STRIKING A PEDESTRIAN IS NEGLIGENCE PER SE; FAILING TO SEE WHAT THERE IS TO SEE IS NEGLIGENCE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT TO BE CONSIDERED; PLAINTIFF PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian-vehicle traffic accident case should have been granted. Striking a pedestrian is a violation of the Vehicle and Traffic Law which is negligence per se. In addition a driver is expected to see what there is to be seen. Defendant was in the middle lane of traffic when plaintiff was struck:
The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of evidence that established the defendant driver was negligent in failing to see what there was to be seen and in failing to exercise due care in avoiding the collision with the plaintiff (see Vehicle and Traffic Law § 1146 [a] …).. By the defendant driver’s own admissions at his deposition, he never saw the plaintiff before the defendants’ vehicle struck the plaintiff; in fact, upon impact, the defendant driver thought “maybe a tire or something . . . hit [the defendants’] car,” and when he first saw the plaintiff, the plaintiff was lying on the pavement. Moreover, the record demonstrates that the road was flat, the weather was clear, and visibility was good. Further, the defendants’ vehicle was traveling in the middle lane of three southbound lanes, when it made contact with the plaintiff who was crossing from the right side of the road, “giving the defendant driver ample time to notice plaintiff crossing the street” … . Beityaaghoob v Klein, 2023 NY Slip Op 02488, Second Dept 5-10-23
Practice Point: Under the facts in this pedestrian-vehicle traffic accident case, striking plaintiff pedestrian was negligence per se (a violation of the Vehicle and Traffic Law) and defendant’s acknowledged failure to see the plaintiff constituted negligence. Any comparative negligence on plaintiff’s part is not to be considered. Plaintiff’s motion for summary judgment should have been granted.