Emotional Injury Can Constitute “Serious Injury” Within the Meaning of the Insurance Law/On-coming Car Crossed Into Plaintiffs’ Lane—Plaintiffs Entitled to Summary Judgment (Re: On-coming Driver’s Negligence Cause of Action) Under the Emergency Doctrine

The Fourth Department noted a question of fact had been raised about whether post-traumatic-stress disorder constituted a serious injury within the meaning of Insurance Law 5102 (d).  Plaintiffs, husband and wife, were struck head-on when an on-coming car crossed into plaintiff’s lane.  The driver of the on-coming car was trying to avoid a deer which ran into the road. The court also determined plaintiffs were entitled to summary judgment dismissing the other driver’s negligence action based upon the emergency doctrine, even in the absence of expert evidence:

“[A] causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury” …, and posttraumatic stress disorder (PTSD) “may constitute such an injury when it is causally related to a motor vehicle accident and demonstrated by objective medical evidence” … . Moreover, “PTSD may be demonstrated without diagnostic testing for purposes of Insurance Law § 5102 (d) by symptoms objectively observed by treating physicians and established by the testimony of the injured plaintiff and others who observe the injured plaintiff” … .

Even assuming, arguendo, that plaintiffs met their initial burden on the issue of serious injury, we conclude that defendants raised an issue of fact sufficient to defeat the motion by submitting the records of [plaintiff’s]  psychologist … . * * *

“Under the emergency doctrine, “when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency” ‘ … . It is well established that a driver is not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel’ ” … . * * * The vehicle operated by decedent entered [plaintiff’s] lane of traffic without warning, and [plaintiff]  applied his brakes and swerved to the right as soon as he saw decedent’s vehicle cross into his lane. The absence of expert evidence on this issue is of no moment inasmuch as, “[i]n a cross-over collision case, a defendant [or a plaintiff seeking dismissal of an affirmative defense] may meet the burden of establishing entitlement to summary judgment [or dismissal of the affirmative defense] under the emergency doctrine even when [t]he only evidence in the record concerning [the movant’s] conduct’ is [his or her] own [deposition] testimony” … . Hill v Cash, 2014 NY Slip Op 03058, 4th Dept 5-2-14