PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded plaintiff in this traffic accident case. Plaintiff’s decedent had run out of gas and was struck from behind by defendant. The Second Department held that plaintiff had not demonstrated freedom from comparative fault:

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To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that he or she was free from comparative fault … . Here, the plaintiff failed to meet that burden, as her own evidence, which included the defendants’ expert witness disclosure, raised triable issues of fact as to whether the decedent failed to warn other drivers of the hazard posed by his stalled vehicle, including by failing to keep his headlights illuminated, and, if so, whether such failure contributed to the defendant driver’s failure to see the decedent’s vehicle before the collision … . Palmer v Ecco III Enters., Inc., 2017 NY Slip Op 06446, Second Dept 9-13-17

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))