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Pedestrian Struck from Behind Was Not Comparatively Negligent as a Matter of Law

The Second Department, over a dissent, determined plaintiff pedestrian, who was struck from behind by defendant’s car, was free from comparative negligence as a matter of law and entitled to summary judgment. Plaintiff was properly crossing a street and had almost reached the other side when defendant, who was making a left turn into the street plaintiff was crossing, struck plaintiff from behind. Because plaintiff could not have seen defendant’s car before she was struck, there was no possibility she was comparatively negligent:

The deposition testimony of the injured plaintiff and a nonparty witness established that prior to entering the roadway, the injured plaintiff waited for the traffic light controlling the east-west traffic on Montauk Highway to turn red, then looked to her left and right, and, seeing no cars, started to walk southbound across Montauk Highway. The testimony further established that the injured plaintiff traversed the westbound left-turn lane, and while in the eastbound lane of Montauk Highway, having almost completed crossing, was struck by the defendants’ vehicle, which had turned left from Keith Lane to proceed east on Montauk Highway. Significantly, this testimony established that, prior to the impact, Karen Kruse (hereinafter the defendant driver), started her approach to the point of impact from behind and to the right of the injured plaintiff, that is, from behind the injured plaintiff’s right shoulder and out of her view. The defendant driver conceded in her deposition testimony that she did not see the injured plaintiff prior to impact, despite the fact, established by her own testimony, that the injured plaintiff was generally in front of her prior to the impact. Under these circumstances, the plaintiffs established that the defendant driver was negligent and that the injured plaintiff was free from comparative fault. Castiglione v Kruse, 2015 NY Slip Op 06306, 2nd Dept 7-29-15

 

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