New York Personal Injury Law Blog » Car Accidents, Car Collisions, FAQ-Personal Injury


March 19th, 2007

New York Car Accident — Can "Blacking Out" Excuse Negligence Per se?

A car crosses a double yellow line and causes a collision. As I noted last week, there is a presumption that the driver that crossed the lines is liable.

But here, a driver claims he “blacked out’ and that the presumption of liability against him is rebutted. Not so, says New York’s Appellate Division, Third Department last week, since the driver must still prove that such event happened:

Initially, we note that unexcused violations of the Vehicle and Traffic Law, such as crossing a double yellow line, constitute negligence per se. However, violations which give rise to negligence per se may be excused if the accident clearly results from an unforeseen and unexpected medical emergency. [Defendant’s] self-serving affidavit in which he asserts a belief that he “blacked out,”unsupported by any corroborating medical evidence, is simply insufficient to create any issue of fact regarding an unforeseeable emergency situation.

Once again a party is defeated by a failure to follow a basic principle of law: That in order to defeat a motion for summary judgment, evidence must be put forward admissible form.

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