Plaintiff, a Pedestrian, Was Injured When a Traffic Sign Struck by a Car Broke Off and Hit Her—County Owed Plaintiff a Duty to Properly Install the Sign—Question of Fact Raised Whether Improper Installation of a “Break Away” Sign Was a Proximate Cause of the Plaintiff’s Injuries

The Fourth Department determined the County had a duty to properly install traffic signs and that duty extended to plaintiff, a pedestrian severely injured when a traffic sign broke off and hit her after the sign post was struck by a car. The court further determined that a question of fact had been raised about whether any negligence in installing the sign was a proximate cause of plaintiff’s injuries:

“The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors” … . “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract … . An exception applies where the contracting party has ” entirely displaced the other party’s duty to maintain the premises safely’ ” … . Here, we conclude that the County’s duty to plaintiff arose from its comprehensive agreement with the City inasmuch as, pursuant to that agreement, the County has entirely displaced the City in fulfilling the City’s duty to be responsible for traffic signs … . Specifically, the County had a duty to properly reinstall the sign in October 1999, including using proper materials, installing the sign’s post at the appropriate depth in the ground on a proper base, and placing the sign at the required distance from the roadway. Moreover, that duty “extend[ed] to noncontracting individuals[, such as nearby pedestrians,] reasonably within the zone and contemplation of the intended [traffic engineering] services” encompassed by the County’s agreement with the City … .

…”[I]t is well settled that there may be more than one proximate cause of [an] accident” … . …[P]laintiff’s … expert raised an issue of fact … . Plaintiff’s expert opined in his opposing affidavit that the County improperly installed a breakaway signpost and that the accident would not have occurred but for that improper installation. Plaintiff’s expert also opined that the County’s negligence in installing the sign was a substantial factor in causing plaintiff’s injuries. Specifically, he opined that, had the sign been properly placed, it would not have struck plaintiff because its placement one foot above the ground created a risk that the sign would become a high-flying projectile if hit, rather than bending or projecting closer to the ground. We conclude that the court properly denied the County’s motion because the submission of conflicting expert opinions “present[ed] issues of credibility to be determined by the trier of fact” … . Honer v McComb, 2015 NY Slip Op 02662, 4th Dept 3-27-15