You are here: / / LOANING PLAINTIFF’S DECEDENT A CAR WITH A BROKEN FUEL GAUGE WAS NOT...

LOANING PLAINTIFF’S DECEDENT A CAR WITH A BROKEN FUEL GAUGE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH; THE CAR RAN OUT OF GAS AND PLAINTIFF’S DECEDENT PULLED OVER ONTO THE SHOULDER OF A TWO-LANE ROAD; SHE WAS STRUCK BY A HIT AND RUN DRIVER WHILE PUTTING GAS IN THE CAR WITH A GAS CAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence ascribed to the defendant in this fatal traffic-accident case was not a proximate cause of the accident. Defendant allegedly loaned a car with a broken fuel gauge to plaintiff’s decedent. The car ran out of gas on a two-lane highway and plaintiff’s decedent pulled the car over onto the shoulder. When plaintiff’s decedent was attempting to put gas in the car with a gas can, she was struck and killed by a hit-and-run driver:

… [T]he plaintiff alleged that the defendant knew that his vehicle had a malfunctioning gas gauge but nonetheless “allowed the decedent . . . to borrow and use” the vehicle. The plaintiff further alleged that the defendant negligently failed to maintain the vehicle in proper working order and loaned the vehicle to the decedent while it was in a state of disrepair, and that this negligence caused the decedent’s injuries. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending, inter alia, that it was not foreseeable that running out of gas would result in the decedent being struck by a hit-and-run driver, and that the defendant’s alleged conduct was not a proximate cause of the accident. …

… [T]he defendant established, prima facie, that his alleged negligence was not a proximate cause of the accident. Even assuming, arguendo, that permitting the decedent to borrow a vehicle with a malfunctioning gas gauge “furnished the condition or occasion” for the accident … , under the circumstances here, a hit-and-run driver striking the decedent constituted an intervening act which was not foreseeable … . Biamonte v Biamonte, 2023 NY Slip Op 04296, Second Dept 8-16-23

Practice Point: Here plaintiff’s decedent was struck and killed by a hit and run driver after the car loaned to her by defendant ran out of gas. The broken fuel gauge in the loaned car was not a proximate cause of her death. The hit and run accident was deemed an intervening act which was not foreseeable.

 

You might also like
PLAINTIFF, AFTER A SUBSTANTIAL VERDICT IN A TRAFFIC ACCIDENT CASE, WAS ASSIGNED DEFENDANT’S RIGHT TO SUE DEFENDANT’S INSURER ALLEGING A BAD FAITH FAILURE TO SETTLE, THE INSURER’S MOTION TO DISMISS WAS PROPERLY DENIED (SECOND DEPT).
Before a Sex Offender Can Be Allowed to Represent Himself in a Mental Hygiene Law Section 10 Proceeding (to Determine Whether the Offender Should Be Civilly Confined), the Court Must Conduct the Same “Searching Inquiry” Required in Criminal and Certain Family Court Proceedings to Determine Whether the Offender Understands the Risks of Going Forward Without Counsel
(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).
Causes of Action Seeking Monetary Damages Were Not Incidental to the Article 78 Causes of Action and, Therefore, Were Not Subject to the Four-Month Statute of Limitations
DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).
NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT.
COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT).
“Lack of Capacity to Sue” Defense Waived If Not Raised in Pleadings/Court Should Not Have Decided Summary Judgment Motion by Searching the Record and Ruling On Issues Not Raised by Anyone

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE BANK IN THIS FORECLOSURE ACTION SUBMITTED AN AFFIDAVIT TO DEMONSTRATE... PLAINTIFF, AT HER DEPOSITION, COULD NOT IDENTIFY THE CAUSE OF HER STAIRWAY SLIP...