Failure to Take Evasive Action Did Not Constitute Contributory Negligence

The Second Department explained that a driver faced with making a quick decision because another driver has failed to yield the right-of-way is not comparatively negligent:

[The driver of the car in which plaintiff was a passenger] entered the intersection where the collision occurred against a red traffic light, in violation of Vehicle and Traffic Law § 1110(a) …, and that this was the sole proximate cause of the accident. A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … .

* * * [The other driver’s] deposition testimony that she did not take evasive action in the seconds before impact did not raise a triable issue of fact. “[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” …, and ” was entitled to anticipate that the [other driver] would obey the traffic law requiring [her] to yield'” … . Joaquin v Franco, 2014 NY Slip Op 02904, 2nd Dept 4-30-14