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THE EVIDENCE SUPPORTED THE DEFENSE VERDICT IN THIS ALL-TERRAIN VEHICLE ACCIDENT CASE; TWO DISSENTERS ARGUED THE 14-YEAR-OLD DEFENDANT DRIVER ACKNOWLEDGED HIS NEGLIGENCE ON THE STAND (THIRD DEPT).

The Third Department, over a partial dissent, determined the jury verdict finding the 14-year-old defendant driver of an all-terrain vehicle (a Gator) was not negligent was supported by the evidence. The Gator overturned and the 16-year-old passenger was injured. The defendant’s and plaintiff’s descriptions of the accident conflicted. The dissenters argued the defendant acknowledged he was negligent when he testified:

The jury heard … conflicting testimony regarding how defendant was driving at the time of the accident, whether that driving was what led to the Gator tipping over and whether defendant had any reason to believe that his actions posed a risk of harm given the acknowledged stability of the Gator and the fact that he and plaintiff had already performed several donuts without incident. It was for the jury to resolve these factual questions and determine whether defendant “fail[ed] to use that degree of care that a reasonably prudent person would have used under the same circumstances” and engaged in conduct posing a reasonably foreseeable risk to others … . ….

From the dissent:

… [D]efendant testified that he was 14 years old on the day of the accident, that he was operating the John Deere Gator Utility Vehicle (hereinafter Gator) and performing a “donut” at the time of the accident. He described a donut as “the action of turning the wheel of the vehicle while pressing the accelerator in order to get the back wheels to spin out.” He stated that he knew that the Gator was not intended as a recreational vehicle and also testified that, although he was aware of the manufacturer’s safety warnings pertaining to limitations on speed, the use of seat belts and the prohibition of anyone younger than 16 years old driving the vehicle, he disregarded many of those warnings at the time of the accident. Finally, he testified that, although he had always operated the Gator safely in the past, his parents were angry with him after this accident “because [he] was driving [the Gator] in a manner that was inconsistent with [his] entire past.” When asked if this manner was unsafe, defendant simply stated “yes.” Wright v O’Leary, 2022 NY Slip Op 00485, Third Dept 1-27-22

 

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