March 13th, 2007

Must Someone Be Negligent In Head-On Collision?

When cars collide head-on in New York, does at least one of them have to be negligent? A jury said no, and the trial court agreed. The case was brought by an injured passenger in one of the cars.

In a ruling last week, the Appellate Division Second Department reversed with this principle of law:

It has repeatedly been held that a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver’s own making, violates the Vehicle and Traffic Law and is guilty of negligence as a matter of law.

Here, the evidence presented at trial demonstrated that the statute was violated by either [car one or car two]. Neither party presented a non-negligent explanation for the accident. Rather, each defendant claimed that although it had been raining and/or sleeting for some time, she did not lose control of her vehicle. In any event, the adverse weather conditions were foreseeable and would not have provided a non-negligent excuse for the collision.

The case was sent back for a new trial. The decision in Sena v Negron is here.

March 5th, 2007

New York Car Accidents Kill Most Pedestrians At Only 10% of Streets

According to a story in today’s Daily News (Too many pedestrians dying on city’s meanest streets):

More than half of all pedestrian fatalities and injuries occur at 10% of city intersections, according to new data released by the advocacy group Transportation Alternatives.

A copy of the press release from the 4,000 member organization can be found here: Hundreds Rally to Demand Pedestrian Safety.

The story of so much death and injury coming from so few trouble spots reminds me of the medical malpractice problem we have, where 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments.

The tort “reformers” like to blame lawyers for the “litigation explosion.” Perhaps they should look to the source of the problems. The best way to decrease litigation is to repair or remove the instruments of injury and death.

February 26th, 2007

Car Accident Lawsuit, Based on Dumpster in Street, Dismissed by Appellate Court

In this personal injury case arising from a car accident, the driver apparently took a turn on a wet road at about 35 – 40 mph and hit a dumpster, of the type seen at right. The accident occurred in a “dimly lit” area that was “in a part of the street that cars would normally drive on.” While there was little doubt the driver was negligent, issues arose in this suit by a passenger as to the company that placed the dumpster:

Was the dumpster in the roadway?
Is there any liability due to the dumpster not having reflectors?

A divided panel of the Appellate Division, First Department held in Smalls v. AJI Industries that summary judgment should have been granted to the dumpster owner. In doing so, they seemed to be resolving issues of fact that properly belong to a jury. The dissent from Justice Tom has, in my opinion, the more persuasive argument:

Resolving several issues of fact as a matter of law, the majority concludes that because the driver was negligent in the operation of the motor vehicle, other defendants cannot be held accountable regardless of the location and condition of the dumpster. Because the record contains evidence that the dumpster was located “in a part of the street that cars would normally drive on,” and was unseen until virtually the moment of impact, a trier of fact could reasonably conclude that the owners of the refuse container were negligent in placing it in an unsafe location and failing to equip it with reflective tape or other markings to render it discernable to motorists. Thus, the question of defendants’ relative culpability in contributing to plaintiff’s injuries is properly reserved for trial.

Questions of fact need to be left for juries. Here, simply because one defendant had clear liability (speeding, losing control of his car), the court has taken the issue of liability away from someone else who may also share in the fault.