THE MAJORITY CONCLUDED PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS FATAL VEHICLE-PEDESTRIAN ACCIDENT CASE BECAUSE DECEDENT’S ALLEGED CONTRIBUTORY NEGLIGENCE DOES NOT BAR SUMMARY JUDGMENT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER DECEDENT’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).
The Fourth Department, over a dissent, determined plaintiff was entitled to summary judgment in this fatal vehicle-pedestrian accident case. The majority held that any negligence on the part of plaintiff’s decedent constituted comparative negligence which is no longer a bar to summary judgment. The dissent argued there was a question of fact whether decedent’s actions constituted the sole proximate cause of the accident, which would preclude summary judgment:
We respectfully disagree with the dissent that the evidence submitted by plaintiff failed to establish proximate causation. The only facts that defendants cite for the proposition that plaintiff failed to meet his burden arise from decedent’s actions, i.e., crossing outside a marked crosswalk and wearing dark clothing as daylight faded. The Court of Appeals has made clear, however, “that a plaintiff’s comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages” … . Thus, “to obtain partial summary judgment on defendant’s liability[, a plaintiff] does not have to demonstrate the absence of his [or her] own comparative fault” … .
… [P]laintiff was therefore not required to establish that decedent was not negligent, rather he was required to demonstrate that defendant was negligent and that such negligence was a proximate cause of decedent’s injuries … .
From the dissent:
Even assuming … the majority is correct that the issue of proximate cause was raised by plaintiff and that plaintiff met his burden with respect to that element, I conclude that defendants raised a triable issue of fact in opposition. Defendants presented evidence that plaintiff’s decedent was crossing … outside of a designated crosswalk, at dusk, with headphones and dark clothing on and without looking for oncoming traffic. … [D]efendants contend that decedent violated Vehicle and Traffic Law § 1152 (a). Consequently, even though defendants were negligent as a matter of law based on an unexcused violation of Vehicle and Traffic Law § 1146 (a), on this record, a jury could find that decedent’s actions were the sole proximate cause of the accident … . Lowes v Anas, 2021 NY Slip Op 03973, Fourth Dept 6-17-21