on the southbound side of that
road, facing south, and exited her vehicle. Plaintiff alleges that
decedent stopped her vehicle because a newly born calf that escaped
from a farm owned by defendant Drumm Family Farm, Inc. (Drumm Farm)
had wandered on or near the road, and decedent exited her vehicle to
assist the calf. The parties further agree that both decedent and the
calf were in the northbound lane when they were struck by the Jamison
defendants’ vehicle. Plaintiff contends that Drumm Farm was negligent
in allowing the calf to escape from its farm, and that such negligence
was a proximate cause of decedent’s death. We agree with Drumm Farm
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                                                         CA 14-02093

that Supreme Court erred in denying its motion for summary judgment
dismissing the complaint and all cross claims against it.

     Although “a landowner or the owner of an animal may be liable
under ordinary tort-law principles when a farm animal . . . is
negligently allowed to stray from the property on which the animal is
kept” (Hastings v Sauve, 21 NY3d 122, 125-126; see Sargent v Mammoser,
117 AD3d 1533, 1534), “liability may not be imposed upon a party who
merely furnishes the condition or occasion for the occurrence of the
event but is not one of its causes” (Ely v Pierce, 302 AD2d 489, 489,
lv denied 100 NY2d 505; see Castillo v Amjack Leasing Corp., 84 AD3d
1298, 1298-1299, lv denied 17 NY3d 711; see generally Sheehan v City
of New York, 40 NY2d 496, 503). Here, in support of its motion, Drumm
Farm established that any negligence on its part in allowing the calf
to escape merely “created the opportunity for plaintiff to be standing
[in the roadway], [but] it did not cause [her] to stand” there
(Hurlburt v Noble Envtl. Power, LLC, 128 AD3d 1518, 1519; see Akinola
v Palmer, 98 AD3d 928, 929). “In short, the [alleged] negligence of
[Drumm Farm] merely furnished the occasion for an unrelated act to
cause injuries not ordinarily anticipated” (Derdiarian v Felix Contr.
Corp., 51 NY2d 308, 316, rearg denied 52 NY2d 784; see Papadakis v HM
Kelly, Inc., 97 AD3d 731, 732; see generally Barnes v Fix, 63 AD3d
1515, 1516, lv denied 13 NY3d 716). Importantly, plaintiff does not
contend, and did not submit any evidence that would establish, that
the calf’s presence in the road blocked decedent’s ability to travel
in the southbound lane or otherwise forced decedent to stop her
vehicle. Thus, Drumm Farm established as a matter of law that its
“alleged negligent act, at most, caused the [calf to wander] out of
the field, which was not the immediate cause of the accident” (Lee v
New York City Hous. Auth., 25 AD3d 214, 219, lv denied 6 NY3d 708; see
Schiff v Possemato, 25 AD3d 839, 839-840), and plaintiff failed to
raise a triable issue of fact in opposition (see Gerrity v Muthana, 28
AD3d 1063, 1064, affd 7 NY3d 834; Wechter v Kelner, 40 AD3d 747, 748,
lv denied 9 NY3d 806).

     All concur except WHALEN, J., who dissents and votes to affirm in
the following memorandum: I respectfully dissent. Defendant Drumm
Family Farm, Inc. (Drumm Farm), as landowner and owner of the calf
that plaintiff’s wife (decedent) encountered on the roadway, may be
held liable for her injuries if it negligently allowed the calf to
stray from its property (see Hastings v Sauve, 21 NY3d 122, 125-126),
and its negligence was a substantial cause of the events that resulted
in decedent’s injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d
308, 315, rearg denied 52 NY2d 784; Pomeroy v Buccina, 289 AD2d 944,
945). Contrary to the majority, I conclude that triable issues of
fact remain whether Drumm Farm’s alleged negligence was a proximate
cause of the accident.

     There is no question that Drumm Farm owed a duty to keep its
livestock out of the roadway, and that a motor vehicle accident is
“within the class of reasonably foreseeable hazards that the duty
exists to prevent” (Sanchez v State of New York, 99 NY2d 247, 252; see
Hastings, 21 NY3d at 124-126; Sargent v Mammoser, 117 AD3d 1533,
                                 -3-                           813
                                                         CA 14-02093

1534). In my view, Drumm Farm failed to establish as a matter of law
that it should be relieved of liability for its alleged breach of that
duty because decedent’s conduct was “of such an extraordinary nature
or so attenuate[d] [Drumm Farm’s] negligence from the ultimate injury
that responsibility for the injury may not be reasonably attributed to
[Drumm Farm]” (Kush v City of Buffalo, 59 NY2d 26, 33).

     Nor did Drumm Farm establish as a matter of law that its alleged
negligence did not place decedent in an unsafe position on the roadway
by creating a hazard for her and other motorists (see Gardner v
Perrine, 101 AD3d 1587, 1588). It is impossible to determine from the
evidence in the record whether the calf was on the shoulder of the
road or in the travel lane, and thus it is equally impossible to
determine whether the calf’s presence placed decedent in a position of
danger. If the calf was in a position that forced decedent to stop
her vehicle on the curve of a dark country road, she would have been
in a “position of peril” (id.), regardless of whether she remained in
the vehicle. I cannot agree with the majority, moreover, that it was
plaintiff’s burden to submit evidence that the calf’s presence in the
roadway blocked decedent’s lane of travel or otherwise forced her to
stop her vehicle. Rather, it was Drumm Farm’s burden to eliminate, as
a matter of law, any causal link between its alleged negligence and
decedent’s death. Concluding that Drumm Farm met that burden
“requires the resolution of factual inferences in favor of [Drumm
Farm], which is improper on a motion for summary judgment” (Morris v
Lenox Hill Hosp., 232 AD2d 184, 185, affd 90 NY2d 953).

     In sum, “because the determination of legal causation turns upon
questions of foreseeability, and ‘what is foreseeable and what is
normal may be the subject of varying inferences, as is the question of
negligence itself, these issues generally are for the [factfinder] to
resolve’ ” (Kriz v Schum, 75 NY2d 25, 34, quoting Derdiarian, 51 NY2d
at 315). As Supreme Court properly determined, a jury should decide
whether the accident was a foreseeable consequence of Drumm Farm’s
alleged negligence. I would therefore affirm the order denying Drumm
Farm’s motion for summary judgment dismissing the complaint and all
cross claims against it.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
